Defendant Gerald J. Caliendo, (hereinafter "Caliendo"), moves, pursuant to CPLR Rule 2221(d), for leave to reargue and renew an order of this Court dated November 16th, 2007 which denied his motion for summary judgment, and for such other and further relief as the Court may deem just and proper.

Upon reading Defendant Caliendo's Notice of Motion dated February 29th, 2008, together with the Affirmation in Support of Motion of Steven R. Goldstein, Esq., counsel for Caliendo, undated, and all exhibits annexed thereto; the Affidavit of Gerald Caliendo, dated February 28th, 2008; Defendant Caliendo's Memorandum of Law in Support of his Motion to Renew, the Affirmation in Opposition of James L. Franklin, Esq., counsel for Plaintiff, dated March 19th, 2008; Plaintiff's Memorandum of Law, dated March 17th, 2008; the Reply Affirmation of Fred A. Strahs-Lorenc, Esq., dated March 27th, 2008, and all exhibits annexed thereto; the Amended Reply Affirmation of James L. Franklin, Esq., dated April 2nd, 2008; the Reply Affirmation of Jefferey Beitler, Esq., dated April 2nd, 2008; the Reply Affirmation of James L. Franklin, Esq., dated May 20th, 2008; and after argument of counsel and due deliberation thereon, Defendant Caliendo's motion for leave to renew and reargue is denied for the reasons set forth below.

This is an action in which Plaintiff seeks monetary damages for damage sustained to its building located at 27 Jefferson Avenue, Brooklyn, during the construction of a new building on the adjoining lot, at 25 Jefferson Avenue, Brooklyn, (hereinafter "the premises").

Defendant Caliendo, the architect on the project, entered into an agreement to provide certain architectural services to 107 Building Corp. in connection with the design and construction of the premises, including filing plans with and obtaining a permit from the New York City Department of Buildings, (hereinafter "DOB), to conduct excavation operations at the premises. On or about November 14th, 2004, the excavation operations were commenced. Caliendo's plans called for the footings of the new building to be aligned and at the same depth as those of Plaintiff's building, so no underpinning would be necessary. Plaintiff claims that the excavation for the foundation of the new building was dug deeper than 10 feet, and below the level of the his foundation. Plaintiff alleges that as the result of the lack of underpinning, his building was damaged as it was caused to "settle into the soil".

The Court denied Caliendo's motion for summary judgement on the ground that he filed a subgrade inspection that falsely certified that the excavation complied with his plans and applicable codes, which DOB relied on, to allow construction to proceed without underpinning.

Defendant Caliendo argues that the Court misapprehended the significance of his filing the excavation inspection, that such a inspection only certifies that the excavation complies with the plans and code at the time of the inspection. Caliendo asserts that at the time he inspected the excavation it complied with his plans and no underpinning was required. He implies that the contractor must have excavated further after his inspection. He asserts that since he was never notified that the foundation was excavated deeper than ten feet or than the level of the adjacent foundation that he can not be held responsible. Caliendo also argues in this motion that there is no admissible evidence that the excavation went deeper than ten feet or deeper than the foundation of Plaintiff's building.

The basis for the Court's decision was that by signing the Statement of Responsibility, for the subgrade inspection, Defendant certified to the Department of Buildings that the actual excavation conformed to his plans. This meant he was certifying that the excavation was less than ten feet and was aligned with the foundation of Plaintiff's building.

The Court wrote in its original decision that Caliendo "either falsely certified that he did the inspection when he did not do so or he did the inspection and falsely certified that the excavation conformed to his plans that no underpinning was required."

In Defendant Caliendo's original moving papers he argued that he was not liable because he had no construction phase responsibilities and did not have any obligation to inspect the work. In his deposition, of October 18th, 2006, Caliendo stated that he did not inspect the excavation. (pp 13, 17) . Now, in his affidavit in support of the motion to reargue, he claims that he did perform the subgrade inspection at the site and certified that he completed the subgrade inspection pursuant to NYC Administrative Code §27-723.

Caliendo claims that at the time he did the subgrade inspection, the excavation complied with his plans and did not exceed ten feet. He states in his new affidavit that at the time of his inspection, he observed excavation equipment still on the site and that no concrete trucks had arrived. He implies, but does not actually state, that the contractors must have continued excavating after his inspection without notifying him. The admission that the excavation equipment was still on site and the cement trucks were not, is evidence that he did not conduct the inspection immediately prior to construction of the footings. Thus, even if one accepts this new version of events, it would not relieve Caliendo of liability.

Administrative Code §27-723 specifically requires that the subgrade inspection be done "after excavation and immediately prior to the construction of footings." (Emphasis added).

The code does not merely require the subgrade inspection to take place before construction of the footings, but that it take place immediately before the construction of the footings. The clear import of this requirement is to certify that the excavation in its final condition conforms to the plans filed, as well as to any applicable codes. This requirement as to when the inspection takes place is no mere technicality, but assures that it is safe to proceed with the laying of the foundation. The certification by the architect is done in lieu [*3]of the Department of Buildings inspecting the excavation and determining it is safe to proceed.

A subgrade inspection made some time before the footings were constructed would be of little value precisely because there would be no assurance that the excavation was in its final condition at the time of the inspection and that it was safe to construct the footings and foundation.

By filing the TR1 report dated September 25th, 2006 certifying that he completed the subgrade inspection pursuant to § 27-723, Caliendo was certifying that he conducted the inspection after excavation was complete and immediately prior to construction of footings and that the excavation complied with the plans and codes when construction of the footings was commenced.

He was certifying that the excavation was aligned with the foundation of Plaintiff's building and did not require underpinning, not only at the time of his inspection, but also immediately prior to construction of the footings.

Defendant has not put forth any evidence to contest Plaintiff's evidence, that when the footings were ultimately constructed, the excavation was not aligned with Plaintiff's foundation.

The Department of Buildings relied on Caliendo's certification to allow the building to be constructed without underpinning. Thus, there is a question of fact as to whether his certification was a substantial factor in causing the damage to Plaintiff's building.

Defendant Caliendo also asserts in the motion to reargue and renew that there is no evidence in the record that the excavation in fact exceeding 10 feet in depth at the time he made his inspection.

In his original motion Defendant Caliendo did not contest the fact that ultimately the excavation was in fact dug deeper than 10 feet and deeper than Plaintiff's foundation. Defendant's attorney stated in paragraph 25 of his March 27th, 2007 Affirmation in Support of the original motion, that ". . .the contractor elected to proceed with excavation and construction at a depth greater than 10 feet . . ."

Further, when asked during his deposition whether the excavation was more than ten feet, Caliendo answered, "I can only assume it was greater than ten feet because that's where the foundation was" (p.18).

However, whether the excavation was more than ten feet at the time of Caliendo's inspection is not the dispositive issue. As discussed above, the fact that his inspection did not take place immediately prior to construction of footings, even though Caliendo certified that it did, is itself, a material misrepresentation.

Defendant's attorney asserted in oral argument that Caliendo believed that he made the inspection immediately prior to construction of the footings. However, Caliendo does not state that in his affidavit. Caliendo does not state that the inspection took place immediately prior to construction of the footings or even state what date the inspection took place. [*4]

Further, Caliendo's statements, in paragraph 13 of his affidavit, that at the time of his inspection he "observed that excavation equipment was still located on the worksite. No concrete trucks had arrived at that point." are inconsistent with any claim that he believed his inspection took place immediately prior to construction of the footings.

Also, during oral argument, attorneys for Caliendo raised for the first time, the possibility that the foundation in Plaintiff's building may be lower than the new building and thus it would not have been possible to underpin Plaintiff's building. However, Caliendo does not state in his affidavit that he found Plaintiff's foundation to be lower than the excavation. In fact he states in paragraph 11 of his affidavit, that at the time of his subgrade inspection he "observed that the excavation conformed to both his drawings and specifications as well as Administrative Code §27-723". His plans required that the excavation be dug to align with Plaintiff's foundation. If Plaintiff's foundation was lower than the final excavation, than it would not have been in conformance with the Caliendo's plans.

By reason of the foregoing Defendant has not demonstrated a basis to grant reargument. Even if the Court were to accept his new claim to have inspected the excavation, it is clear from his affidavit that he did not inspect the site immediately prior to construction of the footings, despite certifying to the Department of Buildings that he did so.

Lastly, the branch of the motion that seeks renewel must also be denied as Defendant does not cite any new facts or newly discovered evidence.

Wherefore Defendant Caliendo's motion to reargue and renew is denied. This constitutes the decision and order of the Court.

E N T E R,

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J.S.C.