470 OWNERS CORP v. RICHARD HEIMER (1999)

In an action to recover damages for engineering malpractice, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered December 5, 1997, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, and (2) an order of the same court entered February 10, 1998, which denied its motion, denominated as one for renewal, but which was in actuality a motion for reargument.

ORDERED that the appeal from the order entered February 10, 1998, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order entered December 5, 1997, is affirmed insofar as appealed from;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

The plaintiff, 470 Owners Corp., commenced this action against the defendants after certain terraces at the plaintiff's apartment complex, which the defendants Richard L. Heimer, P.E., P.C. and Richard L. Heimer (hereinafter collectively referred to as Heimer) had inspected and for which Heimer had provided repair specifications, began to crumble and deteriorate due to ice and water damage.   Specifically, the plaintiff alleged that Heimer was negligent in approving specifications for the repair of the terraces, without including steps to prevent the pooling of water in railing postholes, which caused the terraces to deteriorate and crumble after they were repaired.

 Heimer moved, inter alia, for summary judgment on the ground that the contract only required that Heimer inspect “accessible and observable areas”, while the cause of the problem was that the railings were set in metal sleeves which were not open and obvious upon inspection.   The Supreme Court granted Heimer summary judgment, and we affirm.

Heimer met the initial burden of demonstrating entitlement to judgment as a matter of law by establishing, according to Heimer's own expert opinion, that the initial inspections of accessible and observable areas would not have alerted an engineer to the problem which caused the terraces to deteriorate and crumble after they were repaired (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Neuman v. Greenstein, 99 A.D.2d 1018, 473 N.Y.S.2d 806).   This showing is corroborated by the plaintiff's president, Diane Clark, who testified at her examination before trial that the water pooling inside the railing postholes and the rusted metal sleeves was not readily observable during that inspection (see, Kohl v. Green, 235 A.D.2d 671, 651 N.Y.S.2d 744).   In opposition, the plaintiff failed to raise a genuine issue of material fact.   No affidavit from an expert was submitted to indicate that Heimer should have been aware of the problem from observable conditions (see, 530 E. 89 Corp. v. Unger, 43 N.Y.2d 776, 777, 402 N.Y.S.2d 382, 373 N.E.2d 276).

 The plaintiff's motion, denominated a motion for leave to renew, was based on an affidavit by the engineer who had been hired to replace Heimer, and who was listed in the plaintiff's response to Heimer's demand for expert information.   Therefore, this expert's opinion was known to the plaintiff and available at the time of the original motion.   Accordingly, the plaintiff's motion was, in effect, for reargument, the denial of which is not appealable (see, Matter of Brooklyn Welding Corp. v. Chin, 236 A.D.2d 392, 653 N.Y.S.2d 631;  Ramsco Inc. v. Riozzi, 210 A.D.2d 592, 619 N.Y.S.2d 809;  Mayer v. McBrunigan Constr. Corp., 123 A.D.2d 606, 506 N.Y.S.2d 770).

MEMORANDUM BY THE COURT.