Upload
dnainfonewyork
View
218
Download
0
Embed Size (px)
Citation preview
7/23/2019 Brooklyn Bridge Park Lawsuit
1/13
SUPREME
COURT OF
THE STATE
OF
NEV/
YORK
COUNTY
OF NEW
YORK
BROOKLYN
BRIDGE
PARK
CORPORATION
Plaintiff
x
Index
No
V
SUMMONS
MICHAEL
VAN VALKENBURGH
ASSOCIATESO
LANDSCAPE
ARCHITECTS
P.C.
HNTB
CORPORATION
HNTB
NE\ry
YORK
ENGINEERING
AND
ARCHITECTURE
P.C.
Defendants.
Date filed
YOU ARE
HEREBY SUMMONED
and
required
to
serve upon
Plaintiffls
attorney an
answer
to
the
Complaint
in this
action
within
twenty days
after the service
of
this
summons
exclusive
of
the day
of service
or
within thirty
days
after service
is complete
if
this
summons
is not
personally
delivered
to
you
within
the
State
of New
York.
In
case
of
your
failure
to
answer
judgment
will
be
taken
against
you
by default
for
the
relief demanded
in
the
complaint.
[This
space is
intentionatty
left blank.J
X
ILED: NEW YORK COUNTY CLERK 11/27/2015 02:43 PM INDEX NO. 453138/
YSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/27/
7/23/2019 Brooklyn Bridge Park Lawsuit
2/13
Plaintiffls
designation
of venue accords
with CPLR 503(a)
in
that
one
or more of
the
parties
reside
in New York County.
Dated:
New York, New
York
November
27,2015
ZACHARY V.
CARTER
Corporation
Counsel
of
the
City
of
New
York
Attorney
for
Plaintiff
Brooklyn Bridge
Park Corporation
100
Church
Street,
Rm.
20-100
New York, New
York 10007
(2rz)
356
2033
By:
Alan
H
Assi
stant
Corporation Counsel
To:
Michael Van Valkenburgh
Associates, Landscape
Architects,
P.C.
l6
Court
Street, I lth
Floor
Brooklyn,
New
York
ll24l
HNTB
Corp.
350 5th
Ave., 57th Floor
New
York, NY 101l8
HNTB
New York
Engineering and
Architecture,
P.C.
5 Penn Plaza,6th
Floor
New
York,
New
York
10001
2
7/23/2019 Brooklyn Bridge Park Lawsuit
3/13
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK----------------------------------------------------------------------- x
VERIFIED COMPLAINT
Index No. _____________/2015
Filed:________________, 2015
BROOKLYN BRIDGE PARK CORPORATION,
Plaintiff,
v.
MICHAEL VAN VALKENBURGH ASSOCIATES,LANDSCAPE ARCHITECTS, P.C., HNTBCORPORATION, HNTB NEW YORK ENGINEERINGAND ARCHITECTURE, P.C.
Defendants.
----------------------------------------------------------------------- x
Plaintiff BROOKLYN BRIDGE PARK CORPORATION (BBP) by its attorney
Zachary W. Carter, Corporation Counsel of the City of New York, for its complaint against
defendants Michael Van Valkenburgh Associates, Landscape Architects, P.C. (MVVA), and
HNTB Corporation and HNTB New York Engineering and Architecture, P.C. (collectively
HNTB), respectfully alleges upon personal knowledge as to itself and upon information and
belief as to all other matters, as follows:
PRELIMINARY STATEMENT
1. This action is brought to recover damages suffered by BBP as a result of
defective design and construction supervision by MVVA and HNTB in connection with the
construction of light poles and shade sail structures (together, the Shade Sail Structures) at Pier
5 of Brooklyn Bridge Park (the Park).
2. BBP contracted with MVVA to design the Park, including the
construction of the Shade Sail Structures at Pier 5 of the Park.
7/23/2019 Brooklyn Bridge Park Lawsuit
4/13
- 2 -
3. MVVA in turn subcontracted with HNTB to design the Shade Sail
Structures and perform related services.
4. The defendants agreed to produce a design that was capable of
withstanding foreseeable wind conditions of 100 miles per hour or more. But the design proved
incapable of withstanding even much lower winds. As a result of the defective design, the Shade
Sail Structures suffered widespread failure under wind conditions far less taxing than those set
forth in the design parameters. As a result of MVVAs and HNTBs contractual and professional
failures, the Shade Sail Structures had to be substantially redesigned and rebuilt, at great cost to
BBP. This action seeks to recover these costs.
THE PARTIES
5. Plaintiff BBP is a not-for-profit corporation duly organized and existing
under the laws of the State of New York, with its principal place of business at 334 Furman
Street, Brooklyn, New York 11201.
6. BBP is responsible for the planning, construction, maintenance and
operation of Brooklyn Bridge Park, an 85-acre sustainable waterfront park stretching 1.3 miles
along Brooklyns East River shoreline. BBPs mission is to create and maintain a world-class
park that is a recreational, environmental and cultural destination enjoyed by the residents of, and
visitors to, New York City. BBP operates under a mandate to be financially self-sustaining.
7. Defendant Michael Van Valkenburgh Associates, Landscape Architects,
P.C. is a limited liability partnership organized and existing under the laws of the State of New
York, with an office at 16 Court Street, 11th Floor, Brooklyn, New York 11241. MVVA is a
licensed architectural firm holding itself out to the general public as being possessed of the skill,
expertise, and knowledge of that profession.
7/23/2019 Brooklyn Bridge Park Lawsuit
5/13
- 3 -
8. Defendant HNTB Corp. is a corporation organized and existing under the
laws of the State of Delaware, with an office at 350 5th Ave., 57th Floor
New York, NY 10118. HNTB is a engineering firm holding itself out to the general public as
being possessed of the skill, expertise, and knowledge of that profession.
9. Defendant HNTB New York Engineering and Architecture, P.C. is a
professional corporation organized and existing under the laws of the State of New York, with an
office at 5 Penn Plaza, 6th Floor, New York, New York 10001. HNTB is an engineering firm
holding itself out to the general public as being possessed of the skill, expertise, and knowledge
of that profession.
FACTS
THE CONTRACT AND SUBCONTRACT
10.
BBP has been converting abandoned piers along the East River to provide
recreation facilities for neighborhoods that previously had little outdoor recreation space. Pier 5
was converted to a playing field. BBP decided that Park users would benefit from shade on the
playing field.
11. BBP had an ongoing contract with MVVA, dated February 3, 2004 (the
Contract), which provided design, engineering and construction administration services for the
Park. BBP asked MVVA to design and oversee the construction of overhead lighting and
subsequently asked it to modify the design to provide shade on the Pier 5 playing field. Under
the Fifth Amendment to the contract, MVVA and its subcontractors were to provide not only
design but also construction administration services.
12. MVVA in turn entered into a subcontract with HNTB on July 11, 2011
(the Subcontract). Pursuant to the Subcontract, HNTB was responsible for the initial design,
7/23/2019 Brooklyn Bridge Park Lawsuit
6/13
- 4 -
the incorporation of comments during a design development period, and construction
administration services that included attending site meetings, review of contractor submittals,
and responding to contractor Requests for Information.
13. In entering into the Contract and its amendments with MVVA, BBP relied
on MVVAs skill, expertise, and knowledge as a licensed architect. Implied in the Contract was
MVVAs obligation to, at a minimum, perform its duties with the reasonable skill and care
expected of the architectural profession, and in accordance with generally accepted design
practices.
14.
In approving the Subcontract with MVVA, BBP relied on HNTBs skill,
expertise, and knowledge as a licensed engineer. Implied in the Subcontract was HNTBs
obligation to, at a minimum, perform its duties with the reasonable skill and care expected of the
engineering profession, and in accordance with generally accepted design practices.
PARTIES NEGOTIATION OF THE SHADE SAIL DESIGN
15. BBP told both MVVA and HNTB that it would like to provide some shade
for the playing fields on Pier 5, but that it had a limited budget to do so. The playing field was
exposed to winds coming off the Upper Harbor and East River.
16.
BBP had repeated meetings and communications with MVVA and HNTB
concerning the design and construction of the Shade Sail Structures. At these meetings, BBP,
MVVA and HNTB repeatedly discussed the need to produce a design that was capable of
withstanding foreseeable wind conditions of 100 miles per hour or more.
17. HNTB submitted its design proposal and final designs to both MVVA and
BBP.
18. BBP reasonably relied upon HNTBs designs and actions.
7/23/2019 Brooklyn Bridge Park Lawsuit
7/13
- 5 -
19. HNTB understood that BBP would rely on its designs and actions.
20. BBP accepted HNTBs design proposal.
21. General design criteria for steel and fabric components of the Shade Sails
are spelled out on HNTBs drawing SH1, Structural Notes. The drawing explicitly calls for a
design wind speed of 100 miles per hour. The drawing references ASCE 7-05, Minimum
Design Loads for Buildings and Other Structures for the calculation of wind and other
environmental loads. ACSE 7-05 lists basic wind speeds along coastal New York City of
between 100 and 110 miles per hour.
22.
The 100 mile per hour load requirement is essentially restated in the Citys
Building Code. New York City Administrative Code, Title 28, 1609.3 states:
The basic wind speed for New York City which is measured at 33 feet(10.058 mm) above ground as 3-second gust speed is 98 mph (43.8m/s0. This wind speed is based on local wind climate with annualprobability of 0.02 (50-year mean recurrence interval).
MALFUNCTION OF THE SHADE SAILS
23. Following installation of the Shade Sails, the Park area containing the
Shade Sails was opened to the public on or about December 13, 2012.
24. On December 21, 2012, less than a month after the Shade Sails were
installed, wind gusts of less than 75 miles per hour caused extensive damage to light poles and
shade elements of the Shade Sail Structures along the north side of Pier 5. The damage included,
but was not limited to, sheared connection bolts, broken fixtures, bent and snapped support rods,
broken fixture arms and torn shades.
25. The damage to the Shade Sail Structures endangered the public, which
was threatened by falling components of the Shade Sail Structures.
7/23/2019 Brooklyn Bridge Park Lawsuit
8/13
- 6 -
26. As a result of the damage, BBP had to cordon off Pier 5 from the public
and remove dangling components on an emergency basis.
PEER REVIEW AND RETROFIT OF THE SHADE SAILS DESIGN
27. Following the malfunction of the Shade Sails, BBP engaged Ove Arup &
Partners P.C. (Arup) to conduct a Structural Peer Review of the Shade Sails design.
28. Arup finalized its Structural Peer Review and issued its Peer Review
Report on November 19, 2013. In the Report, Arup concluded that there were fundamental flaws
in HNTBs design of the Shade Sails. Specifically, Arup concluded that the tie rods, the light
poles, base plate and reinforced concrete foundations were each inadequate as a matter of design
to withstand 100 mile per hour winds.
29. To date, HNTB has never provided any analysis to dispute Arups Peer
Report or to otherwise show that its initial design was proper.
30. However, when asked to fix the damage to the Shade Sails, HNTB no
longer stood behind its own original design and instead submitted on March 7, 2013 a
significantly changed design (the Retrofit Design).
31. BBP, HNTB and Arup met multiple times to review and revise HNTBs
Retrofit Design. The final version of the Retrofit Design was approved on April 15, 2013.
32. Construction and installation of the Retrofit Design Shade Sails was
completed on July 26, 2013.
33. BBPs damages include the costs of removal of the failed Shade Sail
Structure and the redesign and installation of a new structure that now meets the initial
specification that the structure be capable of withstanding wind conditions of 100 miles per hour
or more. It also includes additional losses incurred by BBP, including the diversion of its staff to
7/23/2019 Brooklyn Bridge Park Lawsuit
9/13
- 7 -
oversee the additional work created and the resulting loss of its ability to afford the use of the
playing field at Pier 5 to the public.
FIRST CAUSE OF ACTION (AGAINST MVVA)
(Breach of Contract)
34. As described above, pursuant to the Contract, MVVA was responsible for
the feasibility analysis, design, and construction support services for the Shade Sail Structures.
35. MVVA was required to perform the Contract with the skill and care
expected of the landscape architectural profession, and in accordance with generally accepted
design principles.
36. Pursuant to the contract, MVVAs design was also required to comply
with BBPs Design Requirements.
37. MVVA breached the Contract by failing to exercise due care, and
breached the terms and conditions of the Contract by reason of its deficient design, as described
above, as well as by failing to ensure that the Shade Sail Structures were constructed in
accordance with the construction documents, all of which resulted in defects in the Shade Sail
Structures requiring their removal and replacement.
38. As a direct result of MVVAs aforesaid breaches of the contract, BBP has
been damaged in an amount to be determined at trial, but not less than $1,294,931.
SECOND CAUSE OF ACTION (AGAINST MVVA)
(Professional Malpractice)
39. By undertaking the design and construction supervision of the Shade Sail
Structures, MVVA assumed a duty to BBP to perform the work in accordance with the
professional standards expected of a licensed landscape architect.
7/23/2019 Brooklyn Bridge Park Lawsuit
10/13
- 8 -
40. MVVA was careless, failed to use reasonable and customary care,
departed from accepted practice, and failed to perform services in accordance with professional
standards, and therefore committed professional malpractice in its design and in its construction
supervision of the Shade Sail Structures.
41. As a direct result of MVVAs aforesaid professional malpractice, BBP has
been damaged in an amount to be determined at trial, but not less than $1,294,931.
THIRD CAUSE OF ACTION (AGAINST HNTB)
(Breach of Third Party Contract)
42. Pursuant to its Subcontract, HNTB was responsible for the design and
some construction administration services for the Shade Sail Structures and was required to
comply with all applicable requirements of the Subcontract.
43. BBP was an intended beneficiary of the Subcontract.
44. BBP reasonably relied upon HNTBs designs and actions.
45. HNTB breached the Subcontract by failing to exercise due care in its
performance, and breached its terms and conditions by reason of its deficient design, and by
failing to ensure during construction that the Shade Sail Structures were constructed according to
the design plans and that any modifications in the plans did not compromise the structural
integrity of the Shade Sail Structures.
46. As a direct result of HNTBs breaches of the Subcontract, the City has
been damaged in an amount to be determined at trial, but not less than $1,294,931.
7/23/2019 Brooklyn Bridge Park Lawsuit
11/13
- 9 -
FOURTH CAUSE OF ACTION (AGAINST HNTB)
(Professional Malpractice)
47. By undertaking the design and construction supervision of the Shade Sail
Structures, HNTB assumed a duty to BBP to perform the work in accordance with the
professional standards expected of a licensed engineer.
48.
HNTB was careless, failed to use reasonable and customary care, departed
from accepted practice, and failed to perform services in accordance with professional standards,
and therefore committed professional malpractice in its design and in construction supervision
services of the Shade Sail Structures.
49.
As a direct result of HNTBs professional malpractice, BBP has been
damaged in an amount to be determined at trial, but not less than $1,294,931.
FIFTH CAUSE OF ACTION (AGAINST HNTB)
(Negligent Misrepresentation)
50. HNTB negligently misrepresented to BBP that its design would be able to
withstand winds up to 100 miles per hour.
51.
As a direct result of HNTBs misrepresentations, BBP has been damaged in
an amount to be determined at trial, but not less than $1,294,931.
WHEREFORE, plaintiff BBP demands judgment against defendants as follows:
(a) On the First Cause of Action, against MVVA, in an amount to be
determined at trial, but not less than $1,294,931, with pre-judgment interest;
(b) On the Second Cause of Action, against MVVA, in an amount to be
determined at trial, but not less than $1,294,931, with pre-judgment interest;
(c) On the Third Cause of Action, against HNTB, in an amount to be
determined at trial, but not less than $1,294,931, with pre-judgment interest;
7/23/2019 Brooklyn Bridge Park Lawsuit
12/13
- 10 -
(d) On the Fourth Cause of Action, against HNTB, in an amount to be
determined at trial, but not less than $1,294,931, with pre-judgment interest;
(e) On the Fifth Cause of Action, against HNTB, in an amount to be
determined at trial, but not less than $1,294,931, with pre-judgment interest;
(f) Together with the costs and disbursements of this action; and
(g) For such other and further relief as the Court deems just and proper.
Dated: New York, New YorkNovember 25, 2015
ZACHARY W. CARTERCorporation Counsel of theCity of New YorkAttorney for Plaintiff Brooklyn Bridge Park
Corporation100 Church Street, Rm. 20-100New York, New York 10007(212) 356-2033
By: /s/ Alan H. Kleinman
Alan H. KleinmanAssistant Corporation Counsel
7/23/2019 Brooklyn Bridge Park Lawsuit
13/13
VERIT''ICATION
STATE OF
NEW
YORK
)
,
ss.,
coLNTY
OF
KINGS
)
Patricia Kirshner,
being
cluty sworn,
says
that she
is
Vice
Prcsidcnt,
Capital
planning
& Consuuction
of
BROOKLYN
BRIDGE
PARK
CORPORATION;
thatBROOKLYN
BRIDOE
PARK
COIfOILATION
is plaintiff
in
the
within
action;
that
the allegations
in the
Complaint
as
to
plaintiff
are
truc
io
her knowledge;
that
the
matters
allcged
therein
upon
information
and
belief,
she
believss
to
be
true;
ancl
thnt
the basis
of
hcr
knowleclge
is
the books
and records
of
the
plaintff
and/or
statemonts
mnde
to
hcr
by otti'*'1ro' tt#fJftlT*u r
lrtiu
verification
is
nor made by
BROOKLYN
BRIDOE
PARK
CORPOR A,TTON
bocause
it
is
a
not'
for-
profit
c orp
oration.
Swom
to before mc
this
zftav
of
November,
20
I
5'
NOTARYPUBLIC
::$m*u'i
-
l1-