Mastrobattista v Borges, 2016 NY Slip Op 06546 [143 AD3d 475]

October 6, 2016

Appellate Division, First Department

[*1]

John D. Mastrobattista et al., Plaintiffs,

v

Raquel Moura Borges et al., Defendants, Pier Head Associates Ltd., Appellant, and Jacqueline LiCalzi, as Executrix of Luke LiCalzi, Deceased, et al., Respondents.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Gregory A. Tsonis of counsel), for appellant.

Sinnreich Kosakoff & Messina LLP, Central Islip (Michael Stanton of counsel), for Jacqueline LiCalzi and Luke LiCalzi, P.E., P.C., respondents.

Schwartzman, Garelik, Walker & Troy, P.C., New York (Donald A. Pitofsky of counsel), for Leila A. Hooper, respondent.

Orders, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about November 12, 2014 and on December 9, 2014, which, to the extent appealed from, dismissed defendant Pier Head Associates Ltd.’s cross claims against codefendants Jacqueline LiCalzi, as executrix of the estate of Luke LiCalzi, P.E., and Luke LiCalzi, P.E., P.C., and Leila A. Hooper, as executrix of the estate of Karl I. Beitin, respectively, unanimously affirmed, without costs.

In this action arising from the construction of a penthouse on top of defendants Raquel Moura Borges and A2B LLC’s building, the general contractor, defendant Pier Head Associates, Ltd., appeals from so much of the orders of the motion court that dismissed its cross claims against the project engineers, defendants LiCalzi and Beitin. The dispute centers on Pier Head’s decision to use the party walls on both sides to support the vertical extension, allegedly encroaching upon and affecting plaintiffs’ abutting properties. Pier Head asserted cross claims for indemnification and contribution against the engineers, claiming that it was their plans that led to the use of the party walls.

Pier Head’s cross claims against the engineers were properly dismissed. The engineers demonstrated that they were not involved in the decisions made by Pier Head to utilize the party walls to support the vertical extension. The record reflects that LiCalzi was cut out of the [*2] construction process after it urged caution, including consultation with counsel, prior to the use of the party walls, and that Beitin was not retained as the project engineer until after the penthouse was substantially completed. Concur—Renwick, J.P., Richter, Manzanet-Daniels, Feinman and Kapnick, JJ..