Opinion
704272/2013
07-22-2016
Jack Vitale and DIANE VITALE, Plaintiffs, v. RLD Group, LLC, ARTEC CONSTRUCTION AND DEVELOPMENT CORP., TOP GRADE EXCAVATING NEW YORK, INC. FALCON CONSTRUCTION & DEVELOPMENT, LLC, CERTIFIED TESTING LABORATORIES, INC., RICHARD J. ZALOUM, AON RISK SERVICES NORTHEAST, INC., TRAVELERS INDEMNITY CO. OF AMERICA, and TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Defendants.
The following electronically filed documents read on this motion by plaintiffs pursuant to CPLR 3212 granting plaintiffs summary judgment on liability: Papers Numbered Notice of Motion-Affidavits-Exhibits EF 112 -138 RLD Group, LLC, Artec Construction and Development
Corp., and Falcon Construction & Development,
LLC's Opposition-Exhibits EF 146 - 148 Certified Testing Laboratories, Inc. and Richard
J. Zaloum's Opposition-Exhibits EF 149 -171 Top Grade Excavating New York, Inc.'s Opposition
Exhibits EF 172 - 175 Reply Affirmation EF 176
This is an action to recover damages sustained to property owned by plaintiffs, located at 73-08 Ditmars Boulevard, East Elmhurst, New York, allegedly arising from excavation and construction work performed by defendants.
Plaintiffs commenced this action by filing a summons and verified complaint on October 7, 2013. All defendants interposed answers. By Stipulation, the action was dismissed against defendants Travelers Indemnity Co. of America, Travelers Property Casualty Co. of America, and AON Risk Services Northeast, Inc.
Defendant RLD Group, LLC (RLD) is the fee owner of the real property adjacent to plaintiffs' property and located at 73-02/04 Ditmars Boulevard, East Elmhurst. Artec Construction and Development Corp. (Artec) was the general contractor for the project. Top Grade Excavating New York, Inc. (Top Grade) was hired as a sub-contractor to perform the excavation work. Falcon Construction & Development, LLC (Falcon) was contractually hired by Artec as a general contractor. Certified Testing Laboratories (CTL) was hired by defendants RLD and Artec to supervise the construction. Richard Zaloum (Zaloum) is the Chief Engineer of CTL and a licensed professional engineer who was supervising the project. Plaintiffs contend that due to defendants' excavation activities their property was damaged. Based on such, plaintiffs move for summary judgment on the issue of liability.
In support of the motion, plaintiffs submit an affidavit from Zaloum dated May 12, 2012. Zaloum affirms that although RLD's sheet piling was performed properly and in accordance with the New York City Building Code and professional standards, and although the ground surface vibrations induced by the sheet piling were within acceptable limits, given the age and pre-existing condition of plaintiffs' building, plaintiffs' building was more susceptible to vibration-related damages. Based on the vibration related damage to plaintiffs' building, he revised the excavation shoring plans. He affirms that he anticipated that the new technique would further reduce ground surface vibration, and thus, reduce the likelihood of damage to plaintiffs' property.
Plaintiffs also submit an affidavit from their son, Jack Vitale, who was responsible for the day-to-day management of the building. Jack Vitale affirms that he personally observed defendants' excavation activities. Prior to defendants' construction, the subject home was in good condition and was rented to two tenants. There were no leaks from the roof, the exterior and interior walls were free from cracks, all doors opened and closed properly, and all floors were plumb. He observed defendants' workers chipping away at the foundation wall of plaintiffs' property. He called the Department of Buildings (DOB) and submits copies of the resulting DOB violations related to defendants' excavation activities. Specifically, on June 9, 2011, DOB issued a violation to defendants for failure to provide protection at sides of excavation. The violation also notes that at the time of inspection, there were three men working with an excavation of approximately ten feet, and the excavation was done without providing proper protection like shoring and bracing. On March 6, 2012, DOB performed an inspection and issued a violation noting that there was a failure to safeguard all persons and property affected by construction operations, and there is a diagonal crack in the brick facade wall at plaintiffs' property. On April 29, 2012, a full stop work order was served due to the excavation undermining plaintiffs' property. Jack Vitale affirms that there are severe cracks and damage to plaintiffs' property. Both the foundation and roof leak, doors no longer close, and the floors tilt. Due to the damage, plaintiffs' property has been vacant for three years. He also submits photographs showing the subject damage.
Plaintiffs also submit the affidavit of Frank Quatela, a licensed architect, dated April 18, 2016. On April 29, 2012, he observed that excavation, sheeting, and shoring had been recently performed at defendants' property, which is directly adjacent to plaintiffs' property. The foundation of plaintiffs' property was fully exposed, and portions of plaintiffs' concrete foundation had been chopped away. He concludes that the excavation and construction activities had caused severe stress cracks in the foundation, masonry wall, interior partitions, cellar slabs, and exterior walkways and paths. The foundation and exterior western walls were out of plumb. Floors had shifted out of level and sunk down towards the area of the adjacent shoring activity. The southwestern corner of the house had a severe crack. Doors no longer opened and closed. He re-visited the site on April 15, 2014, and observed that the condition of the subject property had worsened. He affirms that plaintiffs' property is no longer habitable.
Based on the submitted evidence, plaintiffs' counsel, Simon H. Rothkrug, Esq., contends that summary judgment should be granted as there is no issue on the issue of liability (citing American Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903 [2d Dept. 2015]). Under the strict liability statute, defendants RLD, Artec, Top Grade, and Falcon are liable as parties who caused the excavation. Defendants Zaloum and CTL are liable because they were not merely engineers who designed the project, but were supervisors responsible for overseeing the project and its safety, including ensuring the safety of plaintiffs' property.
In opposition, defendants RLD, Artec, and Falcon submit an attorney affirmation from Namita K. Mehta, Esq., contending that the motion is premature as non-party witness Jack Vitale has not yet been deposed, and plaintiffs have only recently been deposed. Counsel also contends that plaintiffs failed to demonstrate that defendants violated Administrative Code of the City of New York 28-3309.4 (Section 28-3309.4) because there is no indication as to the depth or location of defendants' excavation work.
Defendant Top Grade submits an attorney affirmation in opposition to the motion from Cory Frank, Esq., contending that plaintiffs' motion is premature and that plaintiffs' have failed to show that defendants violated Section 28-3309.4. Additionally, counsel contends that plaintiffs failed to demonstrate that the excavation work proximately caused their damages.
Defendants CTL and Zaloum submit an affirmation from counsel Christopher B. Roberta, Esq., arguing that the motion should be denied and summary judgment dismissing plaintiffs' claims against CTL and Zaloum should be granted on the ground that Section 28-3309.4 imposes liability only upon parties who cause the excavation to be made. Counsel contends that neither CTL nor Zaloum were the person who made the decision to excavate nor the contractor who carried out the physical excavation (citing American Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903 [2d Dept. 2015]; 87 Chambers LLC v 77 Reade, LLC, 122 AD3d 540 [1st Dept. 2014]).
Defendants CTL and Zaloum also submit an affidavit from Joseph Palmieri, PE of PalMar Engineering. Mr. Palmieri affirms that the vibration was generated from the demolition of the structures prior to any excavation. Mr. Palmieri visited the subject premises on August 1, 2011. CTL and Zaloum also submit photographs taken on May 3, 2011, prior to the excavation, which depict a large crack in the east wall of plaintiffs' property, multiple cracks in the west wall, and cracks in the chimney.
Based on the evidence submitted by defendants CTL and Zaloum, counsel contends that there is a question of fact as to whether the damage was caused by vibrations from the demolition of the structures or from the excavation activities. Additionally, CTL and Zaloum submit multiple DOB complaint reports to indicate that plaintiffs' home was not shaking and there were no vibrations as alleged by plaintiffs. Counsel also contends that the motion is premature as plaintiffs' deposition transcripts have not yet been provided and non-party Jack Vitale has not yet been deposed. Thus, the extent of the damage resulting from the demolition of the previous structures remains within the sole knowledge of plaintiffs, and therefore, summary judgment must be denied. Further, counsel contends that Mr. Quatela's affidavit must be disregarded as plaintiffs failed to qualify him as an expert in this matter. Lastly, plaintiffs failed to demonstrate that strict liability applies as the ten foot threshold was never crossed.
Upon a review of the motion papers, opposition thereto, and reply, this Court finds as follows:
Section 28-3309.4 imposes strict liability on any person who causes an excavation to be made. There is no requirement that the depth of the excavation be at least ten feet. As such, plaintiffs have demonstrated their prima facie entitlement to summary judgment based solely on defendant Zaloum's affidavit stating that excavation activities were being performed, and plaintiffs' building was damaged by such activities.
As to defendants' argument that the age and pre-existing condition of plaintiffs' property raises an issue of fact as to causation, such argument is relevant to the issue of damages, but does not factor into a proximate cause analysis under Section 28-3309.4 (see American Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903 [2d Dept. 2015]). Similarly, defendants' argument that the demolition rather than the excavation caused the damage, is relevant to the extent of damage caused by the excavation activities. Accordingly, although defendants contend that the motion is premature because Jack Vitale, who defendants allege is the sole person with knowledge of the condition of plaintiffs' property prior to the excavation activities, has not yet been deposed, the motion is not premature because such knowledge is relevant to the measure of damages.
Turning to defendants CTL and Zaloum's argument that they did not cause the excavation to be made, and thus, are not strictly liable pursuant to Section 28-3309.4, this Court finds that both CTL and Zaloum were persons who caused the excavation to be made. Unlike the architect in American Sec. Ins. Co. v Church of God of St. Albans, defendants CTL and Zaloum were contractually bound to provide supervision over the project. Additionally, in his affidavit dated May 15, 2012, Zaloum affirms that he even revised the construction plans due to the vibration-related damage to plaintiffs' property and the DOB stop work order. Specifically, Zaloum states that he revised the plans to provide for a different excavation shoring technique in anticipation that the new technique would further reduce ground surface vibration, and thus, further reduce the likelihood of damage to plaintiffs' property. Therefore, unlike the architect, defendants CTL and Zaloum assumed responsibilities related to the excavation as they did have control over and were responsible for the methodology employed and the safety precautions taken during the excavation process. Accordingly, this Court finds that defendants CTL and Zaloum caused an excavation within the meaning of Section 28-3309.4, and thus, are strictly liable.
Accordingly, and based on the reasons set forth above, it is hereby
ORDERED, that plaintiffs' motion is granted, plaintiffs shall have partial summary judgment on the issue of liability against defendants RLD Group, LLC, Artec Construction and Development Corp., Top Grade Excavating New York, Inc., Falcon Construction & Development, LLC, Certified Testing Laboratories, Inc., and Richard J. Zaloum, and the Clerk of Court is authorized to enter judgment accordingly; and it is further
ORDERED, that upon completion of discovery on the issue of damages, filing a Note of Issue, and compliance with all the rules of the court, this action shall be placed on the trial calendar of the court for a trial on damages. Dated: July 22, 2016 Long Island City, NY