Brooklyn Bridge Park Lawsuit

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INDEX NO. 453138/2015

FILED: NEW YORK COUNTY CLERK 11/27/2015 02:43 PM  NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 11/27/2015

SUPREME COURT OF THE STATE OF NEV/ YORK COUNTY OF NEW YORK

BROOKLYN BRIDGE PARK CORPORATION

x Index No

Plaintiff

SUMMONS

V

MICHAEL VAN VALKENBURGH ASSOCIATESO

LANDSCAPE ARCHITECTS P.C. HNTB CORPORATION HNTB NE\ry YORK ENGINEERING AND ARCHITECTURE P.C.

Date filed

Defendants. X

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

 

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

 

  SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------- x BROOKLYN BRIDGE PARK CORPORATION, Plaintiff, v.

VERIFIED COMPLAINT

Index No. _____________/2015 Filed:________________, 2015

MICHAEL VAN VALKENBURGH ASSOCIATES, LANDSCAPE ARCHITECTS, P.C., HNTB CORPORATION, HNTB NEW YORK ENGINEERING AND 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: 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 S tructures at Pier 5 of the Park.

 

  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 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. parameters. As a result of MVVA’s and HNTB’s 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 Brooklyn’s East River shoreline. BBP’s 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. -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, B Brooklyn, rooklyn, 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.

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  8.  laws

of

the

State

Defendant HNTB Corp. is a corporation organized and existing under the 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 recre recreation ation space. Pier 5 was converted to a playing field. BBP decided that Park users users would benefit from 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 construction of overhead lighting 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, design,

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  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 MVVA’s skill, expertise, and knowledge as a licensed architect. Implied in the Contract was MVVA’s 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 HNTB’s skill,

expertise, and knowledge as a licensed licensed engineer. Implied in the Subcontract was HNTB’s 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 Uppe r 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. 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 h our or more. 17. 

HNTB submitted its design proposal and final designs to both MVVA and

18. 

BBP reasonably relied upon HNTB’s designs and actions.

BBP.

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  19. 

HNTB understood that BBP would rely on its designs and actions.

20. 

BBP accepted HNTB’s design proposal.

21. 

General design criteria for steel and fabric components of the Shade Sails

are spelled out on HNTB’s drawing SH1, “Structural Notes.” The drawing explicitly calls ffor or 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 speeds along coastal New New York City of  between 100 and 110 miles per hour. 22. 

The 100 mile per hour load requirement is essentially restated in the City’s

Building Code. New York City Administrative 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 (43.8 m/s0. This wind speed is based based on local wind climate with annual  probability 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 con nection 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.

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  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 HNTB’s design of the Shade Sails. Specifically, Arup concluded that tthe he tie rods, the light  poles, base plate and reinforced concrete con crete 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 Arup’s 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 HNTB’s

Retrofit Design. The final version of the Retrofit Design was approved on Apri Aprill 15, 2013. 32. 

Construction and installation of the Retrofit Design Shade Sails was

completed on July 26, 2013. 33. 

BBP’s 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 incurred by BBP, including the diversion of its staff to

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  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 S hade 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, MVVA’s design was also required to comply

with BBP’s Design Requirements. 37. 

MVVA breached the Contract by failing to exercise due care, and

 breached the terms and conditions of the Contract Con tract 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 MVVA’s 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.

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  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. S tructures. 41. 

As a direct result of MVVA’s 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. Su bcontract. 43. 

BBP was an intended beneficiary of the Subcontract.

44. 

BBP reasonably relied upon HNTB’s 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. S tructures. 46. 

As a direct result of HNTB’s breaches of the Subcontract, the City has

 been damaged in an amount to be determined at trial, but not less than $1,294,931.

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  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. S tructures. 49. 

As a direct result of HNTB’s 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 HNTB’s 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 defend ants 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;

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  (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;

Dated:

(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.

New York, New York  November 25, 2015 ZACHARY W. 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 (212) 356-2033 By:

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/s/ Alan H. Kleinman Alan H. Kleinman Assistant Corporation Counsel

 

VERIT''ICATION STATE OF NEW

coLNTY

OF

YORK )

KINGS

)

,

ss.,

Patricia Kirshner, being cluty sworn, says that she is

Vice Prcsidcnt, Capital

planning & Consuuction of BROOKLYN BRIDGE PARK CORPORATION; thatBROOKLYN

BRIDOE PARK COIìfOILATION 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 plaintíff and/or statemonts mnde to hcr by

otti'*'1ro' tt#fïJftlT¡*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-

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