Court Declines To Dismiss Engineer Where Collapse Occurred Nearly Two Decades After Alleged Design Defect
December, 2008
On May 12, 2005, a 250-foot section of a retaining wall bordering the Castle Village co-op complex collapsed onto the Henry Hudson Parkway (a major artery providing access into and out of Manhattan). The collapse closed the Parkway and damaged other property nearby. Castle Village sued, among others, Langan Engineering & Environmental Services, Inc. (“Langan”), the engineers who monitored the retaining wall since 2002. Langan, in turn, filed a Third-Party action against Mueser Rutledge Consulting Engineers (“MRCE”), the engineers who designed and implemented corrective measures for the stability of the retaining wall in 1985. Castle Village Owners Corp. v. Greater New York Mut. Ins. Co., et al., -- N.Y.S.2d --, 2008 N.Y. Slip Op. 09470, (1st Dep’t December 02, 2008).
In 1985, MRCE inspected the site and recommended several repairs, including placing eight rock anchors at least four feet into the bedrock behind the wall. From 1986 to 1987, MRCE’s proposed repairs were executed by a contractor under MRCE’s supervision. In 2002, Langan first monitored the wall and determined that some movement was occurring. In 2005, Langan conducted additional surveys and concluded that the wall was moving more rapidly. Langan designed an emergency bracing system, however, the wall collapsed before the system could be implemented.
In its Third-Party Complaint, Langan alleged that MRCE failed to properly supervise the installation of the rock anchors or test them once they were in place. Id. Langan also alleged that the rock anchors were too short for their intended purpose. Id. Langan supported its allegations with an Affidavit from its expert, who, in addition to finding that MRCE’s actions were a contributing factor to the collapse, also opined that with proper design and installation, the rock anchors would have given Langan more time to stabilize the wall. Id.
MRCE retained its own engineering expert, who opined that MRCE met the standard of care expected of professional engineers, did not contribute to the failure of the Castle Village retaining wall, and that Langan had sufficient time between 2002 and 2005 to take corrective action to prevent the collapse. Id. MRCE then moved the trial court to dismiss Langan’s Third-Party Complaint, pursuant to CPLR 3211(h), which provided:
A motion to dismiss … an action in which a notice of claim must be served on a licensed architect … engineer … pursuant to the provisions of [CPLR 214(1)], shall be granted unless the party responding to the motion demonstrates that substantial basis in law exists to believe that the performance, conduct or omission complained of … was negligent and that such performance, conduct or omission was a proximate cause of … property damage complained of …
CPLR 214-d(1), provides that if the professional performance, conduct or omission by an architect or engineer occurs more than ten years prior to a claim, the claimant must provide certain specific notice. The trial court denied the motion.
On appeal, the First Department discussed the history of Sections 214-d and 3211(h) -- both added to the CPLR in 1996 to ameliorate the effects of permitting negligence actions against design professionals regardless of the amount of time between the completion of the work and the loss. Castle Village, 2008 N.Y. Slip Op. 09470 at *4. As noted by the First Department, prior to the 1996 enactment, the law tended to facilitate “marginal” claims against design professionals based on defects arising long after work was completed and the improvements for which they were initially responsible had been in the owner’s possession and subject to the owner’s use and maintenance. Id., citing Senate Memo in Support, L 1996, ch 682, 1996 McKinney’s Session Laws of NY, at 2614.
Legislative intent notwithstanding, the First Department declined to hold that CPLR 3211(h) is a de facto bar to claims for design losses occurring more than ten years after completion. As discussed by the Court, the heightened standard of review only requires that: “[A] court reviewing the sufficiency of a complaint under CPLR 3211(h) must look beyond the face of the pleadings to determine whether the claim alleged is supported by ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’” Id., citing 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978).
According to the Court, the practical test for whether “relevant proof” is “adequate to support a conclusion or ultimate fact” is “whether the allegations and evidence presented would require submission to a jury as a question of fact.” Id., citing Gramatan, 45 N.Y.2d at 180. Under the “question of fact” test, MRCE’s expert Affidavit only disputed Langan’s allegations, it did not disprove them. Id. Thus, because the allegations and Affidavit provided a “substantial basis” to believe that MRCE was negligent, and because such negligence would make MRCE’s conduct a proximate cause of the damage, the First Department allowed Langan’s claim to proceed. Id.
Learning Point
Even where a court is conscious of the marginal character of claims grounded in defects arising long after work has been completed, the “question of fact” nature of some allegations may nonetheless preclude dismissal before trial. An engineer may be liable for acts occurring nearly 20 years before the injury.
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