FAMOUS FORMAGGIO PIZZERIA LLC v. PROCIDA CONSTRUCTION CORP

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Supreme Court, Bronx County, New York.

FAMOUS FORMAGGIO PIZZERIA, LLC., Plaintiff, v. PROCIDA CONSTRUCTION CORP., et als., Defendants.

21729/2015E

Decided: February 28, 2018

Counsel for Plaintiff: Glassberg & Associates, LLC., (Steven Glassberg, Esq.) Counsel for Procida: Ehrlich Gayner, LLP., (Charles J. Gayner, Esq.)

Upon the foregoing papers, the plaintiff Famous Formaggio Pizzeria, LLC. (“Plaintiff”) moves for an order (1) granting it summary judgment pursuant to CPLR 3212; (2) awarding damages in an amount to be determined; and (3) such other and further relief as this Court deems just and proper. The defendant Procida Construction Corp. (“Procida”) opposes the motion and cross-moves for an order granting it summary judgment, and such other and further relief as this Court deems just and proper. Plaintiff opposes the cross-motion.

I. Background

This matter arises out of a construction project located at 322 West 231st Street in the Bronx, New York (hereinafter referred to as “322”). Plaintiff is the proprietor of a restaurant located at 300–318 West 231st Street (“318”) a building that neighbors 322. At relevant times, Procida was allegedly the general contractor for the construction work at 322. Plaintiff alleges that during the course of the construction work, Procida or one of its subcontractors undertook excavation and pile driving activities that caused damage to 318. Plaintiff now moves for summary judgment on the issue of Procida's liability.

Plaintiff submits a report and affidavit from professional engineer Roberta Lynne Levine (“Levine”) who opines, among other things, that the damage to 318 was entirely caused by Procida's pile driving work. She asserts that required monitoring devices called “prisms” were not installed onto 318 until after the work had commenced and the damage inflicted. Levine notes that Procida admitted to damaging the neighboring property, and it added bracing to support 318 and undertook other remediation measures afterwards. Following a review of the documentation associated with this project, including a set of drawings describing remedial work and permits obtained from the New York City Department of Buildings, she concludes that the pile driving inflicted vibrations to 318 which caused cracking in the building's wall and foundation. She further notes that there was no preconstruction survey performed, and thus it is logical to conclude that all damage to 318 is attributable to the pile driving.

Plaintiff argues that, in light of the foregoing, Procida violated New York City Building Code (Admin. Code of City of New York, titl. 28, ch. 7) BC § 3309.4, which imposes absolute liability on parties whose excavation work damages adjoining premises, and places the burden of protecting the property on those undertaking that work. Plaintiff asserts that the evidence establishes that Procida was the party who “caused” the injurious work to be done, and it thereafter hired contractors to repair the damage inflicted upon 318. Plaintiff thus contends that there are no issues of material fact and it is entitled to summary judgment on the issue of Procida's liability.

In opposition to the motion and in support of its cross-motion, Procida initially argues that BC§ 3309.4 only applies to a person “who causes an excavation to be made.” This section of the Code does not apply to Procida for two reasons: first, Plaintiff claims that its damages were caused by pile driving, not “excavation.” The statute does not provide for recovery in the event of “pile driving,” which is specifically referenced in the code § 3309.6 as a part of subsurface activity. Procida submits an affidavit from senior project manager Richard Rendos (“Rendos”), who explains that pile driving and excavation are separate and distinct activities, and Procida was not performing any excavation work at relevant times.

Second, Procida alleges that the Code does not apply to it because it was not the “person” who caused the work to be performed, as the culpable parties actually appear in Plaintiff's own expert report. That report does not suggest that Procida designed the methods or processes of the pile driving work. A contractor called Intercoastal Foundations and Shoring (“Intercoastal”) actually conducted the pile driving, another contractor called Yoles Engineering monitored and approved it, a contractor called Langan Engineering performed the soil borings, and a contractor called Perkins Eastman Architects provided a plan for the pile driving installation. Rendos asserts that Procida (Rendos claims that the entity actually involved with this project was “Procida Construction Corp. of NY”) acted as a construction manager, and not a general contractor. Prior to Procida's involvement, the site owner International Leadership Charter School (“International”) retained a company to perform pre-construction surveys and install crack monitors to adjacent properties. Rendos claims that Procida never performed work outside of “coordinating” during the pile driving work. Rendos asserts that the alleged “admissions” annexed to Plaintiff's papers are not actually admissions and does not prove that Procida caused any of the damage to the premises. As an alternative argument, Procida alleges summary judgment is premature since there has been no discovery conducted with respect to the prior condition of the property or with respect to damages.

In support of its cross-motion for summary judgment, Procida asserts that Plaintiff has “sued the wrong Procida entity.” It alleges that “Procida Construction Corp. of NY” (“Procida NY”) was the actual construction manager for this project, not “Procida Construction Corp.,” the entity sued. Rendos explains that “Procida Construction Corp.,” and Procida NY are separate and distinct, with different registrations with the Secretary of State. Procida claims that it is too late for Plaintiff to amend the caption to reflect the true party defendant. Procida—the sued entity—does not appear on the construction documents and had nothing to do with this project. Mario Procida, CEO of this defendant, confirms in an affidavit that Procida was not a party to these transactions and is separate and distinct from Procida NY.

In opposition to the cross-motion and in further support of its motion for summary judgment, Plaintiff argues that it never claimed that Procida itself performed the pile driving. Plaintiff's claim is that Procida was the general contractor on the project, and is therefore liable and responsible for the actions of the subcontractor who performed the pile driving and damaged Plaintiff's building. Plaintiff also notes that the sued “Procida” entity—Procida Construction Corp.—in fact appears on documents such as the Work Permit Application from the New York City Department of Buildings for the 322 project as the general contractor and construction superintendent. “Procida Construction Corp. of NY” is not found on that document. As the general contractor, Procida was responsible for maintaining the safety of the job site and the adjoining properties. It is therefore disingenuous at best for defendant to claim that Rendos' employer Procida Construction Corp. of NY was the general contractor. Furthermore, most of the remediation documentation lists Procida as the client. Plaintiff also refutes Defendant's characterization of the various documents that were annexed to its initial moving papers. Plaintiff does not directly address Procida's contention that the BC § 3309.4 does not apply to it, or that the statute only applies to excavation and not pile driving.

II. Standard of Review

To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 A.D.3d 490, 955 N.Y.S.2d 589 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 N.Y.2d 738, 602 N.Y.S.2d 324, 621 N.E.2d 691 [1993] ).

III. Applicable Law and Analysis

New York City Building Code (Admin. Code of City of New York, titl. 28, ch. 7) § BC 3309.4 (formerly New York City Administrative Code § 27–1013(b)(1) (repealed eff. July 1, 2008) (hereinafter “BC § 3309.4”) provides that:

“[w]henever 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. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made.”

This statute imposes strict or absolute liability upon a “ ‘person who causes' an excavation to be made” (Chan v. Begum, 153 A.D.3d 1223, 1225, 61 N.Y.S.3d 128 [2nd Dept. 2017], citing American Sec. Ins. Co. v. Church of God of St. Albans, 131 A.D.3d 903, 905, 16 N.Y.S.3d 247 [2nd Dept. 2015]; 87 Chambers, LLC. v. 77 Reade, LLC., 122 A.D.3d 540, 541, 998 N.Y.S.2d 15 [1st Dept. 2014]; see also Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481, 489, 941 N.Y.S.2d 20, 964 N.E.2d 391 [2012] ). In this case, Plaintiff demonstrated that Procida obtained permits for this construction work either as either the project's construction manager or general contractor. Procida also prepared an incident report in December 2013 stating the pile driving operations were halted after an enlarged crack was found in the foundation of the neighboring property. Procida then coordinated with other contractors to implement a stability plan and take other remedial measures. The foregoing demonstrates that Procida may be held liable under the applicable Code provision as a general contractor who made the decision to perform the pile driving, thus it is a “person who cause[d]” the soil or foundation work (see American Sec. Ins. Co. v. Church of God of St. Albans, 131 A.D.3d at 905, 16 N.Y.S.3d 247; see also Fagan v. Pathe Industries, 274 A.D.703, 86 N.Y.S.2d 859 [1st Dept. 1949][former Administrative Code provision applicable to a project's general contractor] ).

Procida argues that the statute is inapplicable because the allegedly injurious work here only involved pile driving, not excavation. However, BC § 3309.4 removes the word “excavation” from the prior statute and broadens the covered activity to “soil and foundation work.” (compare Administrative Code § 27–1013[b][1] ). As noted in Procida's expert witness affidavit, pile driving is the act of driving piles (poles) into soil to provide foundation support for buildings or other structures” (see Affidavit at Par. 9). Procida points to no case law suggesting that the BC § 3309.4 should be narrowly construed to apply only in the event of “excavation,” and its expert does not claim that pile driving is not “foundation work.” However, in order to demonstrate a prima facie violation of the statute, a movant must show that it granted the defendant/person who caused the excavation the requisite license to enter the adjoining property and inspect it (see O'Hara v. New School, 118 A.D.3d 480, 481, 987 N.Y.S.2d 386 [1st Dept. 2014] ). In the absence of such a license, a movant must show what if any actions it took “to satisfy [its] duty under section 3309.4 to protect and preserve [its] property” (Chan v. Begum, 153 A.D.3d at 1225, 61 N.Y.S.3d 128, citing BC § 3309.4). In this case, Plaintiff's moving papers fail to allege or establish that it granted Procida the requisite license, and fail to state what actions it took to protect its own property during this construction project. Plaintiff thus failed to establish prima facie that Procida violated BC § 3309.4. While this issue was not specifically addressed in opposition papers, it was an aspect of Plaintiff's initial summary judgment burden (see O'Hara v. New School, 118 A.D.3d at 481, 987 N.Y.S.2d 386), and a legal issue that appears on the face of the record that could not have been avoided by Plaintiff if brought to its attention at the proper juncture (see Chateau D'lf Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1st Dept. 1996], lv. den., 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996]; 26th LS Series Ltd v. Brooks, 156 A.D.3d 427, 461, 66 N.Y.S.3d 460 [1st Dept. 2017] ). Even assuming arguendo that Plaintiff carried its initial burden, Procida has sufficiently raised issues of fact as to whether it was in fact the entity that “caused” the soil or foundation work at issue. Rendos claims that no “Procida” entity was involved in pile driving or excavation. He also asserts that a prior construction manager made the decision to use driven piles (as opposed to drilled piles) for this project. Rendos states what when Procida was contracted as the project construction manager, all plans and specifications relating to the pile installation had already been prepared by design teams of other contractors Perkins Eastman and Langan Engineering. He also claims that another trade contractor, Intercoastal, was independently responsible for all procedures and protocols relating to the installation work. Yet another contractor, Macia Consulting Enterprises, was directly retained by site owner International, and was directly responsible for supervising the pile driving. Rendos further notes that Plaintiff's own expert report referenced these other non-party entities who handled the pile driving exclusive of any direction from a “Procida” entity. The foregoing raises issues of fact as to whether or not Procida is liable under the applicable statute as the “person who caused” the soil or foundation work—i.e., the entity that made the decision to perform that work (see American Sec. Ins. Co. v. Church of God of St. Albans, 131 A.D.3d at 905, 16 N.Y.S.3d 247; Coronet Properties Co. v. L/M Second Ave., Inc., 166 A.D.2d 242, 243, 560 N.Y.S.2d 444 [1st Dept. 1990] ). Plaintiff is therefore not entitled to summary judgment on the issue of Procida's liability. The fact that Procida may have arranged for post-incident repairs to be made does not conclusively resolve the issue. While Rendos was allegedly employed by an entity called “Procida Construction Corp. of NY,” and not “Procida,” Plaintiff submits no evidence indicating that he lacked personal knowledge of the facts and circumstances surrounding Procida's involvement in this project.

Plaintiff's motion does not directly address its entitlement to summary judgment on its common law negligence claim against Procida. In any event, Plaintiff failed to demonstrate prima facie that Procida, who did not actually perform the pile driving work, is liable to Plaintiff under common law negligence principles (compare87 Chambers, LLC v. 77 Reade, LLC., 122 A.D.3d 540, 998 N.Y.S.2d 15 [1st Dept. 2014] ). Plaintiff also failed to demonstrate its freedom from any comparative fault, which was its burden on the motion for summary judgment (see Rodriguez v. City of New York, 142 A.D.3d 778, 778–79, 37 N.Y.S.3d 93 [1st Dept. 2016]; see also Verizon New York Inc. v. New York State Elec. & Gas Corp., 151 A.D.3d 614, 616, 58 N.Y.S.3d 322 [1st Dept. 2017] ).

Procida's cross-motion for summary judgment is also denied. Procida's allegation that it is not the proper entity is belied by the New York City initial work permit application listing “Procida Construction Corp.” as the permit applicant and general contractor. This permit and other post-incident documentation indicates that Procida may have used these two entities interchangeably throughout the course of this construction project.

IV. Conclusion

Accordingly, it is hereby

ORDERED, that Plaintiff's motion for summary judgment is denied, and it is further,

ORDERED, that Procida's cross-motion for summary judgment is denied.

This constitutes the Decision and Order of this Court.

Mary Ann Brigantti, J.

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