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\| Home \| About Us \| Attorneys \| Practice Areas \| News \| Contact Us	News > What's New \| HRRV in the Courtroom \| HRRV Newsletter \| HRRV in the Community \| Scheduled Presentations HRRV in the Courtroom Trial Results *345 3rd Street Housing Development Corp. v. Park Slope Garden Inc., Alisa Construction, Inc. and Nobre, Inc.* Supreme Court, Kings County Index Number 13382/2004, February 24, 2010 HRRV Successfully Defends Excavation/Underpinning Contractor at Trial In 345 3rd Street Housing Development Corp. v. Park Slope Garden Inc. (“Park Slope”), Alisa Construction, Inc. (“Alisa”) and Nobre, Inc. (“Nobre”), an adjacent property owner sued for damages sustained to its building during the course of excavation and underpinning work being performed by Nobre. HRRV was asked shortly before trial to substitute as counsel for Nobre. The case was tried before Judge Loren Bailey-Schiffman in the Supreme Court, Kings County. Nobre was hired by Park Slope, the owner of the property known as 347-351 3rd Street, to perform excavation and underpinning as part of the construction of a new six story building. Nobre’s work was overseen by the general contractor, Alisa. The plaintiff alleged that, in March of 2003, while Nobre was installing the underpinning piers beneath its building, it failed to follow the engineering plans. Specifically, the plaintiff claimed that Nobre failed to properly install dry pack between the building foundation and the underpinning piers, thereby causing the front corner of the plaintiff’s building to collapse. As a result, the brownstone bricks on the front façade allegedly cracked and came loose, floors separated from the east side wall, and cracks appeared on the walls throughout the building. Immediately after the residents felt the building move, the City of New York Department of Buildings (“DOB”) was called to the scene and the inspectors ordered the building to be evacuated. The DOB also issued a stop work order and two violations to Park Slope; one under City Code Section 27-201 for the failure to insert 2” dry pack joint between the foundation and new footing; and the second under City Code Section 27-1031 for the failure to protect the adjoining premises upon a finding that the adjoining premises was in danger of collapse. When the file was transferred to HRRV, the plaintiff’s settlement demand was $992,000, representing the cost of the repairs required to correct the damages sustained during the underpinning work and restoring the plaintiff’s building to its original condition. The restoration work included the shoring of the east wall, the replacement of windows and doors throughout the building, and the repair and painting of the plaster walls in each of the individual units and common hallways. The plaintiff also contended that its building continued to sustain damage, and that the repairs performed by Alisa immediately after the occurrence were insufficient and improper. Before the commencement of the trial, the plaintiff had taken a default judgment against Alisa and Park Slope. The defaults resulted from the success of the carriers for those defendants on motions for summary judgment in which it was determined that those insurers did not have the obligation to defend or indemnify those entities. Thus, Nobre was the only defendant present during the liability phase of the trial. Upon receipt of the file, HRRV immediately undertook an investigation into the status of the plaintiff’s building and ascertained that that the plaintiff had a history of failing to file the necessary inspection reports with the DOB, that it had secured a mortgage on the property subsequent to the date of loss (the mortgage appraisal exceeded the amount plaintiff was claiming), and filed for assistance with the NYC Department of Housing Preservation and Development, Article 8A Loan Program, to secure funding for the replacement of the windows in the building. We also determined that, following the incident, Park Slope’s engineer filed documents with the DOB representing that repairs had been made to the plaintiff’s building, and that the underpinning process had been completed. Thus, we subpoenaed these records and introduced them at the trial to establish that the repairs and completed underpinning work had been approved by the DOB. During the liability phase of the trial, plaintiff’s counsel attempted to introduce testimony form the building inspectors relating to the building code violations issued to Park Slope and Alisa. We successfully prevented counsel from offering into evidence the violation issued to Alisa for the failure to properly protect the adjacent property during construction. We asserted that, since the violation was not issued to Nobre, its prejudicial value outweighed its introduction into evidence. However, the court permitted counsel to introduce the DOB violation for the failure to follow the plans and install the 2” dry pack. Plaintiff’s counsel also attempted to introduce a DVD containing video footage taken by a building resident that purportedly showed the progress of the work being performed on the adjacent property from the demolition of the existing building up until the date of the alleged occurrence. Counsel served the DVD on the eve of the second of four adjourned dates for jury selection. Upon receipt of the DVD we immediately filed a motion to preclude its introduction into evidence due to the late service and the fact that video did not include footage of the entire demolition and construction process. Due to the delay between the date of service and the commencement of the trial, the trial judge allowed counsel to lay a foundation to introduce the video as evidence. However, during the voir dire of the building resident it was disclosed that DVD was only a copy of one video tape, and the witness admitted to filming using two video tapes. Rather than preclude the use of the DVD, the judge delayed the trial and directed counsel to serve our office with both videos, and to give us time to prepare for the cross-examination of the witness. As it turns out, the witness had taken five (5) video tapes, containing 10 hours of footage depicting the demolition and excavation work performed up until the date of the loss, and footage of the witnesses apartment after the date in question. When we returned to court, we renewed our objection to the introduction of the DVD into evidence and, given the potential prejudice facing Nobre, the court granted the application. When it came time to combat the plaintiff’s claims, we laid the foundation for Nobre’s defense by offering into evidence the contract between Alisa and Park Slope, and the subpoenaed records from other non-party contractors such as the soil boring contractor, the demolition contractor, and the contractor who installed piles immediately adjacent to the plaintiff’s property. Along with the contract that laid out Alisa’s obligations on the job site, we also introduced testimony from the owner of Nobre to establish that Alisa was in control of the job site, that it controlled when and where Nobre performed its work, and that, if the plaintiff’s building had been compromised in any way, it was due to the four month delay caused by Alisa’s failure to call the client immediately back to the site to complete the excavation and underpinning work. We also introduced testimony from the owner of Nobre that the plaintiff’s building was actually supported by wooden timber piles, some of which had deteriorated. This testimony opened the door for the expert engineer to inform the jury that, since there were timber piles under the plaintiff’s building, the underpinning work being performed by Nobre was not required, and, even if it was done improperly, it had no effect on the plaintiff’s building since the timber piles, even if somewhat deteriorated, were sufficient to support the building. The expert was also able to use the soil boring engineer’s records subpoenaed by our office to inform the jury that the results of the soil boring tests confirmed that both Alisa and Park Slope should have known that the adjacent building was support by timber piles, which meant that the plaintiff’s building did not require underpinning. The expert then explained to the jury in great detail, using the photographs he took during his inspection of the building, that the cause of the sloping of floors toward the middle of the building, as testified to by the plaintiff’s witnesses, was due to the deterioration of the center floor joist, and not any settlement on the part of the east wall. At the close of the liability phase of the trial, the jury determined that Nobre was not negligent in the performance of its work and rendered a defense verdict in Nobre’s favor. Gail L. Ritzert represented Nobre at the trial. Prior results do not guarantee a similar outcome	Archive Index 2012 Cases 2011 Cases 2010 Cases 2009 Cases 2008 Cases 2007 Cases 2006 Cases 2005 Cases Trial Results

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\| Home \| About Us \| Attorneys \| Practice Areas \| News \| Contact Us	News > What's New \| HRRV in the Courtroom \| HRRV Newsletter \| HRRV in the Community \| Scheduled Presentations HRRV in the Courtroom Trial Results *345 3rd Street Housing Development Corp. v. Park Slope Garden Inc., Alisa Construction, Inc. and Nobre, Inc.* Supreme Court, Kings County Index Number 13382/2004, February 24, 2010 HRRV Successfully Defends Excavation/Underpinning Contractor at Trial In 345 3rd Street Housing Development Corp. v. Park Slope Garden Inc. (“Park Slope”), Alisa Construction, Inc. (“Alisa”) and Nobre, Inc. (“Nobre”), an adjacent property owner sued for damages sustained to its building during the course of excavation and underpinning work being performed by Nobre. HRRV was asked shortly before trial to substitute as counsel for Nobre. The case was tried before Judge Loren Bailey-Schiffman in the Supreme Court, Kings County. Nobre was hired by Park Slope, the owner of the property known as 347-351 3rd Street, to perform excavation and underpinning as part of the construction of a new six story building. Nobre’s work was overseen by the general contractor, Alisa. The plaintiff alleged that, in March of 2003, while Nobre was installing the underpinning piers beneath its building, it failed to follow the engineering plans. Specifically, the plaintiff claimed that Nobre failed to properly install dry pack between the building foundation and the underpinning piers, thereby causing the front corner of the plaintiff’s building to collapse. As a result, the brownstone bricks on the front façade allegedly cracked and came loose, floors separated from the east side wall, and cracks appeared on the walls throughout the building. Immediately after the residents felt the building move, the City of New York Department of Buildings (“DOB”) was called to the scene and the inspectors ordered the building to be evacuated. The DOB also issued a stop work order and two violations to Park Slope; one under City Code Section 27-201 for the failure to insert 2” dry pack joint between the foundation and new footing; and the second under City Code Section 27-1031 for the failure to protect the adjoining premises upon a finding that the adjoining premises was in danger of collapse. When the file was transferred to HRRV, the plaintiff’s settlement demand was $992,000, representing the cost of the repairs required to correct the damages sustained during the underpinning work and restoring the plaintiff’s building to its original condition. The restoration work included the shoring of the east wall, the replacement of windows and doors throughout the building, and the repair and painting of the plaster walls in each of the individual units and common hallways. The plaintiff also contended that its building continued to sustain damage, and that the repairs performed by Alisa immediately after the occurrence were insufficient and improper. Before the commencement of the trial, the plaintiff had taken a default judgment against Alisa and Park Slope. The defaults resulted from the success of the carriers for those defendants on motions for summary judgment in which it was determined that those insurers did not have the obligation to defend or indemnify those entities. Thus, Nobre was the only defendant present during the liability phase of the trial. Upon receipt of the file, HRRV immediately undertook an investigation into the status of the plaintiff’s building and ascertained that that the plaintiff had a history of failing to file the necessary inspection reports with the DOB, that it had secured a mortgage on the property subsequent to the date of loss (the mortgage appraisal exceeded the amount plaintiff was claiming), and filed for assistance with the NYC Department of Housing Preservation and Development, Article 8A Loan Program, to secure funding for the replacement of the windows in the building. We also determined that, following the incident, Park Slope’s engineer filed documents with the DOB representing that repairs had been made to the plaintiff’s building, and that the underpinning process had been completed. Thus, we subpoenaed these records and introduced them at the trial to establish that the repairs and completed underpinning work had been approved by the DOB. During the liability phase of the trial, plaintiff’s counsel attempted to introduce testimony form the building inspectors relating to the building code violations issued to Park Slope and Alisa. We successfully prevented counsel from offering into evidence the violation issued to Alisa for the failure to properly protect the adjacent property during construction. We asserted that, since the violation was not issued to Nobre, its prejudicial value outweighed its introduction into evidence. However, the court permitted counsel to introduce the DOB violation for the failure to follow the plans and install the 2” dry pack. Plaintiff’s counsel also attempted to introduce a DVD containing video footage taken by a building resident that purportedly showed the progress of the work being performed on the adjacent property from the demolition of the existing building up until the date of the alleged occurrence. Counsel served the DVD on the eve of the second of four adjourned dates for jury selection. Upon receipt of the DVD we immediately filed a motion to preclude its introduction into evidence due to the late service and the fact that video did not include footage of the entire demolition and construction process. Due to the delay between the date of service and the commencement of the trial, the trial judge allowed counsel to lay a foundation to introduce the video as evidence. However, during the voir dire of the building resident it was disclosed that DVD was only a copy of one video tape, and the witness admitted to filming using two video tapes. Rather than preclude the use of the DVD, the judge delayed the trial and directed counsel to serve our office with both videos, and to give us time to prepare for the cross-examination of the witness. As it turns out, the witness had taken five (5) video tapes, containing 10 hours of footage depicting the demolition and excavation work performed up until the date of the loss, and footage of the witnesses apartment after the date in question. When we returned to court, we renewed our objection to the introduction of the DVD into evidence and, given the potential prejudice facing Nobre, the court granted the application. When it came time to combat the plaintiff’s claims, we laid the foundation for Nobre’s defense by offering into evidence the contract between Alisa and Park Slope, and the subpoenaed records from other non-party contractors such as the soil boring contractor, the demolition contractor, and the contractor who installed piles immediately adjacent to the plaintiff’s property. Along with the contract that laid out Alisa’s obligations on the job site, we also introduced testimony from the owner of Nobre to establish that Alisa was in control of the job site, that it controlled when and where Nobre performed its work, and that, if the plaintiff’s building had been compromised in any way, it was due to the four month delay caused by Alisa’s failure to call the client immediately back to the site to complete the excavation and underpinning work. We also introduced testimony from the owner of Nobre that the plaintiff’s building was actually supported by wooden timber piles, some of which had deteriorated. This testimony opened the door for the expert engineer to inform the jury that, since there were timber piles under the plaintiff’s building, the underpinning work being performed by Nobre was not required, and, even if it was done improperly, it had no effect on the plaintiff’s building since the timber piles, even if somewhat deteriorated, were sufficient to support the building. The expert was also able to use the soil boring engineer’s records subpoenaed by our office to inform the jury that the results of the soil boring tests confirmed that both Alisa and Park Slope should have known that the adjacent building was support by timber piles, which meant that the plaintiff’s building did not require underpinning. The expert then explained to the jury in great detail, using the photographs he took during his inspection of the building, that the cause of the sloping of floors toward the middle of the building, as testified to by the plaintiff’s witnesses, was due to the deterioration of the center floor joist, and not any settlement on the part of the east wall. At the close of the liability phase of the trial, the jury determined that Nobre was not negligent in the performance of its work and rendered a defense verdict in Nobre’s favor. Gail L. Ritzert represented Nobre at the trial. Prior results do not guarantee a similar outcome	Archive Index 2012 Cases 2011 Cases 2010 Cases 2009 Cases 2008 Cases 2007 Cases 2006 Cases 2005 Cases Trial Results

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