Professional Negligence, especially in the real estate construction field is the source of a number of litigation problems. Architects routinely use arbitration clauses. Zoning issues, including the mistaken analysis of what might be built on a specific lot are themselves subject to governmental immunity. 2649 E. 23 LLC v New York City Dept. of Bldgs. 2017 NY Slip Op 31419(U)
June 26, 2017 Supreme Court, Kings County Docket Number: 521977/16 Judge: Reginald A. Boddie involves a claim that a 4-story building was proposed for a lot upon which it could not be built, and then the City “rubber-stamped” an approval. The 4th story was partially built and had to be removed. Who is at fault?
If it is the architects, then it will all go to arbitration. “Moreover, where the language ofthe arbitration clause is broad, “it should be given the full effect of its wording in order to implement the intention ofthe parties” (Dazeo, 225 AD2d at 579, quoting Weinrott v Carp, 32 NY2d 190, 199 ). Paragraph 5.1 broadly states, “Any dispute relating to this Agreement shall be subject to arbitration and will proceed to mediation as a condition precedent.” Accordingly, the parties are directed to proceed to arbitration as stipulated in the contract and as a favored method of dispute resolution in New York (see e.g. Dazeo, 225 AD2d at 199 [citations omitted]). Additionally, plaintiff opposed DSA’s motion to compel arbitration on the grounds that compelling arbitration would extinguish Schneiders’ cross-claims for contribution and indemnification as Schneider Associates and Steven Schneider were not parties to the contract. However, paragraph 5.2 provides, the claim of a non-party may be consolidated or joined or otherwise included in arbitration upon written consent of all parties. Accordingly, DSA’s motion is granted to the extent the parties are compelled to arbitrate, and without prejudice to the Schneider defendants commencing a plenary action for contribution and indemnification upon resolution ofthe arbitration (CPLR 1403; 1404 [b]).”
Meanwhile, forget about suing the City. “In evaluating whether to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the pleadings must be given a liberal construction, the allegations accepted as true, and the plaintiff accorded every possible favorable inference (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46,52 ). The decision whether to issue a permit, as here, is a discretionary determination and the actions of the government in such instances are immune from lawsuits based on such decisions (City of New York v 17 Vista Assoc., 84 NY2d 299,307  [citations omitted]). There is a narrow exception to that rule in cases where the plaintiffs establish that a special relationship exists between themselves and the municipality (Emmerling v Town of Richmond, 13 AD3d 1150, 1151 [4th Dept 2004], citing see Lauerv City of New York, 95 NY2d 95,102-103 ). Here, however, plaintiffs claims against DOB are devoid of any allegation that DOB owed plaintiff a special duty (cf Garrett v Holiday Inns, 58 NY2d 253, 263 ; cf Village of Camden v National Fire Ins. Co. o.f Hartford, 155 Misc 2d 607, 610 [Sup Ct, Oneida County 1992], aff 195 Ad2d 1091 [4th Dept 1993]). Therefore, plaintiffs negligence claim must fail (Valdez v City of New York, 18 NY3d 69,80 ). DOB’s motion pursuant to Article 78 is denied as moot. NYC Charter S 645 (b) (1) provides, in relevant part, “[w]ith respect to buildings and structures, the commissioner shall have the following powers and duties exclusively, subject to review only by the board of standards and appeals as provided by law: to examine and approve or disapprove plans for the construction or alteration of any building or structure.” DOB’s determination, if any, regarding the factual questions raised in the August 28, 2015 Objection Sheet and referred to in the September 8, 2015 notice required an appeal to the Board of Standards and Appeals (BSA) prior to seeking judicial relief (Matter a/Wilkins v Babbar, 294 AD2d 186, 187 [1st Dept 2002] citing Matter a/Toys “R” Us v Silva, 89 NY2d 411, 418  [reasoning that “[t]he BSA, comprised of five experts in land use and planning, is the ultimate administrative authority charged with enforcing the Zoning Resolution” [citing see NY City Charter SS 659, 666]). However, plaintiff was clear that it was not seeking to challenge the issuance of the pennit or intent to revoke. As such, defendant’s motion, pursuant to Article 78, is denied as moot. DOB’s motion to dismiss, pursuant to CPLR 3211 (a) (7), is granted and the complaint is dismissed against DOB. “