Plaintiff Courtney Associates owns an apartment building known as Courtney House on West 15th Street in Manhattan. Defendant 50 West 15th LLC (50 West) owns the adjacent property, and this lawsuit arises from its construction of a new condominium apartment building on that land. Defendant Kenneth Stuart Horn (Horn) is a member of the limited liability company that is the sole member of 50 West, and he is the president of defendant Alchemy Properties, Inc. (Alchemy). Alchemy is a related entity to 50 West. Defendant Red Hook Construction Group-I, LLC (Red Hook) and third-party defendant Donmar Contracting Corporation (Donmar) were contractors on the construction site, and defendants Severud Associates Consulting Engineers, P.C. (Severud) and GZA Geo Environmental Inc. (GZA) were engineering professionals for the project. In motion sequence 05, Severud moves to dismiss the complaint and all cross-claims as against it; in motion 06, GZA moves for summary judgment dismissing the complaint and all cross-claims as against it, and for summary judgment on its third-party complaint against Donmar; in motion 07, 50 West, Alchemy, Horn and Red Hook move for summary judgment dismissing the complaint and cross-claims as against them.

FACTS

Courtney House is a residential building with 239 apartments. There is a parking garage in its sub-cellar. From April 2005 to February 2006, the sub-cellar was renovated and a six inch thick slab of reinforced concrete was placed over a bed of gravel, through which drainage pipes were installed to collect water that was drained into a sump pump. On February 24, the slab cracked, and sand, mud and water were forced up into the sub-cellar.

As explained in greater detail below, there is no dispute that this damage is related to the 50 West activity nearby. 50 West was engaged in construction of the foundation and underground structural elements to support its new building. The disputes concern which of the defendants is responsible, and whether any defendant is liable for punitive damages arising from what happened next.

50 West hired Red Hook as general contractor. Red Hook's responsibilities included excavating and constructing the new building's foundation, as well as underpinning buildings on adjoining properties, such as Courtney House, to protect them during excavation and other activities (see, Oppenheimer Aff., Ex. 24-25). Alchemy was 50 West's construction manager. Alchemy [*2]hired Severud to be a structural engineer; as relevant here, Severud designed the foundation and structure. Alchemy hired GZA to be a geotechnical engineer. Severud's and GZA's contracts with Alchemy stated that the engineers are not responsible for the "means and methods" employed by contractors performing the actual construction work. However, GZA advised Alchemy on the specific locations for the mini-caissons, and had an engineer on site to observe the installation process (see, Oppenheimer Aff., Ex. 21).

GZA worked with Severud and advised on how to secure the building in the ground taking into account sub-surface conditions and, in particular, how to secure the building so that the load was carried by solid bedrock located approximately 25 to 50 feet below the sidewalk elevation (see deposition transcript of Patrick Mahon, annexed to GZA's motion at Ex. D, 41). Before GZA was hired, a report was prepared by yet another professional, Mueser Rutledge Consulting Engineers (MRCE), which described a geotechnical survey of the construction site (Oppenheimer Aff., Ex. 8). The MRCE report described the make-up of subsurface soil, the depth of solid rock, and the depth of the groundwater table. Groundwater was found at depths of 10.5 to 20.7 feet below grade, stabilizing at approximately 19.4 feet.

Severud and GZA engineers recommended the installation of caissons to secure the building structure. The proposed caissons were to be 12, 18 and 24 inches in diameter. To save time, Red Hook proposed using a larger number of mini-caissons, all of a smaller, uniform size (see deposition transcript of Christopher Lynch, annexed to Severud's motion at Ex. N, 86-87). GZA and Severud were consulted, and plans were made to implement the change.

The method for installing caissons described by GZA's witness, Patrick Mahon, involves rotating a steel pipe into the ground, and removing the soil within by use of an auger, like a giant screw. The pipe is driven further into the ground until it hits stable rock, at which point the pipe is seated on the rock, which is drilled into. The contents of the pipe are removed with the auger, and the excavated space is filled with concrete or grout (Mahon Dep., 42-44). Mini-caissons may be installed in this manner as well, or more commonly are installed with an air-flush or water-flush system, whereby the steel pipe is rotated into the ground, a drill bit inside is pressurized with water or air that flushes the excavated material up the pipe to the surface.

A drilling contractor Red Hook hired to dig the mini-caissons walked off the job after a dispute. Red Hook then leased drilling equipment from Donmar, to which it also paid a consulting fee. Donmar hired its own engineer, Solomon Rosenzweig, to give technical advise on the drilling. Red Hook [*3]employees operated the drilling equipment (Lynch Dep., 16).

A pressurized air flush system, also referred to as a rotary air drilling system, was used. Holes for the mini-caissons were drilled approximately five feet from Courtney House. The air pressure apparently was set too high, and, as a result, subsurface water, sand and silt were displaced under Courtney House. Courtney Associates theorizes that pressurized air from Red Hook's rotary air drilling system displaced material under its building, causing the concrete slab to crack, and pushing water, mud and sand up into the sub-cellar. This theory finds significant support in defendants' deposition testimony and documentary evidence (see Oppenheimer Aff., paragraph 8, and citations referenced therein, and Mahon Dep., 187-188).

When the initial damage was discovered on Friday, February 24, Courtney Associates notified Alchemy's Michael Filler (Filler) and Red Hook. Courtney Associates had asked Alchemy to stop the drilling, but Alchemy refused. Filler called Ahmad Ardebili, a Severud engineer, for consultation. Ardebili claims that he advised Filler to consult with GZA, who had an engineer on site, and if GZA determined that Courtney House was not in danger, to proceed with the drilling cautiously. After Filler consulted a GZA engineer, drilling resumed using lower air pressure.

On Monday, February 27, drilling resumed. According to Filler, a New York City Department of Buildings (DOB) inspector arrived at the site and permitted the work to continue because he determined that there was no danger to Courtney House's structural integrity (see deposition transcript of Michael Filler, annexed to Severud's motion at Ex. H, 171). Courtney Associates permitted a Red Hook employee to be stationed in its sub-cellar with a radio to report if more mud came up through the slab. On February 28, more mud was seen coming through the slab, and Red Hook stopped after completing the hole it was then drilling.

At about this time or soon thereafter, a different DOB inspector arrived and caused a "stop work" order to be issued on March 1, 2006 (Aff. Of Jeffrey A. Oppenheim, Esq., in Opposition to Motions for Summary Judgment, Ex. 14). On March 2, 2006, this court issued a temporary restraining order prohibiting 50 West and Alchemy from continuing excavation or construction work (Oppenheim Aff., Ex. 15). In time, and after consultations between Courtney Associates and defendants that resulted in the implementation of different methodologies, the stop work order and TRO were lifted and construction resumed.

Courtney Associates alleges three causes of action against all defendants: negligence, trespass and nuisance.

[*4]The Motions

HORN and ALCHEMY

Horn contends that he acted solely in his capacity as an officer of Alchemy and member of the limited liability company that owns 50 West. Although he was involved in the 50 West project, he did not directly supervise the drilling at issue here, and Courtney Associates has not rebutted his prima facie showing that there is no basis for individual liability on his part. Accordingly, Horn's motion is granted.

As a threshold matter, that branch of Alchemy's motion for summary judgment premised on Horn's allegation that Alchemy did not play a significant role in the project is denied. At the very least, a question of fact exists regarding Alchemy's role because Filler, who was produced for deposition as an Alchemy employee,^[FN1] describes a central decision-making role for Alchemy akin to that of a construction manager; this testimony is supported by documentary evidence and the testimony of other witnesses. Horn's allegation that another entity, 15th Construction LLC, was the construction manager appears to be the only mention of that entity in the record, and said entity is apparently unknown to the other defendants who were retained and directed by Alchemy.

TRESPASS and NUISANCE

The Court of Appeals described the element of intent for a trespass claim in Phillips v Sun Oil Co. as follows:

Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness . . . . To constitute such a trespass, the act done must be such as "will to a substantial certainty result in the entry of the foreign matter" (Restatement, Torts, § 158, comment h).

(307 NY 328, 331 [1954][citations omitted]).

In this case, the trier of fact could find that by using a highly pressurized air drilling system within a few feet of Courtney Associates's property, below the level of what was known to be the water table, Red Hook should have known that there was a substantial certainty that air, water, silt and other material [*5]would enter plaintiff's property (see, Federal Highway Admin. Guidelines, publication no. FHWA-RD-96-018 [1997], excerpted at Oppenheimer Aff. Ex. 27, and see PJI 3:8, Trespass to Land). Moreover, Red Hook was specifically charged by 50 West and Alchemy to take precautions to prevent damage to Courtney House (Oppenheimer Aff., Ex. 24-25).

50 West admits it had a duty to protect Courtney Associates's property from the hazards of construction, which it claims it delegated to Red Hook by contract (50 West Reply Memorandum, 12). While this delegation of duty may be effective to defeat the negligence claim, it does not defeat the trespass or nuisance claims because the trespass and nuisance involve the movement of 50 West's property to its neighbor's property, thereby displacing the neighbor's property and causing damage.

A nuisance claim arises where a landowner makes an intentional and unreasonable use of his land to the material injury of a neighbor's right to use and enjoy its land (see Restatement 2d, Torts, § 822). Defendants do not contest that Courtney Associates suffered a material injury to its land. Whether defendants' conduct was intentional within the meaning of the law governing nuisance claims is a question of fact (see PJI 3:16 and discussion of intent for trespass, supra). The law is clear, however, that any person who creates or participates in the creation of a nuisance is liable therefor (Penn Cent. Transp. Co. v Singer Warehouse & Trucking Corp., 86 AD2d 826 [1st Dept 1982]). Red Hook's direct participation is not contested. Defendants 50 West, Alchemy and GZA have not shown that they are entitled to judgment as a matter of law regarding their participation, particularly after the cracked slab was initially reported to them. This is because further damage allegedly resulted after they were informed of the situation, consulted among themselves and decided to proceed with the rotary air drilling. Severud, however, has demonstrated that its participation was peripheral to this decision, and it deferred to GZA's geotechnical engineering expertise. There is no indication that the opinion of its engineer, Ardibili, that drilling could go forward if GZA determined it was safe to do so was a meaningful factor in the decision to proceed.

NEGLIGENCE

50 West and Alchemy persuasively argue that they cannot be liable for negligence because they did not exercise the requisite supervisory control over Red Hook's drilling operation (Buckley v Columbia Grammar & Preperatory, 44 AD3d 263 [1st Dept 2007]). The motions by GZA and Severud also are granted with respect to the professional negligence claim for purely economic loss, because plaintiff does not allege privity or a relationship so close as to approach privity (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [1989]). These [*6]defendants have established that they did not owe Courtney Associates a duty of care as design professionals (id., and see Melnick v Parlato, 296 AD2d 443 [2d Dept 2002]). The negligence claim remains against Red Hook. Existence of a duty owed to plaintiff is established by evidence that Red Hook "launched an instrument of harm" by improperly using a rotary air drill under the circumstances, and because it was contractually charged with taking steps to protect Courtney House on 50 West's behalf (Espinal v Melville Snow Contr., 98 NY2d 136 [2002]).

Finally, the demand for punitive damages is stricken. Courtney Associates has not shown that any defendant engaged in wanton conduct rising to the level necessary to support such a claim. Accordingly, it hereby is

ORDERED that the motion for summary judgment by 50 West, Alchemy, Horn and Red Hook is granted to the extent that the complaint and all cross-claims are dismissed as against Horn; the negligence claim in the complaint is dismissed as against 50 West and Alchemy; the demand for punitive damages is stricken; and the motion otherwise is denied; and it further is

ORDERED that the motion by Severud for summary judgment dismissing the complaint and cross-claims as against it is granted, and the complaint is severed and dismissed accordingly, and cross-claims by and against Severud are dismissed, and the Clerk is directed to enter judgment accordingly with costs and disbursements as taxed; and it further is

ORDERED that GZA's motion is granted to the extent that the negligence and trespass claims are dismissed as against it, and its motion otherwise is denied; and it further is

ORDERED that counsel shall appear in Part 55 for a pre-trial conference on August 31, 2009 at 2 PM.

Dated: July, 2009

ENTER:

__________________

J.S.C.