Motion for Child Support in Roystar Investment Corp. v. United Industries And Construction Corp.| Trellis.Law

On January 14, 2019 a Motion-Secondary was filed involving a dispute between Roystar Investment Corp., and United Industries And Construction Corp., for Commercial Division in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------ X
ROYSTAR INVESTMENT CORP., : Index No.: 650229/2019
:
Plaintiff, :
:
-against- :
:
UNITED INDUSTRIES AND CONSTRUCTION :
CORP., :
:
Defendant. :
----------------------------------------------------------------- :
X

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

/s/ Juan C. Restrepo, Esq.
RICHTER RESTREPO PLLC
Attorneys for the Defendant United Industries
55 Broadway, 3rd Floor.
New York, N.Y. 10006
P: (347) 745.0375 ext. 2
E: Juan@RichterRestrepo.com

/s/, Eoin O’Mahony, Esq.
RICHTER RESTREPO PLLC
Attorneys for the Defendant United Industries
55 Broadway, 3rd Floor.
New York, N.Y. 10006
P: (347) 745.0375
Eoin@RichterRestrepo.com

Dated: May 16, 2020

1 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 4
PROCEDURAL HISTORY............................................................................................................ 6
PLAINTIFF’S CLAIMS ............................................................................................................... 10
APPLICABLE STANDARD........................................................................................................ 10
POINT I – DEFENDANT DID NOT MATERIALLY BREACH ANY EXPRESS OR IMPLIED
TERM OF THE DEMOLITION CONTRACT ............................................................................ 11
POINT II – THE EVIDENCE HAD HEREIN CONCLUSIVELY ESTABLISHES A DEFENSE
TO BREACH OF IMPLIED WARRANTY OF WORKMANSHIP ........................................... 16
POINT III – PLAINTIFF SEEKS IMPROPER MEASURES OF DAMAGES FOR THE
CAUSES OF ACTION PLEADED .............................................................................................. 17
CONCLUSION ............................................................................................................................. 22

2 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

TABLE OF AUTHORITIES

American List Corp. v. U.S. News & World Report, Inc., 75 N.Y.2d 38, 43, 550 N.Y.S.2d 18
590, 593 [1989]

Ashland Management v. Janien, 82 N.Y.2d 395, 401-402, 604 N.Y.S.2d 912, 914 [1993] 11, 17

Biotronik v. Conor Medsystems 22 N.Y.3d, 799, 805, 988 N.Y.S.2d 527, 530 [2014] 17

Bishop v. Maurer, 106 A.D.3d, 622, 623, 966 N.Y.S.2d 64, 65 [1st Dep’t, 2013] 10

Carnival Co. v. Metro-Goldwyn-Mayer, Inc. 23 A.D.2d 75, 77, 258 N.Y.S.2d 110, 112 10
[1st Dep’t, 1965]

Donkov Realty, LLC v. RADJB Realty, Inc., 2008 N.Y. Misc. LEXIS, 10020, 12, 2008 16
N.Y. Slip. Op. 31967(U), 16 [N.Y. Sup. Ct., 2008]

Esteve v. Abad, 271 A.D. 725, 727, 68 N.Y.S.2d 322, 324 [1947] 10

Graney Development Corp. v. Taksen, 92 Misc 2d, 764, 767, 400 N.Y.S.2d 717, 719 11
[Monroe County Sup. Ct., 1978]

Greenfield v. Philles Records, 98 N.Y.2d 562, 570, 750 N.Y.S.2d 565, 569 [2002] 11

Jenkins v. Etlinger, 55 N.Y.2d 35, 432 N.E.2d 580, [1982], 20

Milau Assocs. Inc. v. North Ave. Dev. Corp., 42 N.Y.2d 482, 489, 398 N.Y.S.2d 882, 16
887 [1977]

Pecile v. Titan Capital Group, LLC 96 A.D.3d 543, 544, 947 N.Y.S.2d 66, 67 [1st Dep’t, 10
2012]

Riverside S. Planning Corp. v. CRP/Extell Riverside L.P. 60 A.D.3d, 61, 66, 869 11
N.Y.S.2d 511, 516 [1 st
Dep’t, 2008]

Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 10
505 [1957]

W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 443 [1990] 11

3 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

PRELIMINARY STATEMENT

This matter is, on its face, straightforward by comparison to most proceedings before this

Court. Plaintiff retained Defendant to demolish the building at 242 West 22nd Street, New York,

NY 10011 (the “Premises” and/or “Site”). Demolition of the Premises would remove structural

support from the party wall shared with 240 West 22nd Street, New York, NY 10011 (the

“Adjoining Property” or “Adjoining Premises”); therefore, Defendant installed a series of

“Tiebacks” to secure the party wall, as required by the New York Building Code (the “Code”).

Plaintiff alleges breach of contract inasmuch as the infill of masonry around the Tiebacks is alleged

to have been carried out defectively, on which Plaintiff seeks to support a claim for significant

damages. However, there are a number of fatal legal and factual errors with Plaintiff’s presentation

of its case.

The evidence conclusively and reliably establishes that Defendant’s infilling of the

masonry pockets was both in conformance with the parties’ contract and generally acceptable

construction standards and workmanship. Beyond the expert opinions furnished with these papers,

Plaintiff’s own special inspector certified the proper installation of the Tiebacks in conformance

with the Plans, and the Department of Buildings (the “DOB”) signed-off on the demolition project

following its inspection. As regards the terms of the contract, the number of layers of brick (also

known as “wythes”) to be infilled was not a specification of the technical drawings and/or Plans

governing Defendants work, but a general section detail, and also not an express term of the

Demolition Contract between the Parties. Given that the evidence demonstrates that the work did

not breach any term of the Demolition Contract between the parties, the work, and that the work

conformed with generally acceptable construction standards and workmanship, Plaintiff fails to

make out a prima facie case for breach contract or implied warranty of workmanship.

4 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

Plaintiff’s case as to breach is primarily and substantially grounded on a report of Lane

Engineering Consulting, P.C. (“Lane Engineering”) dated August 9, 2016 (the “August 2016 Lane

Report”), the consulting engineers retained by the owners of the Adjoining Property, Ms. Melanie

Arwin and Mr. Bruce Baughman (collectively, the “Neighbors”). However, the August 2016 Lane

Report, and its conclusions regarding the placement of the Tiebacks, stability, fire rating and

waterproofing of the party wall, are flagrantly speculative, and do not meet any generally accepted

engineering standard. The conclusions and opinions of the author of the August 2016 Lane Report,

Mr. Douglas Lane, P.E., are discredited by his own admissions in testimony. Mr. Lane admitted,

during his deposition, that the August 2016 Lane Report relied entirely on self-serving pictures

taken by Ms. Arwin or her agents, and that he did not perform any independent verification,

measurements, calculations, drawings or inspections of the party-wall. Mr. Lane did not even

trouble to seek the Special Inspector’s monitoring reports, let alone review them, before reaching

the conclusion that the alleged “open pockets” at the party-wall compromised the structural

integrity of the wall. Mr. Lane later admitted in his deposition, contrary to the August 2016 Lane

Report’s speculation, that the claim of water infiltration to the basement was likely due to the

excavation activities at the Site, and not related to the Tiebacks or the alleged “open pockets.”

Plaintiff, rather than relying on their own Special Inspector, Domani Inspection Services

(“Domani Inspections”), essentially conceded to unfounded allegations made by the Neighbor and

their engineer, and voluntarily agreed to pay exorbitant sums to the Neighbor in order to continue

with the construction at the Site. Now, some three years after the DOB certified the work as

complete, Plaintiff seeks to recoup those costs against Defendant without any basis whatsoever.

Beyond failing to establish breach, Plaintiff has failed to prove that the damages claimed

are recoverable under any theory of contract law; they consist almost entirely of far-removed,

5 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

unforeseen, incidental damages. These damages were never agreed in the Parties’ contract, and

were neither anticipated nor contemplated to be recovered against the Defendant. The Defendant

never assumed any contractual responsibility to obtain access to the neighbor’s property (and

indeed specifically disclaimed such responsibility), and any damages stemming for the lack of

access to the Neighbor’s property are therefore not recoverable. Plaintiff cannot establish any

proximate or actual causation, due to the remote and unforeseeable character of the damages

claimed; no actual evidence was proffered (or exists) to conclusively show that the alleged lack of

complete infill of the Tieback pockets destabilized or damaged the shared party wall, created a less

than waterproof surface, or decreased the fire-rating capacity of the wall.

Moreover, the only physical damages alleged to have demonstrably occurred as a result of

the Tieback installation is the entry of rainwater into the cellar of the Adjacent Premises. But the

evidence elicited during discovery shows that between the time that the Defendant agreed (with

deep reservations) to “patch” the masonry pockets and the alleged infiltration of rainwater,

excavation work was carried out by the Plaintiff’s general contractor, C&S Construction (“C&S”),

on the Site which resulted, not only in a Stop Work Order, but in water filtration to the neighbor’s

basement.

Limiting the evidence to the terms of the contract between Plaintiff and Defendant and the

sworn deposition testimony of independent, impartial parties, the Defendant is entitled to summary

judgment as a matter of law, there being no triable issues of material fact at issue.

PROCEDURAL HISTORY

Plaintiff commenced this action by Summons and Complaint dated January 14, 2019, a

copy of which is annexed hereto as Exhibit “E”. Defendant joined issue by way of Answer dated

6 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

February 12, 2019, a copy of which is annexed hereto as Exhibit “F”. This is the first dispositive

motion to be brought in this case.

STATEMENT OF RELEVANT FACTS

On March 6, 2015, Plaintiff and Defendant executed a demolition contract (the

“Demolition Contract”) retaining Defendant as demolition contractor to perform, inter alia, a

“total demolition of the Premises entailing demolition down to grade, debris removal, party wall

Tiebacks (access and permission to be provided by others)” (the “Demolition Work”).

Domani Technical and Design (“Domani Technical”) was retained by Defendant on March

24, 2015 to prepare submittal documents in connection with the Demolition Work. Full demolition

plans (“the Plans”) were drafted as of April 10, 2015 and sealed on May 28, 2015. As is set out

more fully in the annexed Affidavit of Stephen Lampard, P.E., the drawings at DM-106.00

included certain general section details related to the installation of the Tiebacks to the shared party

wall between the parties: (i) open the joist pockets in the brick of the party wall at the locations

where the floor beams of the Adjacent Property meet the wall; (ii) to fasten Tiebacks to those joists

using lag bolts; (iii) to weld a threaded rod to the Tiebacks, with the rod extending back to the

opening in the party wall; (iv) to infill the pocket with brick masonry and (v) to secure that rod to

the wall using a nut tightened so as to compress a steel plate against the party wall. In relevant

part, the drawing of the Tiebacks indicates “After Rod Installation, infill pocket with brick

masonry”. A copy of the Tieback section of the drawings with general section detail is annexed to

the affidavit of Stephen Lampart, P.E. as Exhibit “Q”.

A DOB demolition permit was issued on October 30, 2015. The Plaintiff and Neighbor

concluded the negation and execution of an Access/License Agreement (the “First License

Agreement”) on January 21, 2016. This First License Agreement contained obligations on the part

7 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

of the Plaintiff to protect the Adjoining Property during the construction. The Defendant was not

a party of the First License Agreement nor assumed any liability or obligation from such. From

the Defendant’s daily timesheets, it appears that the Demolition Work was carried out throughout

February and March of 2016. In connection with the demolition work, Plaintiff (not Defendant)

retained Domani Inspection Services (“Domani Inspections”) to inspect the Demolition Work and

to provide DOB mandated reports and certifications. In turn, Domani Inspections inspected the

progress of the demolition work, including the Tiebacks, and provided inspection reports dated

February 25, 2016; March 15, 2016; April 8, 2016; April 25, 2016; and April 27, 2016. Each report

indicates work was carried out in conformance with the Plans. On June 24, 2016, the DOB signed

off on the Demolition Work as being complete.

On July 27, 2016, the Neighbors (specifically Ms. Arwin) expressed concern that the

Tieback pockets had not been infilled fully. This resulted in an August 2016 Lane Report, the

consulting Engineer retained by the Neighbors, which indicated, among other complaints, that the

masonry pockets created to install the Tiebacks had been left unfilled – and “the result of the lack

of infill is a destabilized masonry wall.” The report included pictures of the Neighbors’ attic that

were taken either by the Plaintiff’s neighbor, Ms. Arwin, herself or her handyman, and showed

“inner portions” of the party wall which admittedly had been already patched by the neighbor’s

handyman– without notice to the Plaintiff or Defendant. Initially, counsel for Plaintiff responded

by letter dated September 2, 2016 noting (correctly) that Lane Engineering never inspected the

work, and the report relied only on undated photographs and conversations had with the Neighbor,

and which failed to provide any reasonable basis for Lane Engineering’s assertions. A copy of

Cermele and Wood letter is annexed hereto as Exhibit “A”.

8 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

Ultimately, due to pressure to receive payment from Plaintiff and to settle any unfounded

disputes, on November 23, 2016, Plaintiff and Defendant executed a “Party Wall Patching

Agreement” (the “Patching Agreement”) whereby Defendant, without accepting liability, accepted

an offset in fees and agreed to open, inspect and, if necessary, re-fill every wall pocket as necessary

in exchange for payment of the balance owing under the Demolition Contract. However,

Defendant ultimately did not perform the work under this contract, by virtue of the following:

- Plaintiff insisted that Defendant pull new permits (necessitating the filing of new drawings)
before beginning the work, the unreasonableness of which is demonstrated by an email
from Ms. Celine Mo, Plaintiff’s Principal, dated July 14, 2017, to Hyman Kindler,
Neighbor’s counsel, indicating: “the infill work will performed under the permits that
[Plaintiff’s General Contractor] have in place. We have been in contact with Doug Lane
who has approved this and is aware of the work that needs to be done.” A copy of that
email is annexed hereto as Exhibit “B”;

- Plaintiff continually refused Defendant’s attempts to logistically arrange the performance
of work under the Patching Agreement, as illustrated by the email from Antonio Morales,
Defendant’s Principal, dated August 4, 2017, to Anthony Pupello, a representative of C&S
Construction and Consulting Group, LLC (“C&S”), Plaintiff’s General Contractor, which
states: “With respect to the latest letter we received, we would like to express that we've
been waiting since November 2016 to hear from Roystar Investment Corp so we can
mobilize and complete the work as said in the agreement signed on November 23rd 2016.”
A copy of that email is annexed hereto as Exhibit “C”;

- C&S was, in the intervening period, subject to a DOB Stop Work Order due to the
excavation work being carried out on the Premises, which was noted to risk adversely
affecting the adjoining structures. A copy of the Violation is annexed hereto as Exhibit
“D”.

On or about February 10, 2017, the Neighbors terminated the First License Agreement,

and entered into a Second License Agreement for ongoing construction activities. On or about July

6, 2017, Plaintiff retained C.A. Construction (“C.A.”) to replace United and perform the alleged

remediation work, which work appears to have been completed on or about January 2018.

9 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

PLAINTIFF’S CLAIMS

Plaintiff’s Complaint states two causes of actions: an action for breach of the Demolition

Contract based on Defendant “failing to install the Tie-Back System in accordance with the Plans”,

and an action for breach of Implied Warranty of Workmanship based on Defendant “installing the

Tie-back System defectively and not as required by the Plans”.

As a result of Defendant’s alleged breach, Plaintiff seeks recovery of: (a) liabilities to the

Neighbor incurred as a result of Defendants’ breach of contract; (b) Plaintiff’s costs and expenses

in renegotiating the First and Second License Agreement including Plaintiff and Neighbor’s legal

fees in negotiating and administering the License Agreements with the Neighbor; and (c)

Plaintiff’s costs and expenses incurred in remediating the allegedly defective work,.

APPLICABLE STANDARD

On a motion for summary judgment, the court must analyze all evidence in the light most

favorable to the party opposing the motion. Bishop v. Maurer, 106 A.D.3d, 622, 623, 966 N.Y.S.2d

64, 65 [1st Dep’t, 2013]. To grant summary judgment it must clearly appear that no material and

triable issue of fact is presented. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404,

165 N.Y.S.2d 498, 505 [1957]. Issue-finding, rather than issue-determination, is the key to the

procedure. Esteve v. Abad, 271 A.D. 725, 727, 68 N.Y.S.2d 322, 324 [1947]. Liberality, however,

is not to be used as a substitute for substance; allegations which are legally unsound an illusory

are properly dismissed. Carnival Co. v. Metro-Goldwyn-Mayer, Inc. 23 A.D.2d 75, 77, 258

N.Y.S.2d 110, 112 [1st Dep’t, 1965]. If a party tenders extrinsic proof, a complaint may dismissed

where such proof demonstrates that a material fact alleged by the plaintiff “is not a fact at all” and

that “no significant dispute exists regarding it”. Pechko v. Gendelman, 20 A.D.3d, 404, 406-407,

799 N.Y.S.2d 80, 82 [2nd Dep’t, 2005]. Where allegations are wholly conclusory, they are

10 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

insufficient to state a claim. Pecile v. Titan Capital Group, LLC 96 A.D.3d 543, 544, 947 N.Y.S.2d

66, 67 [1st Dep’t, 2012].

ARGUMENT

POINT I – DEFENDANT DID NOT MATERIALLY BREACH ANY EXPRESS OR
IMPLIED TERM OF THE DEMOLITION CONTRACT

Plaintiff has not, by its allegations of fact or subsequent evidence adduced during

discovery, demonstrated Defendant’s breach of contract, and no triable issue of material fact exists

in this respect.

It is a settled principle of contract construction that when the intent of the parties must be

determined by disputed evidence, or inferences outside the written words of the agreement, a

question of fact is presented. Ashland Management v. Janien, 82 N.Y.2d 395, 401-402, 604

N.Y.S.2d 912, 914 [1993]. Conversely, where the terms of a contract are clear and undisputed, no

issue of fact is presented. This comports with the established principle that when parties set down

their agreement in a clear, complete document, their writing should as a rule be enforced according

to its terms. W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 443 [1990].

A contract is unambiguous if, on its face, it is reasonably susceptible of only one meaning.

Greenfield v. Philles Records, 98 N.Y.2d 562, 570, 750 N.Y.S.2d 565, 569 [2002]. A court may

not, in the guise of interpreting a contract, add or excise terms or distort the meaning of those used

to make a new contract for the parties. Riverside S. Planning Corp. v. CRP/Extell Riverside L.P.

60 A.D.3d, 61, 66, 869 N.Y.S.2d 511, 516 [1st Dep’t, 2008]. A court will only imply terms which

must necessarily have been in the contemplation of the parties in making the contract. Graney

Development Corp. v. Taksen, 92 Misc 2d, 764, 767, 400 N.Y.S.2d 717, 719 [Monroe County Sup.

Ct., 1978].

11 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

The Demolition Contract required the installation of party wall Tiebacks, and incorporated

the Plans prepared by Domani Technical incorporating general specifications for their installation.

The Plans state: “After rod installation, infill pocket with brick masonry.” Neither the Plans nor

the Demolition Contract dictates the thickness of infill, whether 2 or 3 wythes of brick.

Determining the extent to which to infill is left to the means and methods of the contractor, and is

dependent on the condition of the site. To the extent that a term of the contract determines the

thickness of the infill, it could only be an implied term to carry out the infill in accordance with

generally accepted construction standards and workmanship.

The evidence establishes that Defendant infilled the masonry pockets. The Worksite

Foreman Reports (annexed hereto as Exhibit “G”) establish that a representative of Defendant,

Mr. Mike Richman, attended the site with an Engineer on February 29, 2016, and that the last of

the beam pockets had been located and patched and inspected by March 3, 2016. The pictures

appended to the Domani Inspections reports, annexed to the attached Affirmation of Juan Restrepo,

Esq. as Exhibits “O1, O2, O3, O4, and O5”, show the installation of the Tiebacks and patching

conducted or in progress at various stages.

The reports of Domani Inspections conclude that the Tiebacks were installed in

conformance with the Plans. The DOB, following the required inspections by Plaintiff’s own

Special Inspector, fully signed off on the Demolition Work. The primary participants in the

Demolition Work, who are contractually or statutorily bound to investigate and supervise the work,

have provided what must be considered as the most reliable evidence – based on their direct

participation and knowledge, the conclusion is that the installation of the Tiebacks was carried out

in conformance with the Plans. In addition, The Affidavit of Stephen Lampard, P.E. (of Domani

Inspections, retained by the Plaintiff to inspect the carrying out of the Demolition Work as required

12 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

by the Code) demonstrates that the thickness of the infill: a) does not affect the stability of the

wall, but only the water-tightness of the seal, and b) is left to the discretion of the contractor. The

only suggestion to the contrary is contained in the August 2016 Lane Report, of which deeper

analysis is needed.

Firstly, the August 2016 Lane Report is unsubstantiated. Mr. Lane admitted, in testimony

during deposition, that he (i) failed to carry out any calculations or probes of the wall to determine

the wall’s thickness, or whether the infill of the inner portion of the wall was required to preserve

the stability of the rod, or whether other stabilizing mechanism was required; and (ii) failed to

personally verify the alleged open pocket condition at the time the original complaint was made

by taking independent photographs of the pockets, or obtaining any other evidence in support of

the conclusion that the alleged “open pockets” destabilized the party-wall. Mr. Lane relied entirely

on the Neighbor’s self-serving pictures and representations:

Q: From this picture can we be certain how many wythes this section
of the wall contains?

A: From this photo it’s not certain.

See, Exh. M3, p.64, Ln 19- 22

Q: What was your particular complaint about the tie-backs?

A: The tie-backs were installed but only one wythe of brick masonry
– let’s call it the outside wythe was returned back. So there wasn’t
even two bricks worth of masonry installed.

See, Exh. M3, p. 67, Ln 15- 21

Q: As part of your review, did you measure in your review of the
plans determining what the bearing capacity of the wall was?

A: No.

See Exh. M3, p. 68, Ln. 11- 14

13 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

Q: I’m asking whether or not between July 28th, 2016 and August
9th, 2016 did you inspect the premises in order to corroborate the
conditions that Ms. Arwin had relayed to you in the email?

A: I don’t recall when I inspected it, how far after being notified or
if I took her photos and I said that there might be an issue. Which is
really what this report is about here.

See Exh. M3, p. 86, Ln. 18 to p. 87, Ln. 3

Q: So this report could have been based solely on the pictures and
email that Ms. Arwin had sent you?

A: That’s correct.”

See Exh. M3, p. 87, Ln. 7-10

By Mr. Lane’s own admission, the pictures taken by the Neighbor of the inner brick face

of the attic wall cannot establish the thickness of the wall, and do not conclusively show a lack of

infill according to the terms of the Demolition Contract. Per the supporting affidavit of Antonio

Morales and Stephen Lampard, P.E., and their deposition testimony, the only way to confirm the

thickness of the infill would have been by breaking the pockets themselves. In fact, the subsequent

pictures (all of which were taken by Lane Engineering, or by C&S Construction, on behalf of the

Plaintiff without affording any opportunity to the Defendant’s representatives to be present for

confirmation thereof) show some infill of the masonry pockets. Therefore, the Plaintiff fails to

present any evidence whatsoever which substantiates Mr. Lane’s claims that the pockets were

originally unfilled.

Secondly the conclusions of Mr. Lane are, at times, contradictory: rowing back on his

unsupported conclusion that the lack of infill resulted in destabilization of the masonry wall. Mr.

Lane, in a subsequent report dated November 22, 2016, asserts that “In order to determine whether

Roystar’s actions have affected the structural integrity of the Adjacent Property, each beam

14 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

location must be probed.” (Exh. N2, Lane Engineering Report dated November 22, 2016, P. 1, ¶

3). Per the deposition testimony of Antonio Morales, and the supporting Affidavit Stephen

Lampard, P.E., without damaging the interior sheetrock of the Neighbor’s apartments, this could

only be ascertained from the outside of the Adjacent Property by breaking the wall pockets, and in

the course of doing so, necessarily disturbing and expoliating the evidence (Exh. M2 p. 103, Ln. 8

to 17). Again, the subsequent Lane Reports display a series of pictures that only show the opening

and breaking of the pockets and nothing else. The pictures fail to show the condition of the pockets

prior to their breaking or from within the inner face of the party-wall. Therefore, the subsequent

Lane Reports lack any significant probative value to support Plaintiff’s claim of breach of contract

or defective workmanship.

Crucially, however, the August 2016 Lane Report goes far beyond the limited scope of

analysis set out above. Mr. Lane, who was neither the Special Inspector of record, nor the Engineer

of record for the Demolition Work, and had no direct knowledge of the actual work conducted,

raises concerns as to the workmanship of the entire project, a claim made without seeking peer

review (a method generally available pursuant to the Code – See NYC Building Code 2014, §

1617) or notifying the DOB. He further asserts, again without evidence, that the DOB sign-off on

the Demolition Work was improper. Mr. Lane’s rushed and unfalsifiable conclusions only served

to exacerbate the Neighbor’s heightened sensitivities, who in turn, used her lawyers as a shield to

force the Plaintiff into an unconscionable License Arrangements.

The primary evidence is conclusive and overwhelming, and after over a year of litigation,

Plaintiff has failed to unearth any evidence that persuasively controverts it.The verifiable fact

remains that the Demolition Work was completed, inspected regularly by Plaintiff’s own Special

Inspector and signed-off by the DOB. The contrary evidence is unreliable, uncompelling, and

15 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

serves to manufacture an issue where one does not exist. Defendant was never contractually

obliged to complete the installation of the Tiebacks to Mr. Lane’s personal satisfaction; they

contracted to complete the work in conformance with the Plans. There is therefore no bona fide

issue of material fact as to Defendant breaching any obligation under the Demolition Contract, and

therefore, Defendant is entitled to summary judgment on Plaintiff’s first cause of action.

POINT II – THE EVIDENCE HAD HEREIN CONCLUSIVELY ESTABLISHES A
DEFENSE TO BREACH OF IMPLIED WARRANTY OF WORKMANSHIP

Plaintiff’s legal claim to breach of implied warranty of workmanship is, on the face of the

Complaint, largely derivative –as the Plaintiff conclusively asserts that that same conduct must

either necessarily or alternatively, breach an implied warranty of workmanship. Consequently, the

same evidence Defendant has outlined above for the purposes of establishing that the Demolition

Work was carried out according the Plans also serves to establish that the same work was carried

out according to the degree of skill and care that a reasonably prudent, skilled and qualified

demolition contractor would have.

New York rarely reads implied warranties into service contracts. Donkov Realty, LLC v.

RADJB Realty, Inc., 2008 N.Y. Misc. LEXIS, 10020, 12, 2008 N.Y. Slip. Op. 31967(U), 16 [N.Y.

Sup. Ct., 2008]. It is generally held that there is no reasonable basis in policy or in law for reading

what would amount to a warranty of perfect results into a contract for services created by the

parties. Milau Assocs. Inc. v. North Ave. Dev. Corp., 42 N.Y.2d 482, 489, 398 N.Y.S.2d 882, 887

[1977]. Instead, the warranty is construed as imposing only the degree of care and skill that a

reasonably prudent, skilled and qualified person would have exercised under the circumstances.

Milau, supra, at 488/886.

16 of 23
FILED: NEW YORK COUNTY CLERK 05/16/2020 05:53 PM INDEX NO. 650229/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/16/2020

As stated, the fact of the multiple Domani Inspections reports confirming work in

conformance with plans, the DOB sign off on the work as complete and safe, and the Affidavit of

Stephen Lampard, P.E. demonstrates that the Demolition work and installation of Tiebacks was

carried out in accordance with the degree of care that a reasonably prudent, skilled and qualified

demolition contractor in Defendants’ position. Again, Plaintiff has advanced the conclusions set

out in the Lane Reports in support of the contention that the Demolition Work was carried out in

breach of a warranty of workmanship,

Case Info

Judge

Andrea Masley Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

May 16, 2020

Case Filing Date

January 14, 2019

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Roystar Investment Corp. v. United Industries And Construction Corp.

Preview

Related Topics

Case Info

Parties