Opinion
Index No. 514453/2018
03-20-2019
REBECCA CHI WAI LAM, XUE MING PAN, CUI MEI LI, HUA HUI LIN and KIT LAI LIN CHEE, Plaintiffs, v. 933 60th STREET REALTY INC., XIN LONG DAI, GROUND TO SKY CITY BUILDERS CORP., S M TAM ARCHITECT, PLLC, WSC GROUP LLC, "JOHN AND JANE DOE 1-10," and "XYZ COMPANY 1-10", Defendants.
NYSCEF DOC. NO. 87
DECISION / ORDER
Motion Seq. No. 3
Date Submitted:1/31/19
Cal No. 25Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendant S M Tam Architect PLLC's motion to dismiss pursuant to CPLR 3211(a)(1) and ( 7).
Papers | NYSCEF Doc. |
|---|---|
Notice of Motion, Affirmation and Exhibits Annexed | 65-75 |
Affirmation in Opposition and Exhibits Annexed | 81-83 |
Reply Affirmation | 84 |
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
This is an action for property damage allegedly caused to plaintiffs' properties as a result of excavation work at 1759 Bay Ridge Parkway, which is adjacent to the plaintiffs' properties. The complaint includes claims against all defendants sounding in negligence, private nuisance, trespass, negligent hiring, negligent supervision, negligent design, encroachment, declaratory judgment, injunctive relief against excavation and construction, injunctive relief seeking removal of trespassing and encroaching structures, and ten causes of action under various sections of article 28 of the Building Code, as well as a professional malpractice claim against the defendant architect, S M Tam Architect PLLC. Plaintiffs initially brought an order to show cause seeking a preliminary injunction, which included a temporary restraining order stopping all work at the site. On the initial return date, the order to show cause was adjourned for plaintiffs to provide an affidavit from an architect or engineer to substantiate the plaintiffs' allegations of property damage and trespass. The temporary restraining order was modified to limit its scope to the back half of the construction site, which is closest to the plaintiffs' properties, which are located on the other side of the block, that is, Block 6215. The request for a preliminary injunction was ultimately denied by the court, based upon plaintiffs' failure to substantiate their claims of property damage and trespass. It should be noted that while one attorney brought this action and the order to show cause on behalf of all five plaintiffs, by the end of 2018, he only represented plaintiffs Lin and Chee and not the other three plaintiffs, who are now pro se.
S M Tam Architect PLLC now moves to dismiss the complaint and all cross claims against it, contending that it owed no duty to the plaintiffs under its contract with the defendant property owner or in negligence; that the documentary evidence establishes that the plaintiffs' intentional tort claims should be dismissed as S M Tam Architect had no role in the excavation work and that plaintiffs' NYC Building Code § 28 claims should be dismissed as S M Tam Architect was not the party who made the decision to excavate or the contractor who carried out the excavation; that the causes of action for a declaratory judgment and for an injunction have no merit in the absence of any evidence of any trespass or encroachment on its part, and inasmuch as S M Tam Architect has established that it had no role in performing the allegedly damaging excavation work; and that the cross claims for contribution and indemnification against S M Tam Architect fail, as a matter of law, in the absence of any contractual or statutory duty to the co-defendants.
Plaintiffs Hua Hui Lin and Kit Lai Lin Chee oppose the motion and dispute that S M Tam Architect had no duty to them. They argue that they have pled a valid claim for negligent supervision of the work and that they properly allege causes of action against S M Tam Architect based upon violations of various subdivisions of § 28 of the New York City Building Code with respect to excavation/demolition.
Counsel for plaintiffs no longer represents the other named plaintiffs, Rebecca Chi Wai Lam, Xue Ming Pan and Cue Mei Li, who are now pro se. They have not opposed S M Tam's motion. Further, there was no opposition submitted by any of the co-defendants to movant's request that the court dismiss their cross-claims.
Under CPLR 3211(a)(1), the movant has the burden of showing that the relied-upon documentary evidence "resolves all factual issues as a matter of law, and conclusively disposes of the . . . claim" (Scadura v Robillard, 256 AD2d 567 [2nd Dept 1998]; see also Leon v Martinez, 84 NY2d 83, 88 [1994] [documentary evidence must conclusively establish a defense to the asserted claim as a matter of law]). In determining a motion to dismiss pursuant to CPLR 3211 (a)(7), the court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v Daimler Chrysler Corp., 292 AD2d 118 [1st Dept 2002]). On such a motion, the court must accept as true the factual allegations in the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom (Dunleavy v Hilton Hall Apartments Co., LLC, 14 AD3d 479, 480 [2nd Dept 2005]; see also Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
Here, S M Tam Architect has come forward with documentary evidence that conclusively establishes a defense as a matter of law, under CPLR § 3211(a)(1), and has shown that the complaint fails to state a cause of action against it, under CPLR § 3211(a)(7), and that the cross claims against it should be dismissed as well. S M Tam Architect has submitted its contract with the defendant property owner and an engagement letter between the defendant property owner and an engineer for the underpinning designs, as well as the affidavit of its principal, that show that S M Tam Architect had no contractual relationship with plaintiffs, nor any responsibility for the underpinning work, or for overseeing the excavation work, from which a duty in tort to a party not in privity of contract could arise. S M Tam Architect's contract with the defendant owner expressly excluded "support of excavation application" and "piling design" and provides that SM Tam Architect "shall not have control or charge of, shall not supervise, and shall not be responsible for construction means, methods, techniques, sequences, or procedures, for safety precautions and programs in connection with Project, for failure of any contractor or subcontractor to carry out its respective work in accordance with the contract documents."
Thus, S M Tam Architect has demonstrated that it had no contractual obligations concerning excavation or underpinning from which a duty to plaintiffs could have arisen (see Am. Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903, 905 [2d Dept 2015] [architect's "contractual obligations to the Church do not give rise to tort liability in favor of the plaintiffs, as his contract with the owner did not specifically impose any duties with respect to the excavation phase of the project and expressly stated that (architect) did not have control over, and was not responsible for, the construction means and methods or the safety precautions taken in connection with the work"]; 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991, 994 [2d Dept 2013] [architect who was not retained to provide any services related to protection of adjacent property granted summary judgment]). Further, S M Tam Architect has shown that it was not in privity with plaintiffs, nor did it have a relationship with plaintiffs that was the functional equivalent of privity, from which a professional malpractice claim could arise (see Sutton Apartments Corp. v Bradhurst 100 Dev. LLC, 107 AD3d 646, 648 [2d Dept 2013] ["The tort claims against the architect fail for lack of contractual privity, or the functional equivalency of privity"]).
Further, inasmuch as S M Tam Architect has shown that it had no role or responsibility for the design, implementation or supervision of the excavation and underpinning work, which is the work that allegedly damaged plaintiffs' properties, nor had it carried out the physical excavation work, there is no basis for liability under § 28 of the New York City Building Code (See Am. Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903, 905 [2d Dept 2015] [Architect who prepared plans which included drawings for the underpinning that was to go beneath the building on the adjacent property "made a prima facie showing that he could not be held liable pursuant to that section by establishing that he was neither the person who made the decision to excavate nor the contractor who carried out the physical excavation work"]).
Finally, inasmuch as S M Tam Architect had no contractual or statutory obligation with respect to the excavation or the underpinning, the dismissal of the cross claims against it, which is not opposed, must also be granted.
Accordingly, it is
ORDERED that the motion is granted and the complaint and all cross claims against S M Tam Architect PLLC are hereby severed and dismissed.
This constitutes the decision and order of the Court. Dated: March 20, 2019
ENTER:
/s/_________
Hon. Debra Silber, J.S.C.