Opinion
2750-04.
Decided September 11, 2006.
Mohen Treacy, LLP, Locust Valley, New York, Counsel for Plaintiff.
Steven G. Rubin Associates, P.C. Melville, New York, Counsel for Defendants, (for Anron Heating Air Conditioning).
Kreig Associates, P.C. Dix Hills, New York, Kreigh Associates, P.C., (for Counsilman Hunsaker)
Cornelia Mogar, Esq., Assistant Attorney General, Albany, New York, (for Empire State Development Corp. and Dormitory Authority)
Law Office of Irwin M. Echtmen, P.C., New York, New York, (Attorney for Federman Design Construction Consultants Inc.)
John P. Krol, Esq., Rockville Centre, New York, (for Hatzel Buehler, Inc.)
George D. Argiriou, Esq., Hicksville, New York, (for Keyspan Corp. and Roy Kay, Inc.)
Milber, Makris, Plousadis Seiden, LLP, New York, (for Mariano D. Molina, P.C. and Richard Dattner Architect, P.C.)
Ingram, Yuzek, Gainen, Carroll Bertolotti, LLP, New York, New York, (for Robert Schwartz Associates)
Zeltin DiChiara, LLP, New York, New York, (for Severud Associates)
McElroy, Deutsch, Mulvaney Carpenter, LLP, New York, New York, (for Stonewall Contracting Corp.)
Goetz Fitzpatrick, LLP, New York, New York, (for Tishman Construction Corp. Of New York).
Third-party Defendant Severud Associates ("Severud") moves for summary judgment pursuant to CPLR 3212 on the remaining cross-claims (converted to third-party claims) asserted against it by Defendants/Third-party Plaintiffs, Richard Dattner Architect P.C. ("Dattner"), Mariano D. Molina, P.C. ("Molina"), Councilman Hunsaker ("Hunsaker"), Federman Design Construction Consultants, Inc. ("Federman"), Robert Schwartz Associates ("RSA"), Roy Kay, Inc. ("Roy Kay"), Keyspan Corporation ("Keyspan") and Anron Heating and Air Conditioning, Inc. ("Anron").
BACKGROUND
This action originally arose from deficiencies in the mechanical system for Nassau County's Aquatic Center. On February 1, 1996, Plaintiff Nassau County ("Nassau") entered into a written contract with Defendant Empire State Development Corporation ("ESDC") to design, develop and construct the Aquatic Center. ESDC then entered into a written contract with Defendant Dormitory Authority of the State of New York ("DASNY").
ESDC retained Defendant Richard Dattner Architect P.C. ("Dattner") to provide architectural services. Dattner retained six consultants for additional professional services for the project. Among those consultants, Severud was retained by Dattner to provide structural engineering services.
Construction on the project began in 1996. It was completed in March 1998. In 2004, Nassau filed a complaint against all parties involved in the design, development and construction of the project. Nassau's claims relate to certain defects with the mechanical ductwork and certain mechanical hangars in and around the Aquatic Center pool.
In answering the verified complaint, many Defendants brought cross-claims for indemnification and/or contribution against their co-Defendant's including Severud.By Stipulation of Discontinuance without prejudice dated August 25, 2005, Nassau discontinued its action against Severud. Subsequently, both ESDC, DASNY, and several other co-Defendant's agreed to execute the Stipulation of Discontinuance with regard to Severud.
However, some of the co-Defendants decided to continue prosecuting their cross-claims for contribution and indemnity against Severud. By order of this Court dated March 24, 2006, the remaining cross-claims were converted into a third-party claim for contribution and indemnification. These claims include assertion of entitlement to contribution by Dattner, Molina, Hunsaker, RSA, Anron, Federman, Roy Kay/Keyspan and Tishman and a claim for contractual and common law indemnification on behalf of Dattner.
Severud now moves, without opposition, for summary judgment dismissing the remaining third-party claims asserted against it. Severud alleges that there is an absence of any issue of material fact with respect to its involvement with or responsibility for any of Nassau's purely mechanical claims.
DISCUSSION
A party is entitled to summary judgment when it "makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 NY2d. 851, 853 (1985). To succeed on its motion, Severud must prove that no triable issues of fact exist with regard to its involvement with third-party claimants in the construction of the Aquatic Center.
A. Severud's Documentary Evidence
"Any form of evidence, documentary or otherwise, may be considered on a motion for summary judgment." Wilkinson v. Skinner, 34 NY2d 53 (1974). The evidence proffered by Severud is the stipulation of discontinuance and the affidavits of Jeffrey Yick and Brian A. Falconer. The stipulation of discontinuance is not sufficient to prove that co-Defendants are not entitled to contribution or indemnification from Severud. It does not conclusively resolve all factual issues of the remaining Defendants who have asserted cross-claims; now third-party claims.
The affidavit of Jeffrey Yick, Severud's attorney does not establish prima facie entitlement to summary judgment. An attorney's affidavit, unless the attorney has first hand knowledge of the facts which is the exception rather than the rule has no probative force. Zuckerman v. City of New York, 49 NY2d 557 (1980); and Davenport v. County of Nassau, 279 AD2d 497 (2nd Dept. 2001). Mr. Yick has not established that he had first hand knowledge of the relevant facts of this case.
The affidavit of Brian Falconer, a professional engineer and an Associate Principal of Severud, in analyzing Severud's obligations under the subcontract with Dattner, establishes that such work is not encompassed in or part of the breaches alleged in the verified complaint. This affidavit is made by someone with first hand knowledge of the relevant facts. Falconer's affidavit resolves all factual issues. Therefore, Severud has established prima facie entitlement to summary judgment. The burden thus shifts to the Third-party Plaintiffs to establish that questions of fact exist. See, Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). However, there is no opposition to this motion.
B. Claims of Contribution
The basic requirements for contribution, as outlined in Dole v. Dow Chemical Co., 30 NY2d 143 (1972), and codified in CPLR Article 14, is that the culpable parties must be subject to liability for the same personal injury, injury to property or wrongful death. Nassau Roofing Sheet Metal Co. v. Facilities Dev. Corp., 71 NY2d 59, 603 (1988).
The documentary evidence set forth by the Third-party Plaintiffs to defeat this motion is contained in the verified answer. Each Third-party Plaintiff alleges that Severud, then as a co-Defendant, "shall be liable to [them] for contribution on the basis of apportionment of responsibility for the alleged occurrence." They further allege that Severud committed "careless, reckless, negligent, act[s] of omission or commission."
"In order to defeat a motion for summary judgment, a party opposing the motion must come forward with specific and detailed allegations substantiated by evidence in the record, and mere conclusory allegations will not suffice." Adams v. Resseguie, 87 AD2d 699, 700 (3rd Dept. 1982). The cross-claims alleged in the verified answer lack specificity with regard to Severud. Therefore, because Severud has properly supported its motion for summary judgment, such relief should be granted.
C. Claim of Indemnification
In a claim for indemnification, the party held legally liable attempts to shift the entire loss to the actual wrongdoer and seeks full reimbursement. Rosado v. Proctor Schwartz, Inc., 66 NY2d 21, 24 (1985). The only remaining indemnification claim is a common law and contractual indemnification claim asserted by Dattner. The basis for the contractual claim lies in the contract that exists between Severud and Dattner. This contract contains an indemnification clause. However, the existence of this contract is insufficient to defeat Severud's motion for summary judgment. Severud has made a prima facie showing of entitlement to summary judgment by asserting that its involvement in the project had no relation to the problems that ultimately arose. Dattner has failed to oppose this motion.
Severud has submitted Dattners' verified answer. In it Dattner alleges that it is entitled to common law and contractual indemnification "based upon the careless, reckless, negligent, acts of omission or commission and/or breach of contract and/or breach of statute and/or gross negligence of the said co-defendants [including Severud]." This statement is devoid of specifics and replete with conclusions. See, Adams v. Resseguie, supra. Therefore, it is not sufficient to defeat Severud's motion for summary judgment.
Accordingly, it, is,
ORDERED, that Third-party Defendant's motion to for summary judgment dismissing the contribution claims is granted; and it is further,
ORDERED, that Third-party Defendant's motion for summary judgment dismissing the indemnification claim is granted.
This constitutes the decision and order of the Court.