Opinion
2011-591
03-19-2019
CORTLAND APTS., LLC, Plaintiff, v. SIMBARI DESIGN ARCHITECTURE, PLLC and Thomas J. Simbari, Defendants.
Matthew D. Gumaer, Esq., Goldberg Segalla, LLP, 5786 Widewaters Parkway, Syracuse, NY 13214-1840, Attorney for Defendants. Daniel J. Pautz, Esq., Bond, Schoeneck & King, PLLC, One Lincoln Center, Syracuse, NY 13202-1355, Attorney for Plaintiff.
Matthew D. Gumaer, Esq., Goldberg Segalla, LLP, 5786 Widewaters Parkway, Syracuse, NY 13214-1840, Attorney for Defendants.
Daniel J. Pautz, Esq., Bond, Schoeneck & King, PLLC, One Lincoln Center, Syracuse, NY 13202-1355, Attorney for Plaintiff.
David H. Guy, J.
PROCEDURAL HISTORY
Plaintiff, Cortland Apartments, LLC commenced this action by complaint dated November 18, 2011. Plaintiff, operated by its principal, Christopher J. Calabro, owns properties located at 15 Pleasant Street and 5 Monroe Heights in Cortland, New York. The complaint alleges Defendant, Simbari Design Architecture, PLLC, operated by Thomas Simbari, entered into an oral contract with Plaintiff in or about September 2010, for Defendant to perform professional architectural services for renovations at 15 Pleasant Street and 5 Monroe Heights (sometimes collectively referred to herein as "the projects"). Plaintiff alleges Defendant failed to properly design, prepare drawings and specifications for, and administer the projects, resulting in the City of Cortland issuing stop work orders and ultimately requiring Plaintiff to undo the construction on the projects. Plaintiff asserts causes of action for professional malpractice, breach of contract, negligence, and negligent misrepresentation. Plaintiff seeks to recover the cost of undoing his construction, and also related costs, including legal fees it paid to its counsel, Bond, Schoeneck & King, PLLC (hereinafter "the Bond firm"), in the amount of $ 16,257.48.
For clarity, Simbari Design Architecture, PLLC and Thomas J. Simbari will collectively be referred to throughout as "Defendant." Plaintiff and Defendant are sometimes referred to herein as "he" or "him" rather than "it."
The parties conducted discovery, and on November 14, 2018, Defendant filed a motion for summary judgment, which is the subject of this Decision and Order. The motion is supported by a memorandum of law, an attorney's affirmation, and exhibits. On January 24, 2019, Plaintiff filed opposition to the motion, supported by an attorney affirmation with exhibits, an affirmation from Thomas Zimmerman, and a memorandum of law. Defendant filed a reply on February 22, 2019, by way of an attorney's affidavit and additional exhibits.
The Court held oral argument on the motion on February 28, 2019. At its conclusion, the Court reserved, providing counsel with the opportunity to submit brief written responses to two cases brought forward by the Court during the oral argument. Attorney Gumaer submitted a letter, and Attorney Pautz declined to do so.
As a threshold matter, in its opposition to the summary judgment motion, Plaintiff asserts Defendant improperly joined the cases by bringing a single summary judgment motion for both this case and a related action, University Avenue, LLC v. Simbari Design Architecture, PLLC and Thomas J. Simbari (Cortland Supreme Index No. 12-320). In each case, the principal of Plaintiff limited liability company is the same individual, Christopher J. Calabro, and the Defendant firm in each case is operated by Thomas Simbari, but the claims of the two cases arise out of different development projects. The Court held a phone conference on this issue on January 25, 2019, at which time Defendant's counsel confirmed he was not trying to join the two cases, but merely to reduce the voluminous paper filings required of separate motions. The parties acknowledge there was substantial "consolidated" discovery on the two cases, particularly with respect to the depositions of the parties, which alone exceed 600 pages.
The pleadings in both these cases are scanned and available electronically in the Cortland County Clerk's Office. All of Defendant's motion papers are entered in both cases. Both parties agree to cooperate in ensuring a clear and complete record on appeal, should an appeal be pursued in either case. Plaintiff's argument about improper joinder is thereby rendered moot.
FACTS
The parties do not dispute certain material facts at issue in this summary judgment motion. Plaintiff and Defendant entered into an oral agreement for Defendant to act as the architect for the Cortland projects in September 2010. There were no written communications regarding the scope of Defendant's anticipated work on the projects; Defendant billed hourly for his services; and Plaintiff and Defendant did not discuss which party would be responsible for obtaining a building permit at either property during the initial site visits in late 2010. (Calabro Deposition at 52-53).
Throughout this Decision and Order, reference is made to exhibits attached to the Affirmation and the Reply Affirmation of Matthew Gumaer, Esq. as "Gumaer Ex. #." Exhibits attached to Plaintiff's Memorandum of Law in opposition to the motion are referred to as "Pautz Ex. #." Reference is also made to the deposition testimony of Defendant, Plaintiff, Susan Bennett, and Francis Casullo, as well as the affidavit of Thomas Zimmerman.
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On December 28, 2010, Defendant emailed Plaintiff identifying two potential variance issues regarding the 15 Pleasant Street project. (Gumaer Affidavit, Ex. F). On January 7, 2011, Defendant emailed Plaintiff indicating he had completed a preliminary drawing of 15 Pleasant Street for Plaintiff to "review it informally with the City of Cortland .... to see if a variance is required." (Gumaer Affidavit, Ex. G).
Plaintiff retained the services of Francis Casullo, Esq., who prepared a site plan review application for the 15 Pleasant Street project, dated March 16, 2011. (Casullo Deposition at 17-18). Attorney Casullo testified that at the time he prepared the application, he would have researched whether a variance was needed for the project, and if he had concluded a variance was necessary, he would have applied for that variance. (Casullo Deposition at 21).
Plaintiff testified that he took Defendant's preliminary drawings to City of Cortland zoning officer Bruce Weber to review the plan to see if a variance would be needed. (Calabro Deposition at 99).
On May 2, 2011, Defendant sealed construction drawings for the 5 Monroe Heights project. (Affidavit of Thomas A. Zimmerman, paragraph 15).
On May 5, 2011, Plaintiff submitted a building permit application for 5 Monroe Heights. (Calabro Deposition at 105). Plaintiff testified that it was his responsibility to apply for a building permit. (Calabro Deposition at 107). On May 10, 2011, William Knickerbocker, the Director of Code Enforcement, emailed Plaintiff to explain that 0officials from the City of Cortland concluded a variance was needed to proceed with the project at 5 Monroe Heights. (Gumaer Affidavit, Ex. L).
On May 11, 2011, Defendant emailed Plaintiff a letter offering support of a variance application for 5 Monroe Heights. (Gumaer Affidavit, Ex. N).
On or about May 11, 2011 and May 12, 2011, Attorney Casullo met with William Knickerbocker to "express frustration" that Plaintiff had previously been told by the City of Cortland that he only needed a building permit to proceed with the project at 5 Monroe Heights and that the City reversed its position as Plaintiff was about to start construction. (Casullo Deposition at 35-36). Plaintiff testified that it was his understanding that Attorney Casullo was going to meet with the City of Cortland to argue on Plaintiff's behalf that no variance was required for the 5 Monroe Heights project. (Calabro Deposition at 132).
Following the second meeting with Attorney Casullo, the City of Cortland reversed its position and indicated it would allow the project at 5 Monroe Heights to proceed without the need for a variance. (Casullo Deposition at 44-45).
On May 16, 2011, the City of Cortland issued a building permit for the 5 Monroe Heights project. (Zimmerman Affidavit, paragraph 15).
On May 19, 2011, Plaintiff submitted a building permit application to demolish the interior of 15 Pleasant Street. (Calabro Deposition at 143-144). On June 2, 2011, Plaintiff submitted a building permit application for reconstruction of 15 Pleasant Street. (Calabro Deposition at 154). Plaintiff testified that he did not know whether it was Defendant's responsibility to submit the building permit application. (Calabro Deposition at 156).
On May 24, 2011, Defendant sealed construction drawings for the 15 Pleasant Street project. (Zimmerman Affidavit, paragraph 16). On June 2, 2011, the City of Cortland issued a building permit for the 15 Pleasant Street project. (Zimmerman Affidavit, paragraph 16).
Though the parties' papers do not specifically establish the date when Plaintiff begin construction on the projects, the work on 5 Monroe Heights began sometime prior to June 7, 2011, and the work on 15 Pleasant Street began sometime before June 16, 2011.
On June 7, 2011, Plaintiff received a stop work order from the City of Cortland for the project at 5 Monroe Heights. (Calabro Deposition at 158). The City of Cortland issued a stop work order for the project at 15 Pleasant Street on June 16, 2011. (Knickerbocker Deposition at 61).
After the issuance of the stop work orders, Plaintiff engaged the services of attorney Kathleen Bennett from the Bond firm. (Bennett Deposition at 7). The Bond firm ran a conflict check and identified the City of Cortland as one of its clients, and Attorney Bennett understood she needed a waiver from the City of Cortland to represent Plaintiff in challenging the stop work orders. (Bennett Deposition at 7-8). The City of Cortland was asked and refused to waive the conflict, which Attorney Bennett learned on June 17, 2011. (Bennett Deposition at 8-9).
Prior to receiving the City of Cortland's response on the waiver request, Attorney Bennett sent an email on June 15, 2011 to Plaintiff and Defendant. (Bennett Deposition at 29-31). In the email, Attorney Bennett indicated she had identified case law supporting a stay of the enforcement of the stop work orders pending an appeal and indicated Plaintiff could "continue construction, but at your own risk in the event you lose the appeal and are denied a variance." (Bennett Deposition at 31-32). Attorney Bennett filed an appeal of the stop work orders with the Cortland Zoning Board of Appeals on June 17, 2011. (Calabro Deposition at 184).
Attorney Casullo prepared a variance application for 5 Monroe Heights dated June 16, 2011. (Casullo Deposition at 70-71).
On June 29, 2011, Plaintiff commenced an Article 78 action against William Knickerbocker and the City of Cortland in this Court. On July 13, 2011, the Court issued a Decision and Order finding that the proposed expansions in the projects required use variances from the Zoning Board of Appeals, and the request to vacate the stop work orders was denied. In the Matter of Cortland Apartments, LLC v. Knickerbocker and the City of Cortland , Sup Ct, Cortland County, July 13, 2011, Sherman, J., Index No. 11-322.
Plaintiff appeared before the Zoning Board of Appeals with variance applications for both projects, and the applications were denied on July 11, 2011. (Calabro Deposition at 222-228).
REQUEST FOR ATTORNEY DISQUALIFICATION
In this motion, Defendant advances two arguments regarding Plaintiff's representation by the Bond firm in 2011. First, Defendant argues Plaintiff should not be entitled to recover from Defendant the legal fees Plaintiff paid to the Bond firm for any legal work completed after the City of Cortland refused to waive the Bond firm's conflict. At oral argument on February 28, 2019, Attorney Pautz indicated Plaintiff waives any claim for legal fees Plaintiff paid to the Bond firm for services after June 17, 2011, when the City of Cortland declined to waive the conflict. Therefore, that issue is moot, and Plaintiff shall not be allowed to recover any legal fees it paid to the Bond firm for services rendered after June 17, 2011.
Second, Defendant argues the Bond firm should be disqualified from continuing to represent Plaintiff in this matter because Defendant intends to call Attorney Bennett, from the Bond firm, as a witness at trial. "A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, except where: 1) testimony relates to an uncontested issue; 2) the testimony relates to the nature and value of legal services rendered in the case; [or] 3) disqualification of the lawyer would work substantial hardship on the client..." Rules of Professional Conduct (22 N.Y.C.R.R. 1200.29) rule 3.7(a). The determination to disqualify an attorney or firm based on the witness-attorney rule lies within the sound discretion of the trial court due to the prevailing policy of a party's right to be represented by counsel of its own choosing. Advanced Visual Concepts, Ltd. , 30 N.Y.S.3d 793, 795 (2d Dept 2016).
For an attorney or firm to be disqualified, the requesting party bears the burden and must "identify specific issues requiring [the attorney's] testimony and to demonstrate the significance of the matters [the attorney] would testify to, the weight of such testimony and the unavailability of other sources of such evidence." Campbell v. McKeon , 75 AD3d 479, 481 (1st Dept 2010).
The Court finds Defendant has not met the burden for disqualification of the Bond firm. Disqualifying the Bond firm would result in substantial hardship for Plaintiff at this late stage in the litigation. Defendant was aware of the conflict since 2011 but only requested disqualification with this motion, after the completion of substantial discovery and on the eve of trial. Plaintiff has sufficiently demonstrated that the information Attorney Bennett would offer is available from other sources, including Attorney Bennett's emails. Defendant had a full and fair opportunity to question Attorney Bennett at her deposition and thereby identify all potential issues upon which she would possibly testify. The parties do not dispute the services and advice Attorney Bennett gave to Plaintiff or the existence of the emails from Attorney Bennett to Plaintiff and/or Defendant.
Therefore, the Court denies Defendant's request to disqualify the Bond firm as Plaintiff's counsel Plaintiff in this matter. While the Court is not ruling on the admissibility of Attorney Bennett's emails or any other related evidence in advance of the trial, were any such proffers to be made at trial, Plaintiff will be precluded from raising an argument that he did not receive the emails or misunderstood their import. In other words, the emails, and any other admissible evidence regarding Attorney Bennett's communications to Plaintiff and Defendant, will speak for themselves.
STANDARD FOR SUMMARY JUDGMENT
"[T]he proponent of a summary judgment motion 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." Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 (1986) (internal citations omitted). The moving party must satisfy its initial burden "by tender of evidentiary proof in admissible form." Zuckerman v. City of New York , 49 NY2d 557, 562 (1980) (internal citations omitted). "This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 NY3d 470, 475 (2013) (internal citations omitted).
If the party moving for summary judgment satisfies its initial burden, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez , supra at 324. "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material issues of fact (or point to the lack thereof)." Vega v. Restani Constr. Corp. , 18 NY3d 499, 505 (2012).
CONTRACT CLAIM
It is well settled that the "elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract, (2) the plaintiff's performance under the contract, (3) the defendant's breach of the contract, and (4) resulting damages." Palmetto Partners, L.P. v. AJW Qualified Partners , LLC, 83 AD3d 804, 806 (2d Dept 2011). For parties to form a binding contract,
... there must be a ‘meeting of the minds,’ such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. In determining whether the parties intended to enter a contract, and the nature of the contract's material terms, we look to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds. Stonehill Capital Mgt. LLC v. Bank of the W. , 28 NY3d 439, 448-449 (2016).
"In order to be generally enforceable, an oral agreement must arise by mutual assent and its terms must be sufficiently certain or definite." Ruppert v. Long Is. R.R. Co. , 281 AD2d 466, 467 (2d Dept 2001). "Omission of contractual terms, like indeterminacy, may render an agreement unenforceable." Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp. , 93 NY2d 584, 590-591 (1999), rearg denied 93 NY2d 1042 (1999). Moreover, "summary judgment is appropriate where a movant demonstrates fatal insufficiency of an oral contract's terms and the opposing party fails to raise a triable issue of fact to the contrary. Ruppert , supra at 467.
The "doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" and "if an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract." 166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp. , 78 NY2d 88, 91 (1991).
The record establishes that Plaintiff and Defendant entered into an oral agreement in late 2010 for Defendant to act as architect for the projects at 5 Monroe Height and 15 Pleasant Street. The parties never reduced the agreement or its terms to writing. The issue now before the Court is whether the agreement between Plaintiff and Defendant established an enforceable contract which includes, as a material term, Defendant advising Plaintiff about and providing drawings in conformity with all relevant laws, codes, and regulations, including zoning laws, so that Plaintiff could obtain valid building permits from the City of Cortland and complete construction on the projects.
Viewing the facts in the light most favorable to Plaintiff, it is clear the parties did not achieve a "meeting of the minds" regarding any contractual obligation for Defendant to bear the responsibility of determining the need for variances for the projects at issue. Without a written contract to examine for what the parties agreed to when Plaintiff retained Defendant as the architect to design the projects, the Court must look to the "objective manifestations of the intent of the parties as gathered by their expressed words and deeds." Stonehill , supra at 449.
Plaintiff's course of conduct during the relevant period supports the conclusion that, as a matter of law, the scope of the parties' binding contract did not include Defendant investigating the need for or applying for variances or building permits for the projects, or, stated another way, Defendant guaranteeing his plans would comply with the building codes as ultimately interpreted by the City and the Supreme Court. Plaintiff testified that he did not expressly tell Defendant that Defendant would be responsible for obtaining a building permit for either property. (Calabro Deposition at 52-53). Plaintiff testified that he did not know whether it was Defendant's responsibility to submit the building permit applications for the projects, and Plaintiff also indicated it was his responsibility to apply for building permit applications. (Calabro Deposition at 107, 156).
Plaintiff retained Attorney Casullo to prepare a site plan review application for 15 Pleasant Street, and Attorney Casullo testified that he would have examined the need for any variance for the project at the time of the application. (Casullo Deposition at 17-18). He further testified that had he determined 15 Pleasant Street required a variance, he would have applied for one. (Casullo Deposition at 21). Attorney Casullo ultimately prepared a variance application for 5 Monroe Heights dated June 16, 2011. (Casullo Deposition at 70-71).
In conformity with what has been described as Plaintiff's long-standing practice of informally reviewing plans with the City of Cortland, Plaintiff took Defendant's preliminary drawings to zoning officer Bruce Weber to look over the plans and indicate whether the City of Cortland would require any variances. (Calabro Deposition at 99). Similarly, when the City of Cortland indicated it would require a variance for 5 Monroe Heights, Defendant prepared a letter in support of a variance application, but Plaintiff instead chose to send Attorney Casullo to meet with the City of Cortland to "express frustration" and convince the City to change its position on the variance issue. (Casullo Deposition at 35-36). Building permits were in fact issued for both projects based on Defendant's plans.
At every step of the process, Plaintiff assumed the mantle, or relied on Attorney Casullo, to research the need for a variance or building permit and actually apply for building permits. The parties' words and deeds cannot, as a matter of law, support the conclusion that Plaintiff and Defendant had a "meeting of the minds" that Defendant would be responsible for any needed variances or a guarantor there would be no such need. Contra Sch. Bd. V Pierce Goodwin Alexander & Linville , 137 So.3d 1059 (Fla. 4th DCA 2014) (the written contract between the property owner and architect included indemnification by the architect against certain claims).
Based on the foregoing, the Court grants summary judgment in favor of Defendant on Plaintiff's breach of contract claim. In dismissing the contract claim, the Court does not need to reach the parties' respective arguments regarding whether the alleged contractual breach proximately caused Plaintiff's injuries.
PROFESSIONAL MALPRACTICE CLAIM
"A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury." Kung v. Zheng , 73 AD3d 862, 863 (2d Dept 2010). It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice, except where the alleged act of malpractice falls within the competence of a lay jury to evaluate. 530 East 89 Corp. v. Unger , 43 NY2d 776, 777 (1977) (internal citations omitted).
In Unger , the plaintiff-builder alleged the defendants-architects committed malpractice by his failure to respond in a timely manner to objections raised by the New York City Department of Buildings; there was no allegation that the plans submitted by the defendant were defective. Id. The Court of Appeals held that "[w]hether the allegedly inordinate delays of defendants in complying with objections of the building department constituted architectural malpractice is not within the competence of an untutored layman to evaluate", but that the trial testimony of the plaintiff's expert was insufficient to support a claim for professional malpractice. Id.
Defendant argues that he abided by the professional standard of care in delivering the sealed construction drawings to Plaintiff, and any damages Plaintiff suffered was caused by the City of Cortland changing its long-standing interpretation of the applicable codes for the types of properties and improvements at issue. Defendant submits that there cannot be a finding of malpractice, as a matter of law, when an architect creates construction drawings that fail to anticipate the governing authority's abandonment of its long-held interpretation of its own zoning ordinance, including the City of Cortland's multiple reversals between positions on the need for variances on 5 Monroe Heights. Defendant also argues Plaintiff assumed the risk of continuing with the projects without applying for a variance, despite his notice that the City of Cortland was not settled in its interpretation of the applicable codes.
In opposition, Plaintiff argues Defendant had a professional duty to research applicable zoning and building codes and determine whether there were any impediments to proposed improvement or development on the projects. Plaintiff also submits that Defendant, as a design professional, is not excused or absolved from his obligation to exercise due care in performing his professional duties because a governmental authority with jurisdiction over the projects makes a mistake in interpreting the applicable code. Plaintiff argues that review of the applicable codes is a non-delegable professional duty of the architect in sealing completed design drawings.
Based on the undisputed facts, it is clear the City of Cortland historically interpreted its zoning code to not require variances for projects like the ones at issue in this case. That historic interpretation went into flux as these projects developed. The City indicated it would require a variance for the proposed work at 5 Monroe Heights, then reversed that position. Defendant submitted sealed drawings for the projects at both properties in May 2011; the City issued building permits for both projects. The City then issued stop work orders for the projects, leading to Plaintiff's appeal and Article 78 proceeding that resulted in judicial interpretation of the code. The Zoning Board of Appeals eventually denied the requests for variances on both projects, requiring Plaintiff to undo construction he had already completed.
Plaintiff submitted the affidavit of Thomas A. Zimmerman, a licensed architect with more than forty years of experience in the field. Zimmerman opined that by affixing the seal to the construction drawings for both projects, Defendant represented that the drawings confirmed to "all applicable codes." According to Zimmerman, Defendant, "in the exercise of due care in performing their professional duties, should have discovered, recognized, and advised their clients [on the code issue] well in advance of their preparation and sealing of construction drawings." (Zimmerman Affidavit, paragraph 31).
Zimmerman stops short of indicating whether the professional standard of care required an architect in Defendant's position to certify his drawings confirmed with applicable codes as written or applicable codes as interpreted by the local authorities. Neither party has addressed this open question in his respective papers. The Court finds that it is not a question that falls within the competence of a lay factfinder to evaluate or for the Court to ultimately decide on this summary judgment motion. See Unger , supra at 777; Mary Imogene Bassett Hosp. v. Cannon Design, Inc. , 127 AD3d 1377 (3d Dept 2015) (bench trial on issue of common law architectural standard of professional care, with expert testimony from both plaintiff and defendant); Town of Kinderhook v. Vona , 136 AD3d 1202 (3d Dept 2016) (summary judgment in accounting malpractice case not granted where plaintiff and defendant both submitted expert affidavits).
The Court finds Defendant met his initial burden for summary judgment on the professional malpractice claim, but granting all reasonable inferences in Plaintiff's favor, Plaintiff has submitted sufficient proof in admissible form to establish the existence of material fact issues, requiring the denial of summary judgment.
Plaintiff's negligence and negligent misrepresentation claims rely on the same set of facts as the contract and professional malpractice claims. Both claims are dismissed as duplicative of the other claims. See Garten v. Shearman & Sterling LLP , 52 AD3d 207, 208 (1st Dept 2008).
Based on the foregoing it is,
ORDERED , that Defendant's motion for summary judgment on Plaintiff's breach of contract, negligence, and negligent misrepresentation claims is GRANTED; and it is further
ORDERED , that Defendant's motion for summary judgment on Plaintiff's professional malpractice claim is DENIED; and it is further
ORDERED , that Defendant's request for disqualification of Bond, Schoeneck & King, PLLC from representing Plaintiff in this matter is denied.
This Decision constitutes the Order of the Court.