Opinion
No. CA2011–002187.
03-05-2015
MKCAC, LLC, Michael Caccavale and Karin Caccavale, Plaintiffs, v. COUNTY OF ONEIDA, Tony Baker a/k/a Anthony Baker, Shumaker Consulting, Engineering and Land Surveying, PC, and Hogan Engineering, PC, Defendants.
Michelle E. Broadbent, Esq., Kowalczyk, Deery & Broadbent, LLP, Utica, on behalf of the plaintiffs. Mark Chieco, Esq., Petrone & Petrone, PC, Utica, on behalf of Defendant, County of Oneida. Julie Grow Denton, Esq., McMahon and Grow, Rome, on behalf of Defendant, Tony Baker. Michael Damia, Esq., Harter Seacrest & Emery LLP, Rochester, on behalf of Defendant, Shumaker Consulting, Engineering and Land Surveying, PC. Rocco Versace, Esq., Rome, on behalf of Defendant, Hogan Engineering, PC.
Michelle E. Broadbent, Esq., Kowalczyk, Deery & Broadbent, LLP, Utica, on behalf of the plaintiffs.
Mark Chieco, Esq., Petrone & Petrone, PC, Utica, on behalf of Defendant, County of Oneida.
Julie Grow Denton, Esq., McMahon and Grow, Rome, on behalf of Defendant, Tony Baker.
Michael Damia, Esq., Harter Seacrest & Emery LLP, Rochester, on behalf of Defendant, Shumaker Consulting, Engineering and Land Surveying, PC.
Rocco Versace, Esq., Rome, on behalf of Defendant, Hogan Engineering, PC.
ERIN P. GALL, J.
Papers Submitted
Plaintiff's Motion for Summary Judgment with supporting exhibits
Affirmations of Plaintiff's Attorney in Support of Motion
Plaintiff's Memorandum of Law in Support of Motion
Joint Affidavit in Support of Plaintiff's Motion
County of Oneida Notice of Cross Motion and Opposition to plaintiff's Mtn
County of Oneida Affidavit of Sean Clive
County of Oneida Memorandum of Law
Affirmation of Mark Chieco, Esq on behalf of County
Notice of Cross Motion by Shumaker Consulting
Attorney Affirmation of Michael Damia, Esq. on behalf of Shumaker Consulting
Affidavit of Linda Shumaker
Memorandum of Law on behalf of Shumaker Consulting
Answering Affidavit of Motion for Summary Judgment by Hogan Engineering
Hogan Engineering Reply to Affidavit of Sean Clive
Hogan Engineering Reply to Defendant Baker's Affidavit
Hogan Engineering Answer to Cross Motion of County of Oneida
Hogan Engineering Answering Affidavit to Cross Motion of Shumaker Consulting
Affirmation of Plaintiff's Attorney in Response to Defendant County's Opposition
Affirmation of Plaintiff's Attorney in Response to Defendant Baker's Opposition
Affirmation of Plaintiff's Attorney in Response to Defendant Shumaker's Cross Motion
Baker Affidavit and Memorandum of Law
The plaintiff, MKCAC, LLC (hereinafter referred to as "MKCAC") is the owner of Kayuta Lake Campgrounds in Forestport, New York. Plaintiffs contracted with Defendant Hogan Engineering, PC (hereinafter referred to as "Hogan") to draft plans for the design of an outdoor in-ground swimming pool. Hogan is a licensed domestic corporation providing professional civil and structural engineering services in the County of Oneida and State of New York. MKCAC contracted with Defendant Tony Baker (hereinafter referred to as "Baker") to construct the pool (hereinafter referred to as "the Project"). Defendant Baker operates a pool installation business in Rome, New York. The original plans for the Project were drawn by Hogan and were submitted to the Defendant, County of Oneida (hereinafter referred to as the "County") for review and approval. The County contracted with Defendant Shumaker Consulting Engineering & Land Surveying, P.C. (hereinafter referred to as "Shumaker") to review and approve all plans submitted to the County to determine that they were in compliance with all relevant statutes and regulations.
On or about the Spring of 2009, MKCAC retained Defendant Hogan for the sum of $1,250.00 (twelve hundred and fifty dollars) to design and supervise construction of the Project, and to ensure compliance with all relevant codes, laws and regulations. In June of 2009, MKCAC entered into an agreement with Defendant Baker for the sum of $57,805.00 (fifty seven thousand, eight hundred and five dollars) to "furnish all materials and perform all labor necessary for the completion of an in-ground swimming pool 16 x 40 x 24L shaped 8' steps, all filtration, cleaning, sanitation equipment to be installed in accordance with Health Department and Engineer specifications."
On or about August 27, 2009, Defendant Shumaker issued a letter to Defendant County which acknowledged review of the Project plans and determined that the plans met all applicable regulations and recommended that the County issue approval. On August 27, 2009, the County issued a Certificate of Approval of plans (hereinafter referred to as the "Initial Approval") to the plaintiffs and an email to the plaintiffs informing them that "construction can commence based on the version of the plans that [Shumaker] is recommending for approval." (See, Email from Sean Clive, Principal Public Health Sanitarian, Oneida County Health Department, dated August 27, 2009).
MKCAC commenced construction of the pool in the Fall of 2009 pursuant to the approved plans. On May 24, 2010, the County conducted an inspection of the pool at which time a problem with the bottom stripe on the pool floor was revealed. Other issues were also noted. The County began discussions with the New York State Department of Health and learned that the pool was not in compliance with NYS Sanitary Code, Subpart 6–1, and serious or potentially dangerous conditions existed, namely related to the slope of the pool, the slippery liner, lack of breakpoint markings and other non-conforming items. By letter dated June 18, 2010, Defendant County subsequently rescinded the Initial Approval of the pool plans.
MKCAC claims that after the Initial Approval was rescinded, it was compelled to excavate the first pool and install a second pool. MKCAC seeks reimbursement from the defendants for, to wit, the cost of replacing the pool and lost revenue. MKCAC claims that they have been damaged by the defendants in the sum of $250,000 for the defendants' failure to properly design, construct and supervise the Project. MKCAC claims that Defendants Hogan and Baker breached their respective contracts with the MKCAC and that Defendants Hogan, Baker, Shumaker and the County were negligent in their involvement with the Project.
Specifically, MKCAC claims that Defendant Hogan: 1) breached its agreement with MKCAC by failing to, in compliance with all pertinent codes, laws, rules and/or regulations: a) develop plans and specifications; and b) supervise the work relative to the Project; and that Defendant Hogan 2) was negligent in performing under its agreement with the MKCAC.
MKCAC further claims that Defendant Baker 1) breached his contract with MKCAC in that he sold, installed, supervised and/or otherwise made provision for an in-ground outdoor swimming pool that was not in accordance with the Health Department and engineer specifications and/or was not fit for the commercial or other purposes for which its use was intended and made known to Defendant Baker; and 2) was negligent in failing to user the care and skill in the selection of the swimming pool and other accommodations and/or provision and failed to properly and sufficiently supervise the construction and installation of the same.
MKCAC claims that Defendant Shumaker engaged in professional negligence and/or malpractice. MKCAC also alleges that Shumaker is liable to MKCAC as a third party beneficiary of the contract with Defendant Oneida County.
Finally, MKCAC claims that Defendant Oneida County was negligent in reviewing and approving MKCAC's plans for the pool project and ensuring compliance with applicable rules and regulations in accordance with the New York State Sanitary Code, Public Health Law and Oneida County Health Department.
MKCAC moves for summary judgment on the grounds that there are no genuine issues of material fact to be determined in connection with this action and that the plaintiff's causes of action have been established sufficiently against each defendant to warrant the Court, as a matter of law, to direct judgment in the plaintiff's favor.
Defendant County of Oneida opposes MKCAC's motion and cross-moves to amend its answer to assert affirmative defenses and deem its answer served. The County also seeks an order granting summary judgment and dismissal of all of the plaintiff's claims against the County.
Defendant Shumaker opposes the plaintiff's motion for summary judgment and cross-moves for summary judgment seeking an order dismissing the plaintiff's complaint and the cross-claims of Defendants Baker and Hogan.
Defendant Baker also opposes the plaintiff's motion for summary judgment. Defendant Hogan opposes the plaintiff's motion for summary judgment but does not oppose the cross-motion of Defendant Shumaker or Defendant County. MKCAC opposes all cross-motions.
In considering all motions and cross-motions, the Court has reviewed the pleadings, the motion papers submitted by the parties, including depositions of witnesses, affidavits, affirmations of counsel, and memoranda of law, and has considered the oral arguments of counsel.
Defendant County's Motion to Amend Pleadings and Deem Answer Served
New York Civil Procedure Law and Rules (hereinafter referred to as " CPLR") § 3025(b) provides, in pertinent part: "A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." "Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit." Holst v. Liberatore, 105 AD3d 1374, 1374 (4th Dept., 2013), citing McFarland v. Michel, 2 AD3d 1297, 1300 (4th Dept., 2003). See also Anderson v. Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1198 (4th Dept., 2007). "The decision to allow or disallow the amendment is committed to the court's discretion." Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959 (1983). Further, when the original complaint provides the necessary evidentiary support for the motion, there is additional bases for allowing the amendment. McFarland, supra; see also Dever v. DeVito, 84 AD3d 1539, 1541 (3rd Dept., 2011), lv. dismissed 18 NY3d 864. "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" Edenwald Contr. Co., supra; see generally Boxhorn v. Alliance Imaging, Inc., 74 AD3d 1735, 1736 (4th Dept., 2010).
In this instance, the County seeks to amend its answer to include the affirmative defenses of governmental immunity and special duty. The County claims that even though it did not plead such affirmative defenses in its answer, MKCAC knew or should have known that the County would rely on those defenses as MKCAC's alleged a special duty in their complaint and thereby implicated the immunity doctrine themselves. Further, the County claims that this motion to amend is timely as discovery and depositions have not yet been completed and the Note of Issue has not yet been filed.
MKCAC objects to the County's motion to amend. MKCAC claims that the County waived its defenses of governmental immunity and absence of special duty when it failed to allege them in its answer but MKCAC does not establish that it would be prejudiced by such an amendment and/or that this amendment takes MKCAC by surprise.
"It is well established that leave to amend shall be freely given pursuant to CPLR § 3025(b), absent prejudice or surprise. The determination to grant leave rests with the discretion of the court and should be made on a case-by-case basis." Girardin v. Town of Hempstead, 209 A.D.2d 668, 668 (2nd Dept., 1994) ; see Mayers v. D'Agostino, 58 N.Y.2d 696 (1982) ; Fahey v. County of Ontario, 44 N.Y.2d 934 (2013) ; Matter of Department of Social Services [Katherine McL.] v. Jay W., 105 A.D.2d 19 (2nd Dept., 1984). Further, CPLR § 3025(b) states, in pertinent part, "a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading." Based on the foregoing, the Court hereby grants the County's motion to amend its answer and deem such answer served.
Motions and Cross–Motions for Summary Judgment
New York's Civil Practice Law and Rules § 3212(b) governs motions for summary judgment. CPLR § 3212(b) specifically states that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." A party moving for summary judgment bears the initial burden of affirmatively establishing its entitlement to judgment as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Where a party fails to do so, the motion will be denied, regardless of the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once the moving party makes a prima facie showing, the burden then shifts to the opposing party to "show facts sufficient to require a trial of any issue of fact. Zuckerman v. City of New York, supra. "Issue finding, rather than issue-determination, is the key to procedure." Esteve v. Abad, 271 AD 725 (1st Dept., 1947).
When considering a defendant's motion for summary judgment, it is well-established law that a court must consider the plaintiff's allegations, asserted in both the complaint and any accompanying affidavits submitted in opposition to the motion, as true and resolve all inferences which reasonably flow therefrom in favor of the plaintiffs. Sanders v. Windship, 57 N.Y.2d 391, 394 (1982) ; Kaufman v. Kaufman, 135 A.D.2d 786, 787 (2nd Dept.1987) ; Apple Records v. Capitol Records, 137 A.D.2d 50, 59 (1st Dept., 1988) ; Schooley v. Mannion, 241 A.D.2d 677 (3rd Dept., 1997). "To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues." Wanger v. Zeh, 45 Misc.2d at 93 (1965).
Defendant County of Oneida
In order for a municipality to be liable for negligence, the municipal entity must have been engaged in a proprietary function at the time the claim arose. Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425 (2013). "If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties." Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446 (2011), cert. denied sub nom. Ruiz v. Port Auth. of New York & New Jersey, 133 S Ct 133 (2012). A government entity performs a purely proprietary role when its "activities essentially substitute for or supplement traditionally private enterprises." Applewhite at 425, citing Sebastian v. State of New York, 93 N.Y.2d 790, 793 (1999). In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are "undertaken for the protection and safety of the public pursuant to the general police powers." Applewhite, supra.
It is a difficult task for courts to distinguish between actions that are proprietary and those that are undertaken by a municipality in exercising a governmental function. The Court in Applewhite outlined several factual scenarios distinguishing cases that fall under proprietary versus governmental conduct. Police and fire protection are examples of long-recognized, quintessential governmental functions. Valdez v. City of New York, 18 NY3d 69, 75 (2011) ; Harland Enters. v. Commander Oil Corp., 64 N.Y.2d 708, 709 (1984). Further examples of governmental functions include: security operations at the World Trade Center; Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 450 ; oversight of juvenile delinquents, Sebastian v. State of New York, supra; issuance of building permits or certificates of occupancy, Rottkamp v. Young, 15 N.Y.2d 831, 833 (1965), affg 21 A.D.2d 373 (2nd Dept., 1964) ; Worth Distribs. v. Latham, 59 N.Y.2d 231, 237 (1983) ; certifying compliance with fire safety codes, Garrett v. Holiday Inns, 58 N.Y.2d 253, 261–262 (1983) ; teacher supervision of a public school playground, Bonner v. City of New York, 73 N.Y.2d 930, 932 (1989) ; boat inspections, Metz v. State of New York, 20 NY3d 175, 179–180 (2012) ; and garbage collection, Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 194–195 (1957). In contrast, courts have found that certain medical services delivered by the government in hospital-type settings are more akin to private, proprietary conduct, see e.g. Schrempf v. State of New York, 66 N.Y.2d 289 (1985) ; Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592 (1999) ; Matter of Murray v. City of New York, 30 N.Y.2d 113 (1972). As a general rule, the distinction is that the government will be subject to ordinary tort liability if it negligently provides "services that traditionally have been supplied by the private sector" Sebastian, 93 N.Y.2d at 795. See Applewhite at 425–426.
If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a "special duty" to the injured party. In order to "sustain liability against a municipality, the duty breached must be more than that owed the public generally." Valdez v. City of New York, 18 NY3d 69 at 75 (2011), quoting Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000). A special duty can arise in three situations: (1) when the plaintiff belongs to a class for whose benefit a statute was enacted; (2) when there is a "special relationship" in that the government entity voluntarily assumes a duty to the plaintiff beyond what is owed to the public generally; or (3) when a municipality takes positive control of a known and dangerous safety condition. Applewhite v. Accuhealth, Inc., 21 NY3d 420(2013) ; Metz v. State of New York, 20 NY3d 175, 180 (2012). "It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself. In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity." Applewhite v. Accuhealth, Inc., 21 NY3d 420, 426 (2013) ; Lauer, supra at 100; Valdez, supra at 75.
A "special relationship" exists when the following four elements are present: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking. Applewhite v. Accuhealth, Inc., supra at 426, quoting Cuffy v. City of New York, 69 N.Y.2d 255, 260 (1987). A plaintiff must satisfy each of these factors in order to establish a special relationship. Applewhite v. Accuhealth, Inc., supra.
In this case, MKCAC was required to apply to Oneida County for a permit to construct and install the pool. The application to the County required the County to complete the following tasks: review the Project plans; assess the Project's compliance with specifically designated laws and regulations; issue interim directives regarding the foregoing; and ultimately approve or deny the Project. Oneida County did not have the engineering staff to perform these tasks, so it contracted with Defendant Shumaker to assist in this regard. Ultimately, the County did issue an Initial Permit which allowed MKCAC to proceed with the construction. It wasn't until after construction was near completion that the County rescinded the application due to noncompliance with New York State regulations. MKCAC looks to hold the County liable for improperly issuing the Initial Permit which led them to move forward with the Project that was ultimately a failure, requiring MKCAC to excavate the first pool and install a second pool, resulting in added time and cost.
MKCAC has moved for summary judgment against the County on the grounds that the County waived its defenses to immunity and the absence of a special duty and that the County's responsibilities did not involve discretionary acts or reasoned judgment but were ministerial. Furthermore, MKCAC alleges that the County violated Public Health Law § 225 and its regulations and that the County assumed a special duty to MKCAC and breached such alleged duty. (As addressed above, the Court has held that the County did not waive the affirmative defenses of immunity and absence of special duty and has permitted the County to amend its Answer to include the same.) The County opposes MKCAC's motion cross-moves seeking summary judgment against MKCAC on the grounds that it is entitled to immunity as a matter of law and that it did not owe a special duty to the plaintiff.
In its analysis of the arguments presented, this Court likens the County's actions in this case to the line of cases involving governmental entities issuing certificates of occupancy and/or building permits documenting compliance with fire safety codes. Courts have consistently held that there is no municipal liability for failure to perform a general protective governmental function; an inspector's failure to ascertain a violation cannot confer liability. Young v. State of New York, 278 App. Div. 997, affd. 304 NY677 (1952); Infosino v. City of New York, 25 A D 2d 841 (1st Dept., 1996), mot. for lv. to app. den. 18 N.Y.2d 583 ; Whitney v. City of New York, 27 A D 2d 528 (1st Dept., 1966) ; Smullen v. City of New York, 28 N.Y.2d 66 (1971).
As set forth above, in order for the County to be subject to ordinary rules of negligence, the Court must find that the County was acting in a proprietary or non-governmental role in this case. Based on the foregoing, despite the fact that the County later rescinded the Initial Permit, the Court finds that the County was clearly acting in a governmental capacity when it issued the permit for the Project. As such, the County may not be held liable for acting in a governmental capacity and is immune from liability in this case. Notwithstanding this finding, the County may yet be liable for negligence if it owed a
special duty to MKCAC. The Court finds that none of the three circumstances establishing a special duty are present in this case. With respect to the first, the Court of Appeals has ruled that the Public Health Law was enacted for the benefit of the general public, and not to a specific group of persons. Palaez v. Seide, 2NY3d 186 (2004); Matter of Putnam Lake Commuity Council Bathing Beaches v. Deputy Commissioner of Health of State of New York, 90 A.D.2d 850 (2nd Dept., 1982). The Court further finds that the County's contract with Shumaker precludes the finding of a "special relationship" between MKCAC and the County because Shumaker assumed the role of review and approval of the project plans, and MKCAC was aware of this arrangement. With respect to the third situation establishing a special duty—when a municipality assumes control of a situation in which a known, blatant and dangerous safety condition exists—the Court finds MKCAC's argument fails, again, because Shumaker was hired to ensure compliance with health and safety codes.
The Court finds that the County has succeeded in demonstrating a prima facie entitlement to judgment as a matter of law on the defense of governmental immunity and absence of special duty. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). Giving the Plaintiff the benefit of every possible inference, the Court finds that MKAC has failed to show facts sufficient to require a trial of any issue of fact with respect to the County's immunity in this case. Zuckerman v. City of New York, supra. Based on the foregoing, MKAC's motion for summary judgment as against the County is denied and Defendant County's motion for summary judgment is hereby granted.
Defendant Shumaker
Caselaw is clear with respect to the liability of an independent contractor working on behalf of a municipality, "[t]he nearly unanimous rule in torts is that independent government contractors do not share in that immunity. Contractors are not liable for incidental or necessary damage, but are liable for negligence or wilful torts." Royal Ins. Co. of Am. v. RUVAL Elec. Corp., 918 FSupp. 647, 659 (E.D.NY 1996). See also Cassel v. Babcock & Wilcox Co., 186 A.D.2d 1000 (4th Dept., 1992). "The general rule of law is that the immunity of a contractor performing a contract with a public body does not extend to one who is guilty of negligence in the performance of such contract." cf. 28 U.S.C. § 2679(b)(1), (d)(1) (1994) (Federal Tort Claims Act provisions limiting claims against government employees); 28 U.S.C. § 2671 (same denying government contractors similar protection); United States v. Orleans, 425 U.S. 807, 813–14 (1976) (control of detailed work critical). Therefore, the immunity enjoyed by the County in this case does not extend to its contractor if such contractor is negligent in the performance of its duties.
MKCAC claims that Defendant Shumaker is liable to the Plaintiff, for negligence, as certifier of compliance assessment and as third party beneficiary of Shumaker's contract with Oneida County.
To establish a prima facie case of negligence, a plaintiff must demonstrate (1) that the defendant owed him or her a duty of reasonable care, (2) there was a breach of that duty, and (3) a resulting injury proximately caused by the breach. Boltax v. Joy Day Camp, 67 N.Y.2d 617 (1986) ; Achaibar v. City of New York, 45 Misc.3d 1036, 1037 (Queens Cty. Sup.Ct., 2014). Professionals who are careless in the performance of their service of certifying the accuracy of a product or service may be found liable when another relies on the veracity of that certification to their detriment. Glanzer v. Shepard, 233 N.Y. 236 (1922) ; Ossining Union Free School Dist. V. Anderson, 73 N.Y.2d 417 (1989). In order for the certifier to be liable, there must be privity of contract, or something "so close as to approach that of privity, if not completely one with it," Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 184 (1931).
Courts have held that the following must be present in order for liability to be extended when there is not privity of contract: 1) awareness that the reports were to be used for a particular purpose; 2) reliance by a party in known furtherance of that purpose; and 3) some conduct by the defendant linking them to the party and evincing defendant's understanding of that reliance. Credit Alliance Corp. V. Andersen & Co., 65 N.Y.2d 536, 551 (1985). In Ossining Union Free School Dist. v. Anderson, supra, the Court held that an engineer was liable to the school district for damages even though the engineer's contract was with the architect and not the school district itself. The engineer moved to dismiss the action as to them, alleging that absent contractual privity, neither the negligence claim nor the malpractice claim could be sustained. The trial court dismissed the complaint against the engineer, but the Court of Appeals reversed on the basis that the underlying relationship between the school and the engineer was so close as to be the functional equivalent as to privity. Ossining, supra.
In the instant case, the County entered into a contract with Shumaker to provide plan review and inspection assistance services in accordance with New York State Codes, Rules and Regulations. Under the terms of this agreement, the County agreed to waive all claims against Shumaker arising from the review services to be provided by Shumaker under the contract except for Shumaker's sole negligence or willful misconduct. MKCAC argues that Shumaker, as a certifier of compliance assessment for the County should be liable for its negligent review and inspection services and that such liability extends to the Plaintiff because of its close relationship with Shumaker. MKCAC claims that Shumaker was in direct contact with MKCAC, and that MKCAC was required to rely, ultimately to its detriment, upon the acts or omissions of the County and Shumaker given the dictates of the County.
Shumaker contends that there was no privity of contract with MKCAC and therefore Shumaker owed no duty to the MKCAC. Shumaker claims that MKCAC did not retain Shumaker, it did not receive any reports directly from Shumaker, nor did MKCAC pay Shumaker for services provided. Shumaker also argues that there is nothing apparent from the face of the contract between the County and Shumaker that indicates the parties' intent to make third parties, such as the Plaintiff, intended beneficiaries.
MKCAC claims that it was an intended third party beneficiary of the County's agreement with Shumaker to provide the County with on-call engineering and inspection services. MKCAC cites numerous documents reflecting Shumaker's agreement to provide the County with plan review, engineering review, installation inspections and technical consultation "for the purpose of assessing if related state, local and federal regulations and standards are met by the applicant" See Scope of Services, Paragraph 2.1.
It is undisputed that Shumaker was primarily responsible for ensuring the pool's compliance with all relevant codes and regulations, and that Shumaker recommended the Project for approval despite the fact that it did not conform to current regulations. (Letter to County from the NYS Department of Health dated 6/18/10 included a table consisting of thirty three separate concerns comprised of 13 pages.) However, whether Shumaker's relationship with MKCAC was "so close as to approach that of privity, if not completely one with it," is unclear, citing Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 184 (1931). There is nothing in the written agreement between Shumaker and the County that specifically refers to MKCAC. In addition, Shumaker's contract with the County contemplated work outside of the Project. The County also maintains that MKCAC was not intended beneficiaries of its contract with Shumaker. Based on the foregoing, the Court finds there to be a question of fact with respect to whether Shumaker was in privity of contract with MKCAC and whether MKCAC was a third party beneficiary of the County's contract with Shumaker. Therefore, because questions of fact exist with respect to the relationship between the parties, both MKCAC's motion for summary judgment as against Shumaker is hereby denied and Defendant Shumaker's cross-motion for summary judgment is hereby denied.
Shumaker has also moved the Court to dismiss the indemnification cross-claims and the contribution claims of Defendants Baker and Hogan. Shumaker argues that there was no contractual relationship between Shumaker and/or Hogan and Baker upon which either may have a claim for contractual indemnity, nor has MKCAC alleged that Baker and/or Hogan are vicariously liable for any wrongdoing of Shumaker. MKCAC seeks to hold Baker and Hogan liable for their own independent breaches but not in the context of a master/servant relationship. A viable claim for indemnity requires either an express contractual agreement to indemnify or an implied contract where one party, though without fault, is held vicariously liable for the wrongdoing of another party. SSDW Co. v. Feldman–Misthopolous Assocs., 151 A.D.2d 293 (1st Dept., 1989) ; Gordon J. Phillips, Inc. V. Concrete Materials, Inc., 187 A.D.2d 1024 (4th Dept., 1992).
The underlying causes of action against Baker and Hogan lie in contract and negligence. Contribution is not available when the underlying claim is essentially a breach of contract claim or merely seeks damages for economic loss. Livingston v. Klein, 256 A.D.2d 1214 (4th Dept., 1998).
Based on the foregoing, Shumaker has met its burden of establishing prima facie entitlement to judgment as a matter of law on the indemnification and contribution claims of Baker and Hogan. In response, Defendants Baker and Hogan have failed to identify a triable issue of fact with respect to these claims. Therefore, Defendant Shumaker's motion for summary judgment on the indemnification and cross-claims of Hogan and Baker is hereby granted.
Defendant Baker
MKCAC has asserted two causes of action against Defendant Baker—breach of contract/implied warranty of fitness, and negligence.
In order to maintain a cause of action for breach of contract, MKCAC must show: 1) the existence of a contract; 2) the plaintiff's performance under the contract; 3) the defendant's breach of the contract; and 4) damages to the plaintiff. JP Morgan Chase v. J.H. Elec. of NY, Inc., 69 AD3d 802, 803 (2nd Dept., 2010) ; Clearmont Prop., LLC v. Eisner, 58 AD3d 1052, 1055 (3rd Dept., 2009) ; Niagara Foods, Inc. v. Ferguson Elec. Serv. Co., 111 AD3d 1374, 1376 (4th Dept., 2013), leave to appeal denied, 22 NY3d 864 (2014).
In order to maintain an action under the doctrine of implied warranty for a particular purpose, the plaintiff must establish that a seller (i.e., Baker) knew the purpose for which the goods would be used and that the buyer (i.e., MKCAC) relied upon the seller's skill and judgment to furnish suitable goods. Export Development Canada v. Electrical Apparatus & Power, LLC, 2008 WL 4900557 13 (SDNY 2008). Pursuant to UCC 2–315 , "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose." Peter Inzerilla, as the Adm'r of the Estate of Roseanne Inzerilla & Peter Inzerilla, Individually, Plaintiffs, v. The Am. Tobacco Co., Am. Brands, Inc., et al, No. INDEX11754196, 2000 WL 34016364 (N.Y. Sup.Ct. Oct. 27, 2000).
MKCAC's second cause of action against Defendant Baker is for negligence. Negligence is lack of ordinary care or a failure to use that degree of care or skill that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances. NY Pattern Jury Instructions—Civil 2:10; Nappi v. Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 (2nd Dept., 2005) [internal quotation marks and citation omitted]; see Cerrato v. Rapistan Demag Corp., 84 AD3d 714, 716 (2nd Dept., 2011) ; Sanchez v. 1710 Broadway, Inc., 79 AD3d 845, 846 (2nd Dept., 2010) ; Gover v. Mastic Beach Prop. Owners Assn., 57 AD3d 729, 730 (2nd Dept., 2008) ; Ortega v. Liberty Holdings, LLC, 111 AD3d 904, 905 (2nd Dept., 2013).
Defendant Baker contracted with MKCAC "to furnish all the materials and perform all the labor necessary for the completion of an in-ground swimming pool, 16 x 40 x 24 L shaped 8' steps all filtration—cleaning—sanitation equipment to be installed in accordance with Health Dept. and Engineer specifications." MKCAC contends that it paid Baker $57,805.00 pursuant to the terms of the contract, and fully performed it obligations under the contract, but that Baker breached his contractual obligations to MKCAC in not providing to MKCAC a pool "in accordance with Health Dept. and Engineer specifications." MKCAC argues that regulatory non-compliance constitutes prima facie evidence that Baker breached his agreement with the Plaintiff and that Baker admitted that he was familiar with the NYS Sanitary code and its applicability to the Project in his response to Plaintiff's First Set of Interrogatories. MKCAC further argues that Baker breached an implied warranty of fitness for a particular purpose as Baker knew the purpose for which the goods would be used—a public pool—and that the goods were unsuitable for such purpose given the regulatory defects.
MKCAC also claims that Baker is liable to the plaintiffs for negligence as he failed to use reasonable care in constructing the pool, as is evidenced by the fact that the pool failed to meet Health Dept. and engineering specifications.
Defendant Baker concedes that he knew that the pool was to be used as a public pool. Baker argues, however, that he was not negligent in his construction of the pool, and that he constructed the pool in accordance with the plans prepared by Defendant Hogan. Baker alleges that he performed his contractual obligations as is evidenced by the fact that Hogan certified the pool to be in compliance with specifications on May 22, 2010 (which indicated that the pool was constructed in accordance with approved construction documents and the New York State Sanitary Code, Subpart 6–1, entitled "Swimming Pools") and the County gave its Initial Permit on May 25, 2010. Baker alleges that once he was informed of the County's Initial Approval per the pool inspection on May 25, 2010, he never received any notification from MKCAC or any other defendants of any alleged deficiency in the pool until MKCAC commenced this cause of action. Baker also argues that he was never given an opportunity to cure any alleged defects in the construction and that the Plaintiff failed to mitigate any damages in its failure to contact Baker regarding any alleges it may have sustained.
Based on the foregoing, it is clear that a question of fact exists with respect to whether Baker breached his contract with MKCAC and/or whether he used due skill in the installation and supervision of construction of the pool. Therefore, the Plaintiff's motion for summary judgment as against Defendant Baker is hereby denied.
Defendant Hogan
MKCAC alleges that Defendant Hogan is liable to them for breach of contract and for negligence/professional malpractice. As cited above, in order for the Plaintiff to maintain an action for breach of contract, the Plaintiff must establish: 1) the existence of a contract; 2) the Plaintiffs' performance under the contract; 3) the defendant's breach of the contract; and 4) damages to the Plaintiff. JP Morgan Chase v. J.H. Elec. of NY, Inc., 69 AD3d 802, 803 (2nd Dept., 2010) ; Clearmont Prop., LLC v. Eisner, 58 AD3d 1052, 1055 (3rd Dept., 2009) ; Niagara Foods, Inc. v. Ferguson Elec. Serv. Co., 111 AD3d 1374, 1376 (4th Dept., 2013) leave to appeal denied, 22 NY3d 864 (2014).
MKCAC entered into an agreement with Defendant Hogan for $1,250 to develop a plan and specifications to install "an L shaped pool 16' wide x 40', 16 x 24 [sic] (768 square feet) on the Plaintiff's campground." MKCAC claims that Hogan breached its agreement with it in that Hogan failed to develop plans that met the requisite regulatory requirements and also failed to recognize, when the plans were implemented and the pool inspected, that the finished product failed to meet code. Hogan denies such failures and claims that it made the necessary corrections to the plans upon direction from Defendant Shumaker and that any deviation in plans was caused by the actions of Defendant Baker.
MKCAC also alleges that Hogan is liable for negligence/professional malpractice as a New York State Licensed Professional Engineer because he improperly certified that the pool was in compliance with approved construction documents and the New York State Sanitary Code—Subpart 6–1 Swimming Pools. MKCAC cites numerous documents in which Hogan represents and/or certifies as to compliance with the NYS Sanitary Code (see Plaintiffs' Exhibits 7, 14, 15). MKCAC claims that Hogan bears the responsibility for the regulatory non-compliances and that these non-compliances constitute prima facie evidence of the fact that Hogan's certifications were inaccurate and that Hogan breached its contractual obligations to MKCAC in not providing the plaintiffs with a pool "in accordance with approved construction documents and the New York State Sanitary Code—Subpart 6–1, Swimming Pools. Again, Hogan denies the allegations of MKCAC and claims that it made the necessary corrections to the plans upon direction from Defendant Shumaker and that any deviation in plans was caused by the actions of Defendant Baker.
Based on the foregoing, it is clear that questions of fact exist as to whether Defendant Hogan breached its contractual obligations to MKCAC and or whether Defendant Hogan is liable for negligence/professional malpractice. Therefore, the Plaintiff's motion for summary judgment as against Defendant Baker is hereby denied.
NOW THEREFORE, based upon the foregoing analysis and the authority cited above, it is hereby
ORDERED AND ADJUDGED that the Plaintiff's motions for summary judgment as against all defendants are hereby denied; and it is hereby
ORDERED AND ADJUDGED that the County's motion to amend its answer and deem answer served is granted; and it is hereby
ORDERED AND ADJUDGED that the County's cross-motion for summary judgment is granted and the Plaintiff's complaint as against the County is dismissed; and it is hereby
ORDERED AND ADJUDGED that Defendant Shumaker's cross-motion for summary judgment on the Plaintiff's claims is denied; and it is hereby
ORDERED AND ADJUDGED that Defendant Shumaker's motion for summary judgment on the cross-claims of Defendant Baker and Defendant Hogan is granted; and it is hereby
ORDERED that counsel for the Defendant County shall file this decision with the Oneida County Clerk's office within ten days of the date of this decision, and shall serve a copy of the filed decision upon all other counsel, with notice of entry thereon, within ten days of the date of filing.