Mohawk Valley Health System, Plaintiff/Counterclaim Defendant, v. BRIEN GERE ENGINEERS INC (2026)

BACKGROUND

This third-party action arises out of the development of the Mohawk Valley Health System's ("MVHS") Integrated Health Campus and, specifically, the electric duct-bank installation beneath Columbia Street executed by National Grid. MVHS sues Ramboll alleging defective civil-engineering design, professional negligence, and breach of contract (NYSCEF No. 66). Ramboll, in turn, brings third-party claims against Hammes, the project manager retained by MVHS, alleging that Hammes's negligent coordination and project-administration failures contributed to the duct-bank condition and to Ramboll's resulting litigation exposure.

Ramboll alleges in the Third-Party Complaint, and supports through the Whittaker Affirmation, that Hammes exercised significant operational control over project communications, document dissemination, access to National Grid, and the channels through which design information was to be exchanged (NYSCEF Nos. 65, 86, 88, 89, 92, 95, 96). Ramboll further alleges that Hammes failed to coordinate the delegated-design review of National Grid's duct-bank design, allowed National Grid to install the duct-bank before issuance of the 100% final construction documents, and failed to identify or report sequencing deviations (NYSCEF Nos. 86, 90, 91).

Hammes moves to dismiss the Third-Party Complaint under CPLR §§ 3211(a)(1), (5), and (7), arguing that (1) Ramboll filed its negligence claim outside the three-year statute of limitations; (2) Hammes owed no duty to Ramboll because there is no privity of contract; (3) the claims are barred by the economic-loss doctrine; (4) common-law indemnification is unavailable because Ramboll faces only direct liability for its own conduct; and (5) the contribution claim is barred because MVHS alleges only economic loss (NYSCEF No. 65).

For the reasons below, the Court denies Hammes's motion in its entirety.

LEGAL STANDARDS

On a motion under CPLR § 3211(a)(7), the Court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87—88 [1994]). Dismissal under CPLR § 3211(a)(1) is proper only "where the documentary evidence utterly refutes the plaintiff's allegations, and conclusively establishing a defense as a matter of law." (Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002]). Under CPLR § 3211(a)(5), the movant bears the "initial burden of establishing, prima facie, that the time in which to sue ha(d) expired and thus w (ere) requested to establish, inter alia, when the cause(s) of action accrued." (Pape Ventures v American Sports Media, 207 AD3d 1135, 1136 [4th Dept 2022]). These standards guide the analysis below.

LEGAL ANALYSIS

Hammes Has Not Established That the Negligence Claim Is Untimely

At the pleading stage, a statute-of-limitations defense is properly granted only where the documentary evidence establishes, as a matter of law, that the time to sue has expired. CPLR § 3211(a)(5) places the initial burden on the movant. Here, Hammes has not demonstrated when its own project-management obligations concluded, nor has it supplied documentary evidence conclusively fixing the accrual date (NYSCEF No. 65). By contrast, Ramboll alleges, and the Whittaker Affirmation supports, that its injury consists of litigation exposure and defense costs incurred upon MVHS's commencement of this action (NYSCEF Nos. 86, 96). Accepting these allegations as true, Hammes has not met its burden, and dismissal on statute-of-limitations grounds is unwarranted.

Hammes relies on cases involving claims by property owners against contractors and engineers for defective physical work, which accrue upon substantial completion. But Ramboll is not the property owner, did not build the duct-bank, and does not allege damage to property it owns. The injury Ramboll alleges is the litigation exposure and defense costs that accrued when MVHS filed suit in January 2026, not in March or April 2020 when National Grid installed the duct-bank (NYSCEF No. 66).

The Fourth Department has held that where the movant fails to establish the accrual date as a matter of law, the statute-of-limitations motion must be denied. See Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355 [4th Dept 2011] (motion must be denied where defendant "failed to meet its initial burden"). Similarly, Webster Golf Club v Monroe County Water Auth., 219 AD3d 1136 [4th Dept 2023], cited by Hammes, turned on the accrual of an owner's property-damage claim, not a third-party claim like this one.

In addition and in the alternative, Hammes did not supply any evidence establishing when its own project-management duties ended. Ramboll alleges those duties continued throughout sequencing, coordination, and submittal review (NYSCEF Nos. 86, 96). On the pleadings, the Court cannot determine accrual as a matter of law. CPLR § 3211(a)(5) denial is required.

Ramboll Has Adequately Pleaded a Duty of Care

Hammes's privity argument is unavailing. New York recognizes a duty where the relationship is "so close as to approach that of privity" (Ossining Union Free Sch. Dist. v Anderson, 73 NY2d 417, 425 [1989]). Here, Ramboll alleges that Hammes controlled the channels through which Ramboll communicated with National Grid (NYSCEF Nos. 86 89, 92, 95); dictated the project's document-control systems, access protocols, meeting attendance, and dissemination procedures; undertook an express contractual obligation to "coordinate communications among the Owner, Architect, Contractor, and other design consultants" and to "monitor submittals and RFIs" (PMA § 2.1.1, NYSCEF No. 94); and that Ramboll was foreseeably dependent on Hammes's careful performance of these coordination functions (NYSCEF No. 86). Taken together, these allegations, if true, describe a direct and operational relationship between the two entities that is sufficiently close to create a duty of care under New York law.

These specific allegations are stronger than those rejected in McNar Industries v Feibes & Schmitt, 245 AD2d 993, 994 [3rd Dept. 1997], where the architect's services "were not performed for plaintiff's benefit." Here, the project-management functions alleged were directed at facilitating the work of all design consultants, including Ramboll.

Moreover, James McKinney & Son v Lake Placid 1980 Olympic Games, 92 AD2d 991 [3d Dept 1983], recognized negligence claims against a project manager where its coordination duties foreseeably affected subcontractors. The same principle applies here. Hammes's Project Management Agreement ("PMA") limitations do not "utterly refute" the pleaded duty. The PMA confirms Hammes assumed coordination, monitoring, and communication functions affecting Ramboll's performance (NYSCEF No. 94).

Whether Ramboll's allegations ultimately satisfy one of the limited exceptions recognized in Espinal v Melville Snow Contrs., 98 NY2d 136 [2002], including whether Hammes's conduct may have created or exacerbated the risk associated with allowing an unreviewed duct-bank design to proceed, cannot be determined at this pre-answer stage. Dismissal is therefore premature. At this pre-answer stage, Ramboll's allegations, if true, sufficiently plead a duty of care as a privity-like relationship described in Ossining; whether such a duty existed in fact cannot be determined on this motion. Further, since Ramboll has adequately pleaded a duty of care independent of contract, the economic-loss doctrine cannot be applied at this pre-answer stage to bar its negligence claim. These determinations resolve Hammes's threshold challenges to the negligence claim at this stage.

Ramboll Has Sufficiently Pleaded Breach and Causation

Accepting the allegations in the Third-Party Complaint as true, as the Court must under CPLR § 3211 (a)(7), Ramboll asserts a detailed chain of coordination failures attributable to Hammes, including the monitoring of sequencing, submittals, and RFIs; the absence of any delegated-design review of National Grid's duct-bank work; and Hammes's control, together with Gilbane, over the dissemination of Ramboll's drawings. The Whittaker Affirmation, which the Court may consider in assessing the sufficiency of the pleadings, provides specific factual context supporting these claims. These allegations, if proven, could establish that Hammes's conduct contributed to the installation of the duct-bank at insufficient cover (NYSCEF Nos. 86, 88, 90, 91, 92, 95, 96).

Under Leon v Martinez, 84 NY2d 83, 87—88 [1994], and Rovello v Orofino Realty Co., 40 NY2d 633, 635—636 [1976], these allegations are more than sufficient to survive dismissal. They are not conclusory; rather, they are highly particularized and supported by the Whittaker Affirmation, which this Court may consider in opposition to a CPLR § 3211(a)(7) motion (NYSCEF Nos. 86, 96). Dismissal is therefore inappropriate. Accordingly, Ramboll has adequately pleaded breach and causation for purposes of CPLR § 3211.

Common-Law Indemnification Is Properly Pleaded

A common-law indemnification claim does not accrue until the party seeking indemnity has made payment. (McDermott v City of New York, 50 NY2d 211, 216 [1980]; Ralston Purina Co. v Arthur G. McKee, 174 AD2d 1060 [4th Dept 1991]). Ramboll has made no payment; therefore, the claim is timely.

Hammes's argument that Ramboll cannot be vicariously liable misconstrues the pleadings. Ramboll alleges it supplied correct elevation data, and that its exposure stems from Hammes's negligent coordination, the classic scenario for common-law indemnity (NYSCEF Nos. 86, 90, 91, 96). The Fourth Department in Garcia v Black Sea Props., 227 AD3d 1491 [4th Dept 2024], reaffirmed that common-law indemnity lies where the proposed indemnitor's negligence contributed to the loss.

Hammes asks this Court to hold, as a matter of law at the pleading stage, that the only possible basis for Ramboll's liability is Ramboll's own negligence (NYSCEF Nos. 62, 64, 64, 101). That is contrary to CPLR § 3211 jurisprudence and to Garcia and McDermott. Ramboll has sufficiently pleaded a scenario where it could be held answerable for damages primarily caused by Hammes (NYSCEF Nos. 65, 86, 96).

Hammes's argument that Ramboll can only face liability for its own conduct ignores the posture of a CPLR § 3211 motion. At this stage, the Court does not resolve factual disputes or make findings as to whose conduct ultimately caused the duct-bank condition. Ramboll alleges that any liability it may face could be vicarious or derivative. Those allegations must be accepted as true, and when so viewed, they articulate a viable claim for common-law indemnification. Whether Ramboll can ultimately establish entitlement to indemnity is a question for summary judgment or trial, not a basis for dismissal at the pleading stage. The Court therefore declines to dismiss the common-law indemnification claim at this stage.

The Contribution Claim Is Properly Pleaded

Under CPLR § 1401, contribution is available where two parties' tortious conduct contributes to the same injury. The Court of Appeals in Board of Educ. of Hudson City Sch. Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21 [1987], held only that contribution is unavailable where the damages arise solely from breach of contract and no tort duty exists. That is not this case.

Contribution remains available where two or more parties' tortious conduct contributes to the same injury, so long as a predicate tort claim remains in the case. MVHS asserts professional negligence against Ramboll; Ramboll, in turn, alleges independent tortious acts by Hammes contributing to the duct-bank condition. At this juncture, the Court cannot say as a matter of law that no tort duty exists or that Hammes's conduct could not have contributed to the alleged injury. When the pleadings allege concurrent tortious conduct, as they do here, dismissal of the contribution claim is premature.

MVHS's underlying claims against Ramboll include professional negligence (NYSCEF No. 66). Ramboll, in turn, alleges independent tortious conduct by Hammes (NYSCEF No. 65, 86, 96). As the Second Department explained in Sound Refrigeration & A.C., Inc. v All City Testing & Balancing Corp., "although it is possible that [a defendant] ultimately may not be held liable in tort, at present a tort claim remains pending, and thus, 'the necessary predicate tort liability for a contribution action remains in the case.' " 84 AD3d 1349, 1350—51 [2d Dept 2011]. Accordingly, because tort claims remain in this action, Sargent Webster does not bar Ramboll's contribution claim.

Ramboll alleges concurrent tortious conduct by Hammes contributing to the same duct-bank condition, and thus contribution is properly pleaded (NYSCEF Nos. 65, 86, 88, 89, 90, 91, 92, 95, 96).

After due deliberation and consideration of the motion, the papers submitted, and the applicable law, and for the reasons set forth in the Court's findings above, it is hereby

ORDERED, that the motion of Third-Party Defendant Hammes Company Healthcare, LLC to dismiss the Third-Party Complaint is denied in its entirety; and it is further

ORDERED, that Hammes Company Healthcare, LLC shall serve and file its Answer to the Third-Party Complaint within twenty (20) days after service of this Order with Notice of Entry.

ENTER,

Dated: October 23, 2026

Utica, New York

Hon. Elizabeth Snyder Fortino, J.S.C.

Elizabeth Snyder Fortino, J.