The opinion
Board of Mgrs. of Schumacher Condominium v 304
Mulberry St. Operating Co., L.L.C.
2024 NY Slip Op 33841(U)
October 28, 2024
Supreme Court, New York County
Docket Number: Index No. 150296/2021
Judge: Louis L. Nock
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 150296/2021
NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LOUIS L. NOCK PART 38M
Justice
---------------------------------------------------------------------------------X INDEX NO. 150296/2021
BOARD OF MANAGERS OF SCHUMACHER
CONDOMINIUM, and 36 BLEECKER STREET LLC, MOTION DATE 01/09/2024
Plaintiffs, MOTION SEQ. NO. 002
-v-
304 MULBERRY STREET OPERATING COMPANY, L.L.C.,
BROAD STREET DEVELOPMENT, LLC, FOUNDATIONS
DECISION + ORDER ON
GROUP I, INC., BENCHMARK CONTRACTING INC.,
LONG ISLAND CONCRETE INC., and LANGAN MOTION
ENGINEERING AND ENVIRONMENTAL SERVICES, INC.,
Defendants.
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The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 104, 105, 106, 107,
108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128,
129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149,
150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 162, 168, 169, 170, 171, 172, 173, 175, 176, 177,
178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198,
199, 202, 203, 204, 205, 207, 208, and 214
were read on this motion for SUMMARY JUDGMENT .
LOUIS L. NOCK, J.S.C.
This action arises out of an excavation adjacent to the building located at 36 Bleecker
Street, New York, New York (the “adjoining premises”), at the construction project located at
304 Mulberry Street (the “project”), which excavation is alleged to have damaged the adjoining
premises. Presently before the court is plaintiffs’ motion for summary judgment on their first
cause of action for strict liability under the Building Code in favor of plaintiff the Board of
Managers of the Schumacher Condominium (the “Board”). Defendant Long Island Concrete
Inc. (“LIC”) cross-moves for summary judgment dismissing the third and fourth causes of action
to the extent asserted against it, as well as any cross-claims by the other defendants based on
those causes of action. The motion for summary judgment is granted as to liability only, and the
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cross-motion for summary judgment is dismissed as academic, in accordance with the following
memorandum decision.
Background
The Parties1
The Board is the governing body of the adjoining premises. Plaintiff 36 Bleecker Street
LLC (“36 Bleecker”) owns one of the units purportedly damaged by defendants’ excavation
work. The damage to 36 Bleecker’s unit is not the subject of the present motion.
Defendant 304 Mulberry Street Operating Company, L.L.C. (“304 Mulberry”) owns the
building at which the project was located (license agreement, NYSCEF Doc. No. 119).
Defendant Broad Street Development, LLC (“Broad Street,” and collectively with 304 Mulberry,
“Owner”) is a parent or affiliate of 304 Mulberry (Bass aff., NYSCEF Doc. No. 106, ¶ 5). 304
Mulberry hired defendant Foundations Group I, Inc. (“Foundations Group”) as construction
manager for the project, which was to demolish the old building located at 304 Mulberry Street
and construct a new twelve-story building (construction manager agreement, NYSCEF Doc. No.
115), and Foundations Group subcontracted the excavation work to defendant Long Island
Concrete Inc. (“LIC”) (subcontract, NYSCEF Doc. No. 116). Defendant Langan Engineering
and Environmental Services, Inc. (“Langan”), provided “Geotechnical Engineering services” for
the project, including the designs and plans ultimately used for the excavation (Langan
agreement, NYSCEF Doc. No. 117 at 15-20 of 119).
The Project
The actual facts of the events leading to the damage to the adjoining premises are largely
undisputed. On May 30, 2017, the Board and Owner entered into a license agreement, pursuant
1
Defendant Benchmark Contracting Inc. (“Benchmark”) is not implicated by the motion.
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to which Owner would, among other things, arrange for certain protective devices and monitors
to be installed at the adjoining premises to protect the adjoining premises from damage caused
by the project (license agreement, NYSCEF Doc. No. 119 at 1). Installation of the monitors was
completed on May 12, 2017, and the excavation and foundation work on the project commenced
on November 22, 2017 (Bass aff., NYSCEF Doc. N0. 106, ¶ 9; Notice of Installation, NYSCEF
Doc. No. 125; notice of commencement, NYSCEF Doc. No. 126).
The Board retained nonparty Howard L. Zimmerman Architects & Engineers
(“HLZAE”) as a consultant to review Langan’s plans, inspect the adjoining premises for
damages, and review the monitoring reports provided by Owner’s monitoring subcontractor,
nonparty Domani Inspection Services (“Domani”) (Bass aff., NYSCEF Doc. No. 106, ¶ 11;
Tajzler aff., NYSCEF Doc. No. 107, ¶¶ 4-8). Beginning in October 2018 and continuing through
September 2020, HLZAE observed interior damage in the A-line units of the adjoining premises,
as well as inoperable windows and step-cracking in the exterior facades of the building (Tajzler
aff., NYSCEF Doc. No. 107, ¶ 10; inspection reports 20, 23, 26, 28R, 37, NYSCEF Doc. No.
133). Alexei Tajzler, HLZAE’s resident engineer and Director, opines that the damage was
caused by the excavation designed by Langan, and carried out by Foundations Group and LIC
(Tajzler aff., NYSCEF Doc. No. 107, ¶ 11). HLZAE then retained nonparty Musler Rutledge
Consulting Engineers (“MCRE”) to provide an additional opinion (id., ¶ 12). Michael T.
McMaster, a professional engineer employed by MRCE, reviewed the project record and came to
the same conclusion (McMaster aff., NYSCEF Doc. No. 108, ¶ 8; MCRE report, NYSCEF Doc.
No. 131). HLZAE also opined that the cost to repair the damage is $350,000, based on bids
obtained from several contractors (Tajzler aff., NYSCEF Doc. No. 107, ¶ 13; bid analysis,
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NYSCEF Doc. No. 157). Owner was informed of the damage to the adjoining premises by email
dated April 4, 2019 (NYSCEF Doc. No. 118).
Of the defendants, only Langan offers a competing expert analysis. Alan Poeppel, P.E., a
licensed engineer and Langan’s principal, admits that there was movement of the adjoining
premises, leading to the observed cracking and other damage (Poeppel aff., NYSCEF Doc. No.
172 at 10-12). However, he opines that Langan’s design work met all applicable standards for
such work, and that the damage to the adjoining premises was caused by LIC’s activities in
carrying out the excavation, as well as outside factors such as 36 Bleecker’s own
contemporaneous construction work (id. at 13-14). Saif Sumaida, Foundations Group’s
principal, avers that Foundations Group was retained after all excavation designs were
completed, and that Foundations Group did not alter the design, supervise LIC’s work on the
excavation, or carry out the excavation itself (Sumaida aff., NYSCEF Doc. No. 176, ¶¶ 8-13).
Standard of Review
Summary judgment is appropriate where there are no disputed material facts (Andre v
Pomeroy, 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof
to warrant judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562
[1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of
the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]
[internal citations omitted]). Once a movant has met this burden, “the burden shifts to the
opposing party to submit proof in admissible form sufficient to create a question of fact requiring
a trial” (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is
insufficient to merely set forth averments of factual or legal conclusions” (Genger v Genger, 123
AD3d 445, 447 [1st Dept 2014] [internal citation omitted]). Moreover, the reviewing court
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should accept the opposing party's evidence as true (Hotopp Assocs. v Victoria's Secret Stores,
256 AD2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all
reasonable inferences (Negri v Stop & Shop, 65 NY2d 625, 626 [1985]). Therefore, if there is
any doubt as to the existence of a triable fact, the motion for summary judgment must be denied
(Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).
Discussion
The Motion
The first cause of action is for strict liability pursuant to Section 3309 of the New York
City Building Code (the “Building Code”). The Building Code provides that “[a]djoining public
and private property, including persons thereon, shall be protected from damage and injury
during construction or demolition work” (NY City Bldg Code [Administrative Code of City of
NY, title 28, ch 7] § BC 3309.1).
Whenever soil or foundation work occurs, regardless of the depth of such, the
person who causes such to be made shall, at all times during the course of such
work and at his or her own expense, preserve and protect from damage any
adjoining structures, including but not limited to footings and foundations,
provided such person is afforded a license in accordance with the requirements of
Section 3309.2 to enter and inspect the adjoining buildings and property, and to
perform such work thereon as may be necessary for such purpose.
(NY City Bldg Code § BC 3309.4.) Where excavation work proximately causes damage
to an adjoining property, the owner, construction manager, and excavation subcontractor
are strictly liable for said damages (DFAWEAST, LLC v Friedland Properties Inc., 211
AD3d 462 [1st Dept 2022]). Liability also extends to design professionals who
“substantially contributed to the design and methodology employed during the excavation
process” (Georgitsi Realty, LLC v Armory Plaza, Inc., 213 AD3d 641, 648 [2d Dept
2023]).
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Here, plaintiffs have established prima facie entitlement to summary judgment for
the Board on the alleged violation of the Building Code, as the damage to the adjoining
premises is undisputed, and plaintiffs have provided expert testimony that the damage
was caused by the excavation work (DFAWEAST, LLC, 211 AD3d at 462). Owner,
Langan, Foundations Group, and LIC do not dispute the roles that they played in the
excavation. In opposition, these defendants fail to raise a triable issue of fact (Kershaw,
114 AD3d at 82). Where a party establishes prima facie entitlement to summary
judgment with expert testimony, an attorney affirmation on its own is insufficient to raise
a factual issue (e.g. Farrell v Ted's Fish Fry, Inc., 196 AD3d 893, 895 [3d Dept 2021]).
Only Langan submits an expert affidavit; Sumaida’s affidavit is not expert testimony and,
in any case, does not dispute the damage to the building or Foundations Group’s role as
construction manager. Contrary to Foundations Group’s argument, liability attaches to
the construction manager as a matter of law (DFAWEAST, LLC, 211 AD3d at 462).
Defendants’ citations to case law purportedly exonerating them for such liability are
factually distinguishable (e.g. Moskowitz v Tory Burch LLC, 161 AD3d 525, 526 [1st
Dept 2018] [evidence establishing damages was party admission of owner, and therefore
inadmissible as against architect and construction manager]; 492 Kings Realty, LLC v 506
Kings, LLC, 105 AD3d 991, 995 [2d Dept 2013] [dismissing claim against Domani
because it provided monitoring services and did not proximately cause plaintiff’s
damages]).
Defendants also fail to raise an issue of fact as to causation. All of the responding
defendants make one or both of the following arguments: that either the poor condition of
the building prior to the excavation or other causes such as 36 Bleecker’s
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contemporaneous construction work is the proximate cause of the Board’s damages.
Neither argument is availing. The condition of a building prior to adjoining excavation
does not factor into the proximate cause analysis under Section 3309.4 (211-12 N. Blvd.
Corp. v LIC Contr., Inc., 186 AD3d 69, 82 [2d Dept 2020]). Further, the Board is not
required to rule out any potential competing cause of its damages; it need only establish
that the excavation caused at least some part thereof (DFAWEAST, LLC, 211 AD3d at
463). Langan’s arguments regarding whether it exercised the requisite due care in its
work are also irrelevant; “[w]hen the facts bring the case within the statute, the duty and
liability which the statute imposes is absolute and unqualified” (Yenem Corp. v 281
Broadway Holdings, 18 NY3d 481, 490 [2012], citing Dorrity v Rapp, 72 NY 307 [1878]
[interpreting predecessor statute]).
Having found for the Board in terms of liability, however, the court finds that
plaintiff has not met its prima facie burden as to the amount of its damages. The measure
of real property damages is traditionally the lesser of the diminution of value of the
property or the cost of restoration (e.g. Arcamone-Makinano v Britton Prop., Inc., 156
AD3d 669, 672 [2d Dept 2017], lv denied 31 NY3d 907 [2018]). Tajzler opines that the
repair cost is $350,000, but the bid analysis submitted by plaintiffs includes four bids,
none of which are that high; the bid for Metro R Services is $340,291, and the bids from
the other three contractors are all below $300,000 (bid analysis, NYSCEF Doc. No. 157
at 2). While plaintiff is correct that it is incumbent on defendants to establish that the
repair costs are lower to raise a triable issue of fact, here plaintiff’s initial submission is
contradictory. Moreover, Tajzler does not address the manner in which he reached his
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opinion in detail and does not explain the difference between his opinion and the actual
bids received. Accordingly, the issue of damages must await trial.
Finally, defendants’ assertion that discovery is necessary before this motion can be
resolved is unavailing. Defendants do not establish that facts “essential to justify opposition may
exist but cannot [now] be stated” (CPLR 3212[f]; Morales v Amar, 145 AD3d 1000, 1003 [2d
Dept 2016] [The “mere hope or speculation that evidence sufficient to defeat a motion for
summary judgment may be uncovered during the discovery process is an insufficient basis for
denying the motion”]).
The Cross-Motion
LIC cross-moves to dismiss the third and fourth causes of action against it, as well as any
cross-claims asserted against it based upon such causes of action. The amended complaint
plainly states that the third and fourth causes of action are brought solely against 304 Mulberry
for breach of the license agreement (amended complaint, NYSCEF Doc. No. 110 at 15-17).
Accordingly, there is nothing to dismiss against LIC. 304 Mulberry, the only defendant who is a
party to the license agreement, does not allege a cross-claim arising out of the license agreement
against LIC. Again, as there is no cross-claim to dismiss, the cross-motion is dismissed as
academic.
Accordingly, it is hereby
ORDERED that plaintiffs’ motion for partial summary judgment on the first cause of
action in favor of plaintiff the Board of Managers of the Schumacher Condominium and against
defendants 304 Mulberry Street Operating Company, L.L.C., Broad Street Development, LLC,
Foundations Group I, Inc., Long Island Concrete Inc., and Langan Engineering and
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Environmental Services, Inc. is granted to the extent that said defendants are found liable to said
plaintiff on the first cause of action; and it is further
ORDERED that the amount of damages to which said plaintiff is entitled shall be
determined at the trial of this matter; and it is further
ORDERED that defendant Long Island Concrete Inc.’s cross-motion for partial summary
judgment is dismissed as academic for the reasons set forth above.
This constitutes the decision and order of the court.
ENTER:
10/28/2024
DATE LOUIS L. NOCK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
□ REFERENCE
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