Sometimes flamboyant, often visionary, architects are different from the general masses. Celebrity architects often have unique personal style, including unusual eyeglasses. That all aside, architects are granted a higher standard of proof against them in negligence actions, as is described in New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng’g, P.C., 2017 NY Slip Op 31790(U), August 25, 2017, Supreme Court, Kings County Docket Number: 295/2015-E, Judge: Debra Silber.
“In or around March, 1991 , twenty-two years before the fire, defendant engineering firm was retained by Crockett Fuel Oil Co. (“Crockett”) on behalf of the prior owner of the premises to file for a permit with the New York City Department of Buildings (“DOB”) to install a new boiler. Defendant submitted , as part of the permit application, a drawing of the proposed boiler installation (“Drawing”; Exhibit D2). The drawing indicates where the new equipment was to be located in the boiler room. It also includes the specific model numbers of the equipment to be installed. It is an overhead view. It is drawn on a form clearly provided by the DOB, with extensive verbiage on the left side clearly not written by the defendant. The verbiage includes a provision that there is to be “a minimum of 18 inches clearance .. . provided around [the] boiler with 3′-0″ in front.” There is no place on the Drawing that indicates the height of the boiler room or the height of the boiler model number specified. If other drawings were filed , they were not included in the motion papers. On May 7, 1991 , the DOB issued a work permit for the installation of the boiler. In issuing the permit, the DOB stamped the Drawing as “Accepted under Directive 14 of 1975.”
On March 10, 2013 at around 5:00 P.M., approximately six months after the current owner bought the building from the prior owner, who had owned it since 1990, a fire broke out in the basement of the Premises, which caused significant damage. ”
“In support of its motion for summary judgment dismissing plaintiffs’ complaint, defendant first argues that there exists no triable issue of material fact. Defendant argues that a motion for summary judgment brought pursuant to CPLR 3212 must be analyzed under the substantial basis standard, which requires plaintiffs to demonstrate that a substantial basis in fact and law exists to believe that defendant’s conduct was the proximate cause of plaintiffs’ injuries. Defendant asserts that there is no genuine or material issue of fact regarding defendant’s lack of involvement in and responsibility for the design, installation, inspection, and servicing of the boiler. Defendant submits an affidavit of its President, Robert Perotto, who avers that defendant was retained by Crockett, who was hired by the prior owner of the Premises, solely to obtain a work permit, and that the Drawing was only to be used for the express purpose of obtaining a work permit to install a new boiler and burner. Mr. Perotto states that his firm did not install the boiler, supervise its installation or certify to the DOB that it was properly installed. Mr. Perotto also states that his firm never inspected the installation, nor did they prepare any annual inspection report for the premises. Second, defendant argues that it does not owe a duty of care to plaintiffs or their subrogors, because defendant was solely retained to obtain a work permit and was not responsible for the design, installation, inspection, or servicing of the boiler. Defendant asserts that because it did not owe any duty of care to the prior property owner or his assignees, it is not liable as a matter of law. Third , defendant argues that plaintiffs have failed to prove that defendant’s conduct was the proximate cause of the fire. ”
“The action insofar as asserted against the defendant arises under CPLR 214-d, which applies to certain actions against licensed engineers and architects. A motion to dismiss an action arising under CPLR 214-d is subjected to “heightened scrutiny” and “shall be granted unless the party responding to the motion demonstrates that a substantial basis in law exists to believe that the performance, conduct or omission complained of such licensed architect [or engineer] . .. was negligent and .. . a proximate cause of personal injury . . . complained of by the claimant” (CPLR 3211 [h]). “[A] court reviewing the sufficiency of a complaint under CPLR 3211 (h) must . .. determine whether the claim alleged is supported by such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Castle Vil. Owners Corp. v Greater N. Y. Mut. Ins. Co., 58 AD3d 178, 183, 868 NYS2d 189 [1 st Dept 2008] [internal quotation marks omitted]). See Schmitt v Spector, 129 AD3d 1052, 1052-1053 [2nd Dept 2015); Kenny v Turner Constr. Co., 107 AD3d 412 [1st Dept 2013). The Court of Appeals has explained “[a]n interruption of the nexus between defendant’s negligence and plaintiffs injury by the act of a third party may affect defendant’s liability. An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act . . . so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” (Kush by Marszalek v City of Buffalo, 59 NY2d 26, 33 ). “If the intervening act is .. . independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ).
Plaintiffs’ claims herein cannot withstand defendant’s summary judgment motion because plaintiffs fail to demonstrate that a substantial basis in fact and law exists to show that defendant’s alleged negligence, carelessness, or recklessness was the proximate cause of the March 10, 2013 fire. According to the DO B’s records, which are publicly available on the internet and which the court takes judicial notice of, the boiler was inspected approximately twenty times for the preparation and filing of the required annual boiler inspection reports between the time of its installation in 1991 and the date of the fire. In addition, the current owner had a professional inspect the premises before he purchased it. This report is EFile document 255 in the “main” action. The report is dated September 26, 2012 and states, at page 16, that the boiler was observed to be in average to fair condition, was twenty years old and would need to be replaced in approximately ten years. “