Wing Wong Realty Corp. v. Flintlock Construction Services, LLC

Order, Supreme Court, New York County (Debra A. James, J), entered February 10, 2011, which, insofar as appealed from as limited by the briefs, denied the motion of third-party defendants R.A. Consultants, LLC and Robert Alperstein, PE. for summary judgment dismissing the third-party complaint as against them, affirmed, without costs. Plaintiff alleges damage to its building as a result of excavation work at the adjacent construction site owned by defendant Well-Come Holdings. Third-party defendants, the project’s engineering consulting firm and its principal (together, Alperstein), failed to establish prima facie that as a matter of law they could not be held responsible in part for the damage. Alperstein’s responsibilities included reviewing the plans for the underpinning and recommending modifications to them; yet, their expert, while asserting that Alperstein had acted in accordance with good and accepted engineering practice, failed to indicate either that he had examined the excavation site or reviewed the drawings of the shoring and underpinning that were alleged to be faulty, let alone the particular elements of the design to which Alperstein proposed changes. Alperstein’s expert therefore failed to establish that he possessed the necessary evidentiary basis for his conclusion (see Cassano v Hagstrom, 5 NY2d 643, 646 [1959]). Accordingly, third-party plaintiffs were not obligated to submit expert opinion in opposition to the motion. The claim for contribution was properly asserted, since the property damage claim was not merely cast in breach of contract, but was based on theories of negligence and statutory liability (see Structure Tone, Inc. v Universal Servs. Group, Ltd,., 87 AD3d 909, 911 [2011]). It would be premature to dismiss the claims for common-law indemnification and contribution, since it has yet to be determined whether third-party plaintiffs were at fault and barred from indemnification. Whether Alperstein was at fault and liable for contribution or indemnification also has yet to be determined, since issues of fact exist as to 710 Alperstein’s role in the design of the shoring and underpinning and whether any act or omission on its part caused damage to plaintiffs building. We have considered Alperstein’s other contentions and find them unavailing. Concur — Mazzarelli, J.E, Saxe and Román, JJ.