The following papers numbered 1 to 17read on this motion by plaintiff The Long Island Railroad Company (LIRR) for summary judgment in its favor and against defendant/third-party plaintiff/second third-party plaintiff American Recycling Management, LLC (American) on the issue of liability, and on this cross motion by second third-party defendants Galli Engineering, P.C. (Galli) pursuant to CPLR 603 to sever the second third-party action, or, in the alternative, to strike the Note of Issue and Statement of Readiness on the grounds that all necessary preliminary [*2]proceedings have not been completed.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits1-5

Notice of Cross Motion - Affidavits - Exhibits6-9

Answering Affidavits - Exhibits10-15

Reply Affidavits16-17

Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows:

In this action, plaintiff LIRR seeks damages for property damage sustained when a section of the west wall of a waste transfer station owned and operated by defendant/third-party plaintiff/second third-party plaintiff American, located at 172-25 Douglas Avenue, Jamaica, New York, collapsed onto plaintiff LIRR's Hillside Electrical Substation (Hillside Substation) on March 13, 2010. In its complaint, plaintiff LIRR alleges that defendant/third-party plaintiff/second third-party plaintiff American, the owner of the subject premises, defendant/third-party defendant Disano Construction Co., Inc. (Disano), the general contractor engaged for the construction of the wall, and defendant Gerald J. Caliendo, Architect, P.C. (Caliendo), the architect, who is alleged to have been responsible for the inspection of the construction, were all negligent in the design, construction and maintenance of the west wall of defendant/third-party plaintiff/second third-party plaintiff American's waste transfer station. Plaintiff LIRR contends that the negligence of the defendants caused the wall to collapse causing extensive damage to the Hillside Substation which rendered the Hillside Substation inoperable and temporarily interfered with the operation of the LIRR. Plaintiff LIRR also alleges that it cost $700,000.00 for repairs to make the Hillside Substation operational and to permit the movement of trains.

Defendant American purchased the subject premises from nonparty Crown Recycling (Crown) in or about the year 2000. Defendant Caliendo, an architect hired by nonparty Crown in 1996, to coordinate the structural and mechanical design of the building, and to secure its certificate of occupancy, testified as follows: Nonparty Crown hired third-party defendant Efraim Goldstein and his firm, Efraim Goldstein, P.C. (third-party defendants Goldstein) as the structural engineers to design and specify every structural element for the premises, and second third-party defendant Galli to prepare plans outlining the operation of the facility as a trash handling location sufficient to secure approvals from the New York City Department of Sanitation. By 1998, construction on the building was complete and it was operating as a waste transfer station. After purchasing the subject property from nonparty Crown, defendant/third-party plaintiff/second third-party plaintiff American used the property for that very same purpose. The building was primarily a prefabricated steel structure with a masonry enclosure wall on the two lot lines and with the prefabricated steel siding enclosure on the two sides other than the lot line conditions which were the street and their own property portions. The north and west sides of the building abut plaintiff LIRR's property, with plaintiff LIRR's tracks adjacent to the north side and the Hillside Substation adjacent to the west. The west wall of the building was constructed of concrete block on top of a foundation wall that extended approximately five feet out of the ground, with the steel columns of the superstructure, which held the roof, and the concrete block was braced with metal straps to the steel columns of the building. He assumed the purpose of the metal strapping was to reinforce the cinder block wall. Defendant Caliendo [*3]observed garbage against the walls of the premises, including the west wall, and it was his understanding that the original design of the west wall was made by the structural engineer with the foundation coming out of the ground approximately five feet for the purpose of the front end loaders being able to scoop up the garbage against the reinforced concrete portion of the wall to pick it up. He believes that subsequently, steel plates were put up against the wall, which he observed upon his inspection of the premises after the subject collapse. At that inspection, he also noted that the west wall's steel columns were bent and the straps holding the columns were broken leading him to believe that the columns were struck laterally by front loaders during the removal of waste, and that the repeated use of the wall by the front loaders undermined the integrity of the wall.

In defendant Caliendo's opinion, on the date of the accident, there was a hurricane event and when the force of the storm entered the building from the east, since there was nowhere for that pressure/force to be released, such as, by opening the garage door on the south side of the building, that wind force resulted in the pushing of the wall, which was not secure to the columns at that point, and the wall collapsed partially. He did not know whether the wind from the storm would have knocked down that wall even if there was no damage to the columns or the steel supports and the straps.

Robert Buffalino, who is employed in Operations Management, testified on behalf of defendant/third-party plaintiff/second third-party plaintiff American as follows: His daily responsibilities included his walkthroughs of the facility to make sure that the facility was adhering to NYC Department of Sanitation guidelines. The garbage trucks would enter the facility and unload the waste in the tipping area, which is adjacent to the west wall, and the waste would be pushed into the backside of the west wall where the steel is located and then loaded in the loading area which is south of that. He described that steel as an eighteen-foot steel wall that protects the whole tipping area and the west wall. After receiving a call on the subject date about the collapse, he returned to the facility and observed a hole in the west wall. In addition, on the south side of the west wall and adjacent thereto, a roll up door was off of its track. It was a very bad night - windy and stormy. A security guard informed him that when he opened one of the two doors on the east side of the building because they were being severely swayed by the wind, a gust of wind went into the building, and the back wall collapsed.

Michael Mekako, an Engineer for Substation 2 of plaintiff LIRR, testified on its behalf that on the subject date, a wall of the adjacent property collapsed onto the high voltage rack, and the substation went offline. He also testified regarding the damage that was done to the Hillside Substation because of the collapse of that wall, and the various repairs that were necessary to make the substation functional.

Plaintiff LIRR was granted a default judgment in its favor and against the contractor, defendant/third-party defendant Disano, in an Order of this Court, dated September 30, 2013. In that same Order, a cross motion by defendant/third-party plaintiff/second third-party plaintiff American for a default judgment in its favor and against defendant/third-party defendant Disano on its cross claim for apportionment of damages by means of contribution and/or indemnification was denied.

In another Order of this Court dated August 19, 2014, defendant Caliendo's unopposed motion for summary judgment was granted and plaintiff LIRR's complaint and all cross claims against defendant Caliendo were dismissed. In its decision, the Court noted that it appeared that defendant Caliendo did not have a substantive role during the course of construction and did not supervise, direct or control the manner of construction or the means and methods employed by any of the other entities in the construction.

Plaintiff LIRR now moves for summary judgment in its favor and against defendant/third-party plaintiff/second third-party plaintiff American on the issue of liability. Second third-party defendant Galli cross-moves to sever the second third-party action or to strike the note of issue claiming that it has just appeared in this action and has not had an opportunity to conduct discovery.

This matter is no longer on the trial calendar since the Note of Issue was stricken by Order of the Honorable Martin J. Schulman dated July 23, 2014. The parties reported at Conference with Justice Schulman that significant discovery remains outstanding. Further, there has been no showing of substantial prejudice to any party to warrant severance of the second third-party action.

Accordingly, second third-party defendant Galli's cross motion to sever the second third-party action or to strike the note of issue is denied.

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980].) Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers. (See Winegrad v New York Univ. Med. Ctr., supra.) Furthermore, the court's function on a motion for summary judgment is issue finding, not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), or credibility assessment. (See Ferrante v American Lung Association, 90 NY2d 623 [1997].) Once this showing has been made, however, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact. (See Alvarez v Prospect Hosp., supra.)

In this case, plaintiff LIRR has failed to meet its initial burden of establishing its entitlement to judgment as a matter of law. Plaintiff LIRR failed to make a prima facie showing that defendant/third-party plaintiff/second third-party defendant American created the alleged dangerous condition, or had actual or constructive notice of its existence. Instead, plaintiff LIRR's submissions, including the affidavit of its expert and the examinations before trial testimony of the parties raise triable issues of fact regarding the cause of the alleged dangerous condition of the subject wall collapse; whether the wall collapse was caused by any negligent design and/or construction of the wall by the former owner of the premises, nonparty Crown, and its alleged contractor, defendant/third-party defendant Disano, and alleged engineers, third-party defendants Goldstein and second-third-party defendant Galli; whether defendant/third-party plaintiff/second third-party defendant American improperly used the west wall in its garbage handling operations and if so, whether same proximately caused the subject wall collapse; and whether the wind from the storm was the sole proximate cause of the wall collapse.

Plaintiff LIRR's expert, Robert J. O'Connor, P.E., opines that high winds were not the cause of the collapsed wall, but rather, that the incident section of masonry block curtain wall on the west side of the building collapsed, during a storm with only moderate wind speeds, from the wall being in a previously weakened state, as a result of the incident wall being used as a push wall related to defendant/third-party plaintiff/second third-party defendant American's recycling operations. According to plaintiff's expert, O'Connor, garbage should only be pushed against the metal sheeting or plates. Defendant Caliendo, however, testified that the original design of the west wall was made by the structural engineer with the foundation coming out of the ground approximately five feet for such purposes of the front end loaders being able to scoop up the garbage against the reinforced concrete portion of the west wall to pick it up. This evidence [*4]raises the issue as to defendant/third-party plaintiff/second third-party defendant American's negligence, if any, in its waste transfer operations. While plaintiff LIRR's expert, O'Connor, also avers that the highest recorded 3-second gust wind speed of 50 miles per hour (mph) on the date of the accident is significantly below the design 115 mph 3-second gust wind speed according to industry accepted design standard ASCE 7-95 and later additions, in support of his opinion that the wall collapse was not due to the wind, but from the wall's weakened state from being used as a push wall in American's recycling operations, this raises another question as to whether the subject wall was designed and constructed in compliance with such industry standard. Finally, the testimony of defendant/third-party plaintiff/second third-party defendant American's witness, Robert Buffalino, regarding the storm, as well as, the testimony of defendant Caliendo, regarding the hurricane force wind at the time of the accident and his inability to say whether such hurricane force wind would have knocked down the wall even without any damage to its columns or steel supports and straps, raise a triable issue regarding whether the wind from the storm was the sole proximate cause of the collapsed wall.

Since plaintiff LIRR failed to meet its initial burden of establishing its entitlement to judgment as a matter of law, the Court need not consider the sufficiency of defendant/third-party plaintiff/second third-party defendant American's opposition papers. (See Winegrad v New York Univ. Med. Ctr., supra.)

Accordingly, plaintiff LIRR's motion for summary judgment is denied.

February 9, 2015

ROBERT J. McDONALD

J.S.C.