CA 19-00850 Town of West Seneca - v. - Louis Design Solutions Architecture, LLC.

FILED: APPELLATE DIVISION - 4TH DEPT 08/15/2019 08:54 AM CA 19-00850
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/15/2019
New York Supreme Court

Appellate Division—Fourth Department
Docket No.:
CA 18-02366
THE TOWN OF WEST SENECA, NEW YORK, CA 19-00833
CA 19-00850
Plaintiff-Appellant,
– against –
LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

(f/k/a Louis Design Group),
Defendant-Respondent.
CONSOLIDATED RECORD ON APPEAL
ERNSTROM & DRESTE, LLP

John W. Dreste, Esq.
Matthew D. Holmes, Esq.
Attorneys for Plaintiff-Appellant
925 Clinton Square
Rochester, New York 14604
(585) 473-3100
jdreste@ed-llp.com
mholmes@ed-llp.com
BURGIO, CURVIN & BANKER

Hilary C. Banker, Esq.
Attorneys for Defendant-Respondent
496 Main Street
Buffalo, New York 14202
(716) 854-1744
hilary@burgiocurvin.com
Erie County Clerk’s Index No. 815187/2017

i
STATE OF NEW YORK

SUPREME COURT COUNTY OF ERIE
_________________________________________
THE TOWN OF WEST SENECA, NEW YORK,
Plaintiff
-against-
Index No. 815187/2017

(f/k/a Louis Design Group)
Defendant
_________________________________________
STATEMENT PURSUANT TO CPLR 5531
1. The action (the “Action”) is identified by Index Number 815187/2017.
2. The full names of the original parties to the Action are Plaintiff The Town
of West Seneca and Defendant Louis Design Solutions Architecture, LLC (f/k/a Louis
Design Group) (“Louis Design”).
3. On or about September 30, 2017, Plaintiff, the Town of West Seneca, duly
served on Defendant, Louis Design, a Verified Notice of Claim Pursuant to CPLR 241-d.
Copies of the Verified Claim Pursuant to CPLR 241-d and the accompanying Affidavit of
Service were filed in the Erie County Clerk’s Office on October 26, 2017.
4. The Action was commenced in the New York State Supreme Court, Erie
County.
5. This Action was commenced on July 12, 2018 when the Plaintiff filed a
Summons and Complaint with the Erie County Clerk’s Office.

ii
6. The nature of the action is for a money judgment for property damage
suffered by Plaintiff as the result of, among other things, the improper design of a building
by Defendant.
7. This appeal is from a series of Orders of the Hon. Joseph R. Glowina,
J.S.C., one of which was entered in the Erie County Clerk’s Office on December 3, 2018,
and two of which were entered in the Erie County Clerk’s Office on April 30, 2019.
8. This appeal is on a full printed record.

iii
TABLE OF CONTENTS
Page
Statement Pursuant to CPLR 5531 ......................................................................................... i
Notice of Appeal, dated May 7, 2019, with Affidavit of Service ........................................... 1
Order and Judgment of the Honorable Joseph R. Glowina, J.S.C.,
dated April 22, 2019, Appealed From, with Notice of Entry ............................................ 4
Notice of Appeal, dated May 3, 2019, with Affidavit of Service ........................................... 8
Order of the Honorable Joseph R. Glowina, J.S.C., dated April 22, 2019,
Appealed From, with Notice of Entry............................................................................... 11
Notice of Appeal, dated December 20, 2018, with Affidavit of Service ................................ 15
Order and Judgment by the Honorable Joseph R. Glownia, J.S.C,
dated December 3, 2018, Appealed From, with Notice of Entry...................................... 18
Notice of Motion to Dismiss, dated September 4, 2018 ......................................................... 21
Attorney Affirmation of Hilary C. Banker, Esq., in Support of Motion to
Dismiss, dated September 4, 2018 .................................................................................... 23
Exhibit A - Summons and Verified Complaint, dated July 11, 2018 .............................. 28
Exhibit A - Nussbaumer & Clarke, Inc. Proposal Letter .................................... 38
Exhibit B - Nussbaumer & Clarke, Inc. Supplemental Proposal
Letter ................................................................................................ 42
Exhibit C - June, 1999 Construction Drawings .................................................. 44
Exhibit D - Building Science Services, LLC’s April 28, 2017 Review
of Conditions and Report of Findings .............................................. 70
Exhibit E - West Seneca’s Verified Notice of Claim Pursuant to
CPLR 214-d (incorrect version)....................................................... 86
Exhibit B - Affidavit of Brian Louis, R.A., dated September 4, 2018 ........................... 92
Affidavit of Matthew D. Holmes, Esq. in Opposition to Motion to Dismiss,
dated September 27, 2018 ................................................................................................. 93
Exhibit A - Verified Notice of Claim Pursuant to CPLR 214-d (correct version) .......... 95
Exhibit B - Summons and Verified Complaint (reproduced herein at
pp 28-90) ...................................................................................................... 98
iv
Page
Affidavit of John Fenz, Esq. in Opposition to Motion to Dismiss, dated
September 27, 2018 .......................................................................................................... 99
Exhibit A - Copies of Selected Documents for Burchfield Center, signed
and sealed by Louis Design ......................................................................... 104
Exhibit B - Building Science Services, LLC’s April 28, 2017 Review of
Conditions and Report of Findings (reproduced herein at pp 70-85) .......... 115
Exhibit 1a - Drawing............................................................................................ 116
Exhibit 1b - Drawing............................................................................................ 117
Exhibit 1c - Photograph ....................................................................................... 118
Exhibit 1d - Photograph ....................................................................................... 119
Exhibit 1e - Drawing............................................................................................ 120
Exhibit 1f - Drawing............................................................................................ 121
Exhibit 2a - Photograph ....................................................................................... 122
Exhibit 2b - Photograph ....................................................................................... 123
Order to Show Cause, dated March 19, 2019 ......................................................................... 132
Affidavit of Matthew D. Holmes, Esq., in Support of Motion to Settle Record
on Appeal, dated March 13, 2019 ..................................................................................... 134
Exhibit 1 - Order and Judgment, dated December 3, 2018 (reproduced
herein at pp 18-20) ........................................................................................ 138
Exhibit 2 - Notice of Appeal, dated December 20, 2018 (reproduced
herein at pp 15-17) ........................................................................................ 138
Exhibit 3 - Record on Appeal (proposed) ........................................................................ 139
v
Page
Exhibit 4 - Stipulation Settling Transcript in Lieu of Certification ................................. 331
Exhibit 5 - Email Communication between Counsel ...................................................... 332
Exhibit 6 - Notice of Settlement of Transcript, dated February 7, 2019 ......................... 335
Exhibit 7 - Correspondence from Hilary Banker, Esq. to Matthew D.
Holmes, Esq., dated February 15, 2019 ........................................................ 336
Exhibit 8 - Correspondence from Matthew D. Holmes, Esq. to Hilary
Banker, Esq., dated February 27, 2019 ......................................................... 337
Exhibit 9 - Correspondence from Hilary Banker, Esq. to Matthew D.
Holmes, Esq., dated March 4, 2019 .............................................................. 338
Reply Affidavit of Hilary C. Banker, Esq., dated April 8, 2019 ............................................. 339
Exhibit A - Verified Complaint to Louis Design Solutions Architecture, LLC,
dated July 11, 2018 (reproduced herein a pp 30-37).................................... 344
Exhibit B - Verified Complaint to Nussbaumer & Clark, Inc., dated July 11, 2018 ...... 345
Exhibit C - Verified Complaint to Kideney Architects, P.c., dated July 11, 2018 .......... 353
Exhibit D - Email communication between Counsel ...................................................... 361
Exhibit E - Correspondence from Hilary Banker, Esq. to Court, dated November
27, 2018........................................................................................................ 365
Exhibit F - Correspondence from Matthew D. Holmes, Esq. to Court, dated
November 29, 2018 ...................................................................................... 370
Reply Affidavit of Matthew D. Holmes in Support of Motion to Settle the Record on
Appeal, dated April 11, 2019 ............................................................................................ 371
Certification Pursuant to CPLR 2105 ..................................................................................... 374
1
NOTICE OF APPEAL, DATED MAY 7, 2019, WITH AFFIDAVIT OF SERVICE [1-3]
.
CA 19-00850
815187/2017
FILED: APPELLATE DIVISION - 4TH DEPT 05/08/2019 09:14 INDEX
AM NO.
NYSCEF
NYSCEF DOC.
DOC. NO.
N( 175 RECEIVED
RECEIVED NYSCEF:
NYSCÈF: 2019
05/08/2019
05/07,
STATE OF NEW YORK

Plaintiff
-against- NOTICE OF APPEAL

Index No. 815187/2017

Defendant
PLEASE TAKE NOTICE that the Plaintiff The Town of West Seneca, New
York ("West Seneca"), hereby appeals to the Appellate Division of the New York State
Supreme Court in and for the Fourth Department, each and every part of the April 22, 2019
Order & Judgment of the Honorable Joseph R. Glownia, J.S.C., which is attached hereto as
Exhibit A, and which revises, nunc pro tune, a prior Order & Judgmerit dated December 3,
2018 by the Honorable Jospeh R. Glownia, J.S.C. reñdered at a Special Term of the
Supreme Court held in and for the County of Erie at the Erie County Courthouse, located
at 92 Franklin Street, Buffalo, New York 14202, on November 16, 2018.
925 CLINTONSQUARE .
ROCHESTER,NY 14604
1 of 2
2
INDEX NO. 815187/2017
NYSCEF DOC . NC 75 RECEIVED NYSCEF: 05/07/ 2019
DATED: May 2019
Rochester, New York
ERNSTRO DRESTE, LLP

Attorneys for Plainttff-Appellant
925 Clinton Square

Phone: (585) 473-3100
TO: Hilary C. Banker, Esq.
Burgio, Curvin & Banker

Attorneys for Defendant
496 Main Street

Phone: (716) 854-1744
925 CLINTONSQUARE
ROCHESTER,NY 14804
2 of 2
3
INDEX NO. 815187/2017

(FILED: ERT 1: COUNTY CLERK 05/07 /2019 10 Ï 44 AM|
NYSCEF DOC. N( 77 RECEIVED NYSCEF: 05/07 2019
STATE OF NEW YORK

SUPREME COURT COUNTY OFJRI.E
THE TOWN OF WEST SENECA, NEW YORK, AFFIDAVIT OF

SERVICE VIA
Plaintiff, ECF SYSTEM AND
1ST
CLASS MAIL
-against-
Index No. 815187/2017

(f/k/a Louis Design Group
Defendant.
STATE OF NEW YORK )

) SS:
COUNTY OF MONROE )
LAURA E DOBBS, being duly sworn, deposes and says that she resides in the Town of
Greece; that she is over the age of eighteen years of age; that she is a Legal Secretary with
the law firm of Ernstrom & Dreste, LLP, attorneys for Plaintiff, Town of West Seneca; that
7th
on the day Of May, 2019 before 6:00 p.m., deponent served a true copy of NOTICE OF
APPEAL via electronic filing with the New York State Courts Electronic Filing system
and by causing the same to be delivered to an official depository of the U.S. Postal Service
within the City of Rochester, County of Monroe, State of New York to:

496 Main Street
LAURA E lf)BBS
Sworn to before this
E,1w 7th
mp,y
2 day of May 19 MATTHEW D. HOLMES
Notary Public, State of New York
Qualified In Monroe County
No. 02HO6344304
R²o°c°s TER, N 04 Commiss|on Expires June 27, 20 20
Notary Public
1 of 1
4
ORDER OF THE HONORABLE JOSEPH R. GLAWINA, J.S.C., DATED APRIL 22, 2019,
APPEALED FROM, WITH NOTICE OF ENTRY [4-7]
: sERIE COUNTY CLERK INDEX NO. 815187/2017

[FILED 05/07/2019 10:29 AM|
NYSCEF DOC. NO 76 RECEIVED NYSCEF: 05/07/2019
|FILED: ERI E COUNTY CLERK 04 /22 /2019 03 : 40 INDEX NO. 815187/2t=17
NYSCEF DOC. NC 69 RECEIVED NYSCEF: 04/22/2019
At a Special Tenu of the Supreme Court,

held. in and. for the County of Erie, at the
Courthouse located in the City of Buffalo;
16*
New York, on the day of November,
2018.
PRESENT: HON. JOSEPH R. G_LOWNIA, J.S.C.

Justice Presiding
$TATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE
THE TOWN OF WEST SENECA, NEW YORK
Plaintiff
Index No. 81M87/2017
vs.
ORDER oc JUDGMENT

(f/lda Louis Design Group)
Defendant
Defendant, LOUIS DESIGN SOLUTIONS ARCnlTECTURE, LLC, by its attorneys,
BURGIO, CURVIN & BANKER,having moved this Court for an Order pursuant to CPER.R.
3211(a)(5) ci¼mins9g Plaintiff's Coitiplaint on the ground that the action was not commenced
within the applicabic statute of limitatices, and said motion having been opposed Plaintiff
by
TNE. TOWN OF WEST SENECA, NEW YORK, by its gttorneys, ERNSTROM &
DRESTE, LLP; and
NOW, upon the Notice of Motion of Dafcadañt LOUIS DESIGN SOLUTIÒNS
ARCNITECT.URE, LLC, dated September 4, 2018, the Afnrmation. of Hilary C.Banker,
1 of 3
5
INDEX NO. 815187/2017

[FILED : ERIE COUNTY CLERK_ 05/07/2019 10: 29 AM|
F ILED : ER: E COUNTY CLERK 0 4 /2 2 /2 019 03 : 4 0 INDEX NO, 815187/2017
PM|
NYSCEF DOC. NC, 69 RECEIVED NYSCEF: 04/22/2019
Esq., dated 5eptember 4, 2018, with attached Exhibits A and B, including the Affidavit of Brign.
Louis, R.A., swom to on Septërabtr 4, 2018, all submitted in suppurt of the aforegaid motion;
and
Opón the Affid gyit in Oppúsitipñ to motiøñ to dismiss of Matthew D. Holmes, Esq.,
swom to on September 27, 2018, with EXhibits 1. and 2 attached therete, and the Affidavit in
oppósition of John Fenz, Esq. swóth to.on Scptctnber 27, 2018, with Exhibits A and B attached
thereto, all snhmitted in opposition to the áferesaid motion; and
NOW, upon hearing BÚRGIO, CURVIN & 15ANKER, Hilary C. Baliker, Esq., of
counsel in support of the motion on behalf of D fdadant LOÚIS .DESIGN SOLOTIONS
ARCHITECTURE, LLC; upon hearing ERNSTRUM & DRESTE, LLP, Matthew D.
Holmes, Esq., of counsel in oppesitior: to the motion on behalf of Plaintiff THE TOWN OF
WEST SENECA, NEW YORk;
AND, after having due deliberation-upon the matters, it-is hereby
ADJUDGED AND DEUREED, that the, motion on behalf of Defepdard

ORDERED,
LODIS DE51GN SOLUTIONS ARCHITECTURE, LLC, is hereby gi anted in its entirety;
and it is faither
OttDERED, ADJUDGED AND DECREED, that upon fui·ther considërstion, pursuant
to CPLR §2Z19(a), the Court revites, suä spÞnte, itund pro tunc, its prior Order to state
hereby
the fèásohs for tlye dismissal of the Complaint which is failure to. coirecede the actiún within the
2 of 3
6
INDEX NO. 815187/2017

FILED : ERIE COUNTY CLERK 05/07/2019 10:29 AM|
g/ RECE;tWBgXN#§ÇEg'I5$67/ßj4/12019
NPIEJEDqC.glin COUNTY CLERK 04 /22 /2019 03 : 40 PM|
NYSCEF DOC. N< . 69 RECEIVED NYSCEF: 04/22/2·)19
applicable stattite of limitations. .
APR 2 2 2019
HON. O E II. GLOWNIA, J.S.C.
ENTER:
3 of 3
7
FILED: ERIE COUNTY CLERK 04/30/2019 02:04 PM INDEX NO. 815187/2017

STATE OF NEW YORK

Plaintiff
NOTICE OF E
Index No. 815187/
vs.

Defendant
PLEASE TAKE NOTICE that the within is a true copy of an Order & Judgme
the office of the Clerk of the County of Erie on April 22, 2019.
Dated: April 30, 2019
H ary C. nker, Esq.
496 Main Street
(716) 854-1744
1 of 4
8
NOTICE OF APPEAL, DATED MAY 3, 2019, WITH AFFIDAVIT OF SERVICE [8-10]
FILED: APPELLATE DIVISION - 4TH DEPT 05/06/2019 02:16 PM CA 19-00833

STATE OF NEW YORK

· Plaintiff
-against- NOTICE OF APPEAL

Index No. 815187/20 l7

Defendant
PLEASE TAKE NOTICE that the Plaintiff, The Town of West Seneca, New
Supreme Court in and for the Fourth Department, each and every part of the April22, 2019
Order entered by the Honorable Joseph R. Glownia, J.S.C., which Order .was rendered at a
Special Term of the Supreme Court held in and for the County of Erie at the Erie County
Courthouse, located at 92 Franklin Street, Buffalo, New York 14202, on April 17, 2019. A
copy ofthe April22, 2019 Order is attached hereto as Exhibit A.
ERNSTROM
926 CLINTON SQUARE

ROCHESTER, NV 14604
1 of 2
9
INDEX NO. 815187 2017

FILED: ER COUNTY CLERK
NYSCEF DOC. N 72 RECEIVED NYSCEF: 05/03 2019
DATED: May 3, 2019

Rochester, New York
By:
925 Clinton Square
Phone: (585) 473-3100
TO: Hilary C. Esq.

496 Main Street
Phone: (716) 854-1744
ERNSTROM
926 CLINTON SQUARE

ROCHESTER, NY 14604
2 of 2
10
9 04:22 p INDEX NO. 815187 2017

FILED: ER
NYSCEF DOC. N 74 RECEIVED NYSCEF: 05/03 2019
STATE OF NEW YORK


SERVICE VIA
. . .. Plaintiff, ECF SYSTEM AND
1ST CLASS MAIL
-against-
Index No. 815187/2017

Defendant.
STATE OF NEW YORK )

) SS:
COUNTY OF MONROE )
LAURA DOBBS, being duly sworn, deposes and says that she resides in the City of
Rochester; that she is over the age of eighteen years of age; that she is a Legal Secretary
with the law firm ofErnstrom & Dreste, LLP, attorneys for Plaintiff, Town of West
Seneca; that on the 3rd day of May, 2019, before 6:00p.m., deponentserved a true copy of
NOTICE OF APPEAL via electronic filing with the New York State Courts Electronic
Filing system and by causing the same to be delivered to an official depository of the U.S.
Postal Service within the City of Rochester, County ofMonroe, State ofNew York to:

496 Main Street
X-/4A__
LAURA DOBBS
Sworn to before me this
ERNSTROM
.1_ day ofMay::l_;
925 CLINTON SQUARE
ROCHESTER,NY14604
JUDY MARTIN
Notary Publlo, State of New York
Monroe County- No. 01 MA6260307
CommiMion Expi•Aprll30,
1
1 of 1
11
ORDER OF THE HONORABLE JOSEPH R. GLAWINA, J.S.C., DATED APRIL 22, 2019,
APPEALED FROM, WITH NOTICE OF ENTRY [11-14]
PMJ INDEX NO. 815187/2017
CLERK 0
..
.
RECEIV,ED, NYSCEF:
1..."
At a Term ·of ·the .S:upteme Court,

held in and for the County ·of Ede; at the
Courthouse located in the City of Buffalo,
N\}W York,. oil the ·t7111 day ofApril, 20 l-9 .
.PRESENT: HON. JOSEPH' R. GLOWNIA. J.S.C.

Justice Presiding:
STATE:OFNEW YORK
SUPREME : OF" ERlE
... - - . - - - . --·--·- ----·. ...-...._..•• • !"' -:-·... - ...... "='- .. - ---
THE TOWN OF WEST·SENECA, NEW YORK
Index No. 815187/20.17

vs.
ORDER
LOUIS L,LC.
(f/kla Louis Design Group)
Defendaot
THE TOWN OF WEST" SENECA, NEW YORK, by its attorneys,
ERNSTR,OM & LLP, ·havhig tnoYec;l this Couit for an Ordor Plainti_frs
proposed .record on and said motion .having 'been opposed by Defendant LOUIS
DESIGN SOLUTIONS ARCHkTECTURE, LLC by its attorneys, BURGIO, CURVIN &
BANKER; and
NOW, upon the Order to Show of T.HE TOWN OF WEST SENECA, NEW
YORK, signed March 1-9, ..20 19, the Affidavit of Mtatthew D. Holrnes, Esq., swo.m to MatC.h 13,
1 of 3
12
INDEX NO. 815187/2017

!FILED: ERIE COUNTY CLERK 05/03/2019 04:01 Pij
¥P19
OUNTY CLERK
NYSCEF DOC. NO 68 04/22/2 19
,_
2019, with 1 through 9 att"ched thereto, sl.ibtnitted in support of Plaintiff's motion; and
Upon the Reply Affirmation of Hilary C. Banker, Esq., dated AprilS, 2019, with Exhibits
A attached thereto, submitted in opposition to Piaintiffs: moticm;
Upon the Reply Affidavit ofMattlww P. Holmes, ·Esq., .submitted in furtner support of
,Plaintiff's motion; and
upon heflri"Iig LLP; ·Matthew D. Holmes, Esq., of
counsel, in support of ti1e motion on behaif of Plaintiff THE TOWN OF WEST SENECA,
NEW YORK; upon hearing BURGIO, CURViN & BANKER, Hilary c. BJin.ker, Esq., of
coun.sel, in. the motion on behalfofthe Defendant LOUIS DESIGN SOLUTIONS
ARCHITECTURE, LLC;
AND, aft·erhaving·duedeliberatioo upon·thematters, it is ·\lereby
ORDERED, that Plaintiff's Jnotiort to settle, the recotd is: denie.d ih its entirety; and it is
further
ORDERED; that the -trahsci'ipt ofotal Mgument of Defendant's inotion to disiniss will
iltit;l;;c inCluded on the rccotd on appeitl; it i,s fqrther
ORDERED, that the Memoranda of Law submitted with respect to Defendant's motion
to d.iSiniss Shall not be iilChJded oil·thet(;!COrd Oil appeal; ·and it iS further

ORDERED; ·that tl1e Court wilt. execute a modified Oi·der and Judgment which includes
the Couit's bl}si.s for granting Defendant's motion to disllliss, which :Order shall be filed 'llwtc pro
tune :and will replace the pl'evious Orde1' of the C.o.urt iil relation to Defendant's motion to
2 of 3
13
INDEX NO. 815187/2017

'#) 19
NYSCEF DOC, N , 68 NYSCEF: 04/22/ 019
.,.
..
APR 22 _201g
H'oN .. ·R. GLOWNlA, J.S;C.
···-······ ·-·"'
(.. . . . ...
ENTER:
3 of 3
14

STATE OF NEW YORK

Plaintiff
NOTICE OF E
Index No. 815187
vs.

Defendant
PLEASE TAKE NOTICE that the within is a true copy of an Order duly ente
the Clerk of the County of Erie on April 22, 2019.
Hi 'y C Banker, Esq.
B rgio, Curvin & Banker
496 Main Street
(716) 854-1744
1 of 4
15
NOTICE OF APPEAL, DATED DECEMBER 20, 2018, WITH AFFIDAVIT OF SERVICE
(FILED ER1H:COUNTY CLERK
[15-17]0 2 0 9 PM
12 / 2 0 / 2 0 18 INDEX NO. 815187
:
2017
NYSCEF
FILED: DOC. NC
APPELLATE 43DIVISION - 4TH DEPT 12/21/2018 09:18 AM RECEIVED NYSCEF: 12/20CA 18-02366
2018
STATE OF NEW YORK

Plaintiff,
v. NOTICE OF
APPEAL
LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC Index No.:
81.5187/2017
Defendant.
Supreme Court in and for the Fourth Department, each and every part of the December 3,
2018 Order & Judgment of the Honorable Joseph R. Glownia, J.S.C. that granted Louis
Design Solutions Architecture, LLC's (f/k/a Louis Design Group) ("Louis Design")
motion to dismiss West Seneca's Complaint, which Order & Judgment was rendered at a
Special Term of the Supreme Court held in and for the County of Erie at the Erie
County
Courthouse, located at 92 Franklin Street, Buffalo, New York 14202, on November 16,
2018. A copy of the December 3, 2018 Order & Judgment is attached hereto as Exhibit A.
ERNSTROM
&D135STE
925 CLINTON SQUARE

ROCHESTER, NY 14604
1 of 2
16
INDEX NO. 815187 #2017
FILED : ERIÛ COUNTY CLERK 12/2072018 02:09 PM1
NYSCEF DOC. NC 43 RECEIVED NYSCEF: 12/20.'2018
DATED: December 20, 2018
Rochester, New York
ERNSTROM & D STE, LLP
By:
925 Clinton Square
Phone: (585) 473-3100
496 Main Street
Phones: (716) 854-1744
ERNSTROM
&DR§STE
925 CLINTON SQUARE

ROCHESTER, NY 14604
2 o f 2
17
ERIE COCNTY CLERK 12/T0/2018 . INDEX NO. 815 87/2017
|FILED: 03:09 P¯Ml
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12 20/2018
STATE OF NEW YORK


SERVICE VIA

1ST
CLASS MAIL
-against-
Index No. 815187/2017

Defendant.
STATE OF NEW YORK )
)
SS:
COUNTY OF MONROE )
HAILEY BEERS, being duly sworn, deposes and says that she resides in the Town of
'
I Clarkson; that she is over the age of eighteen years of age; that she is a Legal Secretary
with the law firm of Ernstrom & Dreste, LLP, attorneys for Plaintiff, Town of West
20th
Seneca; that on the day of December, 2018 before 6:00 p.m., deponent served a true
copy of NOTICE OF APPEAL via electronic filing

with the New York State Courts
Electronic Filing
system and by causing the same to be delivered to an official
depository
of the U.S. Postal Service within the

City of Rochester, County of Monroe, State of New
York to:
496 Main Street
EIAILEY E. B S
ERNSTROM
& RESTE SWOrntObefore me this
0 of 2018
day December,
925 CLINTON SQUARE

ROCHESTER, NY 14604
N ary Public
Kayleigh Zapf

- No. 01ZA6363888
Livingston County
Commission Expires September 5, 20_{l
1 of 1
18
ORDER AND JUDGMENT BY THE HONORABLE JOSEPH R. GLOWNIA, J.S.C,
DATED DECEMBER 3, 2018, APPEALED FROM, WITH NOTICE OF ENTRY [18-20]

At a Special Term of the Supreme Court, held

in and for the County of Erie, at the
ew Yo rk, on the 16111 day of ovember,
201 8.
PRESENT: HON. JOSEPH R. GLOWN I A, J.S.C.

Justice Presiding
STATE OF N EW YORK
SU PREME COURT : COU TY OF ERIE
Plaintiff
Index No. 815187/2017

vs .
ORDE R & J UDGMENT
LO UIS DESIGN SOLUTIONS ARCH ITECTURE, LLC

(f/kla Louis Design Group)
Defend ant
Defendant, LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC , by its attorneys,
BU RGIO, CURVIN & BANKER, having moved thi s Court for an Order pursuant to C PLR R.
32 11 (a)(S) dismissing Plaintiff s Complaint on the ground that the action was not commenced
w ithin the applicable statute of limitatio ns, and said motion having been opposed by Plainti ff THE
TOWN O F W EST SENECA, NEW YORK, by its attorneys, ERNSTROM & DRESTE, LLP;
and
NOW, upon the Notice of Motio n of Defendant LOU IS D ES IGN SOLUTOINS
1 of 2
19
FILED: ERIE
II COUNTY CLERK 12/03/2018 04:52 PM INDEX NO. 815187/2017
ARCHITECTURE, LLC, dated September 4, 20 18, the Affinnation of Hilary C. Banker, Esq.,
dated September 4, 20 18, with attached Exh ibits A and B, including the Affidavit of Brian Louis,
R.A., sworn to on September 4, 20 18, all submitted in support of the aforesaid motion; and
!.Jpo.n.. in opposition to motion to di smiss D. Holmes, Esq., sworn
to on September 27, 201 8, with Exhibits I and 2 attached th ereto, and the Affidavit in opposition
of John Fenz, Esq., sworn to on September 27, 20 18, with Exhibits A and B attached thereto, all
submitted in opposition to the aforesaid motion ; and
NOW, upon hearing BURGIO, CURVIN & BANKER, Hilary C. Banker, Esq., of
counsel in suppori of the motion on behalf of Defendant LOUIS DESIGN SOLUTIONS
ARCHITECTURE, LLC; upon hearing ERNSTROM & DRESTE, LLP, Matthew D. Holmes,
Esq., of counsel in opposition to the motion on behalf of Plaintiff THE TOWN OF WEST
SENECA, NEW YORK;
AND, after having due deliberation upon the matters, it is hereby
ORDERED, ADJUDGED AND DECREED, that the motion on behalf of Defendant,
LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC , is hereby granted in its entirety; and
it is further
ORDERED, ADJUDGED AND DECREED, that
DL:C 03 2018
PH R. GLOWNIA, J .S.C.
ENTER:
2 of 2
20

STATE OF NEW YORK

Plaintiff
NOTICE OF ENTRY
Index No. 815187/2017

vs.

Defendant
PLEASE TAKE NOTICE that the within is a true copy of an Order & Judgment duly entered in
the office ofthe Clerk ofthe County of Erie on December 3, 2018.
Dated: December 7, 2018
Hilary c. Ba;ri'ker, Esq.

496 Main Street
(716) 854-1744
To: John W. Dreste, Esq.

Counsel for Plaintiff
1 of 3
21
NOTICE OF MOTION TO DISMISS, DATED SEPTEMBER 4, 2018 [21-22]
INDEX NO. 815187/2017
STATE OF NEW YORK

_______________________________________________________.._________
Plaintiff
vs. NOTICE OF MOTION
Index No. 815187/2017

Defendant Oral Argument Requested
______--------------_____________________________________________
MOTION MADE BY: BURGIO, CURVIN & BANKER

Attorneys for Defendant, LOUIS
DESIGN SOLUTIONS
ARCHITECTURE, LLC
DATE. TIME AND_PLACE
FOR HEARING , 2018 at 9:30 a.m., New York
State Supreme Court, County of Erie, Part
, Buffalo, New York 14202, before
Honorable
SUPPORTING PAPERS: Affirmation of Hilary C. Banker, Esq., dated
September 4, 2018, and all of the pleadings
and proceedings had herein.
RELIEF REQUESTED: Dismissal of Plaintiff's Complaint on the
ground that it was not commenced within
the applicable statute of limitations.
GROUNDS FOR RELIEF: CPLR Rule 3211(a)(5); CPLR §214(6)
1 of 2
22
INDEX NO. 815187/2017
PURSUANT TO CPLR 2214(b), answering affidavits and Notices of Cross-
Motions, if any, must be served upon the undersigned at least seven (7) days before the
return date of this motion.
Dated: September 4, 2018
Buffalo, New York
HILARY C. ANKER, ESQ.

496 Main Street
(716) 854-1744
TO: JOHN W. DRESTE, ESQ.
MATTHEW D. HOLMES, ESQ.
Town of West Seneca, New York

925 Clinton Square
(585) 473-3100
AFFIRMATION OF SERVICE
I, HILARY C. BANKER, ESQ., affirm, pursuant to CPLR 2106, that a true

copy
of the foregoing Notice of Motion and supporting Affirmation was served upon all
counsel above via the NYSCEF System on September 4, 2018.
Buffalo, New York /
HILARy C. BANKER
2 of 2
23
ATTORNEY AFFIRMATION OF HILARY C. BANKER, ESQ., IN SUPPORT
OF MOTION TO DISMISS, DATED SEPTEMBER 4, 2018 [23-27]

STATE OF NEW YORK

_____________________________________________________________
Plaintiff
vs. ATTORNEY
AFFIRMATION
Index No. 815187/2017

Defendant
__________________________________________________________
HILARY C. BANKER, ESQ., an attorney duly licensed to practice law in the
State of New York, affirms the following under the penalties of perjury:
1. That she is a partner in the law firm of BURGIO, CURVIN &
BANKER, attorneys for the Defendant, LOUIS DESIGN SOLUTIONS
ARCHITECTURE, LLC (hereinafter LOUIS DESIGN), herein, and as such, is fully
familiar with the facts and circumstances surrounding this motion.
2. That this Affirmation is prepared in support of Defendant's motion to
dismiss Plaintiff's Complaint on the ground that it was not commenced within the three-
year applicable statute of limitation governing actions to recover damages for
malpractice. Pursuant to CPLR §214(6), action to recover damages for malpractice
(other than medical, dental or podiatric malpractice), regardless of whether the
1 of 5
24

underlying theory is based in contract or tort, must be commenced within three years. In
this case, the action was commenced over thirteen years after the expiration of the
statute of limitations.
3. The Summons and Complaint seeks damages for architectural malpractice
in connection with design work done for the Charles E. Burchfield Nature & Art Center
located at 2001 Union Road in West Seneca, New York. Plaintiff claims that Defendant
was negligent in performing its professional architectural services.
4. Plaintiff's Verified Summons and Complaint is attached hereto as Exhibit
A. In the Verified Complaint, certain statements are made by the Plaintiff. These include
the following:
(a) A January 20, 1998 proposal issued by Nussbaumer & Clarke, Inc. (NCI)
for professional engineering services at the Burchfield Center indicated
that LOUIS DESIGN would work as a sub- consultant to NCI on the
Project (Exhibit A, paragraphs 5 & 6).
(b) In or about November 1998, NCI and LOUIS DESIGN prepared a first
set of construction drawings including a site plan that WEST SENECA
intended to rely on and use in the construction of the Burchfield Center
(Exhibit A, paragraph 8).
(c) On or about May 25, 1999, NCI informed WEST SENECA of a

supplemental proposal and indicated that LOUIS DESIGN
would proceed with architectural work on the Burchfield Center (Exhibit
A, paragraph 9).
(d) Thereafter, LOUIS DESIGN proceeded to design the Burchfield Center

in accordance with WEST SENECA's goals, objectives and expectations
and otherwise for the benefit of WEST SENECA (Exhibit A, paragraph
10).
2 of 5
25
(e) WEST SENECA relied on the advice, recommendations and drawings of
LOUIS DESIGN before bidding out the construction of the Burchfield
Center (Exhibit A, paragraph 12).
(f) On or about March 11, 2002, WEST SENECA certified that the
Burchfield Center building was complete (Exhibit A, paragraph 14).
5. In the Verified Complaint, WEST SENECA claims that due to the
architectural malpractice of LOUIS DESIGN there are defects in the Burchfield Center
that require repair. WEST SENECA seeks damages against LOUIS DESIGN,
specifically, the cost of said repairs. However, pursuant to the applicable statute of
limitations for architectural malpractice, any claims by WEST SENECA for the
architectural drawings provided to it by LOUIS DESIGN and which it relied upon in the
construction of the Burchfield Center, which was complete in 2002, must have been
brought within three years of the completion of the Project. Plaintiff failed to do so and
therefore its claim is time barred. (See Affidavit of Brian Louis, R.A., attached at Exhibit
B).
6. Case law is clear that a cause of action against an architect accrues when
his or her professional relationship with the owner ends. In the instant case, the
professional relationship between the Plaintiff and LOUIS DESIGN concluded in excess
of ten years prior to the date of the Summons and Complaint was filed.
7. Clearly aware that the applicable statute of limitations has long run,
Plaintiffs attempt to use the provisions of CPLR §214-d to escape their failure to
timely
commence the instant action. However, the instant action, which is brought by an
3 of 5
26
owner against a contractor for architectural malpractice, is not of the nature of those cases
properly brought under CPLR §214-d. Plaintiff herein cannot utilize the provisions of
§214-d to expand the applicable statute of limitations.
8. Plaintiff asserts in the Complaint that it is a claim for "property damage".
However, Plaintiff cannot claim that its damages which, according to the Complaint, are
as a result of economic loss resulting from a breach of contract, and call it

"property
damage"
to shoehorn this case into those covered by §214-d. Section 214-d was intended
for third-parties, with no contractual or other relationship with the architect, who bring a
claim for, for example, personal injuries, against an architect. Section 214-d heightens
the standard for a Plaintiff in a personal injury action as the Plaintiff must demonstrate
that a substantial basis in law and fact exists to show Defendant's performance was
negligent. This is a much higher standard than for a traditional motion to dismiss or a
Motion for Summary Judgment.
9. In this case, the owner of the property delayed bringing its claim that there
was an issue with the design of the property. However, the Plaintiff has been on this
premises and aware of its condition since construction was complete. They had ample
time to bring an action pursuant to the applicable three-year statute of limitations for
architectural malpractice. They failed to do so. Plaintiff herein is not in the same
position as a third-party with a personal injury action that had no knowledge of the
construction of this property and had not been present on the property since its
4 of 5
27
construction. Plaintiff is attempting to misconstrue and misapply §214-d in order to
escape its failure to timely commence this action.
10. Case law is clear that §214-d cannot be used by an owner to extend the
three-year statute of limitations. See attached Memorandum of Law.
WHEREFORE, Defendant respectfully requests an Order of this Court dismissing
Plaintiff's Complaint on the ground that the action was not commenced within the three-
year statute of limitations, together with such other and further relief as this Court may
deem just and proper.
Buffalo, New York

496 Main Street
(716) 854-1744

925 Clinton Square
(585) 473-3100
5 of 5
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EXHIBIT A - SUMMONS AND VERIFIED COMPLAINT, DATED JULY 11, 2018 [28-37]
NYSCEF DOC.: NO. INDEXNYSCEF:
(FILED ERIf 14
: COUNTY CLERK 07/12 /2018 09: 32 AM)
RECEIVED NO. 09/04/2018
815187 2017
NYSCEF DOC. NC 4 RECEIVED NYSCEF: 07/12 2018
STATE OF NEW YORK

Plaintiff
-against- SUMMONS
Index No. 815187/2017
Louis Design Solutions Architecture, LLC,

Defendant
To the Above-Named Defendant:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action
and to serve a copy of your Verified Answer or, if the Verified Complaint is not served with
this Summons, to serve a Notice of Appearance on the Plaintiffs attorney(s) within 20 days
after the service of this Summons, exclusive of the day of service (or within 30 days after
the service is complete if this Summons is not personally delivered to you within the State
of New York); and in case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the Verified Complaint.
The place of trial shall be Erie County. Venue is based on CPLR 503(a) and (c).
Dated: July 2018
Rochester, New York ERNSTROM & DRESTE, LLP
E s

925 CUNTONSQUARE
ROCHESTER,NY 14604 Matthew D, Holmes, Esq.
925 Clinton Square
(585) 473-3100
Drestetsited-Ilp.com
MHolmes@ed-llp.com
1 of 2
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NYSCEF DOC. NO. 14 RECEIVED
INDEX NYSCEF:
NO. 09/04/2018
815187/2017
(FILED : ERIf COUNTY CLERK 07/12/2018 09: 32
NYSCEF DOC. NC. 4 RECEIVED NYSCEF: 07/12 2018
TO: Louis Design Solutions Architecture, LLC

443 Delaware Avenue
925 CLINTONSQUARE
ROCHESTER,NY 14604
2 of 2
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INDEX
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NO.
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NYSCEF DOC. NC 5 RECEIVED NYSCEF: 07/12, 2018
STATE OF NEW YORK

Plaintiff
-against- VERIFIED COMPLAINT

Index No. 815187/2017

Defendant
Plaintiff The Town of West Seneca ("West Seneca"), through its attorneys
Ernstrom & Dreste, LLP, for its Verified Complaint against Louis Design Solutions
Architecture, LLC (f/k/a Louis Design Group) ("Louis Design"), alleges as follows:
PARTIES
1. Plaintiff West Seneca is a municipal corporation organized and existing
under the laws of the State of New York with its principal place of business located at
1250 Union Road, West Seneca, New York 14224.
2. Upon information and belief, Defendant Louis Design is a domestic limited
E s
liability company organized and existing under the laws of the State of New York with a
principal place of business located at 443 Delaware Avenue, Buffalo, New York 14202.
925 CUNTONSQUARE
ROcHESTER,NY 14604
3. At all times relevant herein, Louis Design was engaged in, among other
things, the business of providing professional architectural services.
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/12 2018
PROJECT BACKGROUND
4. This lawsuit relates to the design and construction of a building and
surrounding park in the Town of West Seneca, New York, commonly known as the
Charles E. Burchfield Nature & Art Center, which is located at 2001 Union Road, West
Seneca, New York 14224 (the "Burchfield Center") and latent defects that were directly
and proximately caused by Louis Design's negligence in performing its professional
architectural services.
5. The Burchfield Center is a municipal building that consists of a building
that has approximately 5,200 square feet of usable space and a surrounding park.
6. In or about January 20, 1998, Nussbaumer & Clarke, Inc. ("NCI") issued a
proposal to West Seneca for professional engineering services at the Burchfield Center.
Attached hereto as Exhibit A is a copy of the January 20, 1998 proposal.
7. The January 20, 1998 proposal indicates that Louis Design would work as a
sub-consultant to NCI on the Project.
8. Upon information and belief, in or about November 1998, NC1 and Louis
Design prepared a first set of construction drawings, including a site plan that West Seneca
intended to rely on and use in the construction of the Burchfield Center.
9. In or about May 25, 1999, NCI informed West Seneca of a supplemental
ERNSTROM
&Dq5srs proposal to change the structure of the Burchfield Center building from modular
925 CUNTONSQUARE conStruction (O a cuStom build, indicated that Louis Design would proceed with
ROCHESTER,NY 14604
architectural work on the Burchfield Center, indicated that NCI would provide structural
plans, elevations, sections, and details of the foundation and framing for the Burchfield
Center, and stated that 25 sets of plans and specifications will be provided to West Seneca
2 of 8
32

INDEX NO. 815187/2017
to use for bidding the construction of the Burchfield Center. A copy of NCI's May 25,
1999 supplemental proposal is attached hereto as Exhibit B.
10. Thereafter, upon information and belief, Louis Design proceeded to design
the Burchfield Center in accordance with the West Seneca's goals, objectives, and
expectations and otherwise for the benefit of West Seneca.
11. West Seneca then received sets of construction drawings for the Burchfield
Center dated June 1999. Attached hereto as Exhibit C are copies of the sets of June 1999
construction drawings.
12. West Seneca relied on the advice, recommendations, and drawings of Louis
Design before bidding out the construction of the Burchfield Center.
13. In or about July 1999, construction of the Burchfield Center began.
I4. In or about March 11, 2002, West Seneca certified that the Burchfield
Center building was complete.
BURCHFIELD CENTER EXPERIENCES PROPERTY DAMAGE
15. In or about January 2017, representatives of West Seneca first noticed
unusual building damage and structural deterioration at the Burchfield Center.
16. As presently ascertained, the Burchfield Center has suffered significant
property damage, including, but not limited to, locking hardware that bursts off double
ERNSTROM
&DRySTE hung windows, a significant amount of differential wall settlement near window locations,
925cLINTONSQUARE Wood rot at the bottom of the walls of the Burchfield Center, and differential settlement of
ROCHESTER,NY 14604
the stud walls.
17. West Seneca anticipates that it will continue to discover additional property
damage to the Burchfield Center.
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18. West Seneca, through Building Science Services, LLC, investigated the
cause of the property damage to the Burchfield Center and determined that the Burchfield
Center's latent defects were caused by an improper design of the Burchfield Center.
Attached hereto as Exhibit D is a copy of Building Science Services, LLC's April 28,
2017 Review of Conditions and Report of Findings.
19. As presently ascertained, West Seneca determined, among other things, that
the original design of the Burchfield Center contained improper and poorly coordinated
specifications as to where the ground elevations were intended to be, and such improperly
designed specifications led to wood wall framing sitting approximately 6-7 inches below
the Burchfield Center's floors lap elevation, 2-3 inches below the surrounding earth grade,
and 8-9 below grade at door entry and walkway perimeter areas.
20. As presently ascertained, this improper design caused exterior wood wall
surfaces to be exposed to continuous and extended conditions of moisture exposure and led
to the damage that the Burchfield Center experienced.
21. As a result of the improper design of the Burchfield Center by Louis
Design, West Seneca has suffered direct and consequential damages in a sum which shall
be determined by the Court, but which is believed to exceed $1,772,664.00.
22. West Seneca duly provided notice to Louis Design of its claims pursuant to
E s
CPLR 214-d upon of the damage. Attached hereto as Exhibit E is a
discovery property
true and complete of West Seneca's Verified Notice of Claim Pursuant to CPLR 214-
925 CUNTONsQUARE copy
ROCHESTER,NY14604
d against Louis Design along with the affidavit of service.
23. West Seneca has fully complied with the requirements contained in CPLR
214-d prior to bringing this lawsuit.
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INDEX NO. 815187 / 2017
NYSCEF DOC. NO, 5 RECEIVED NYSCEF: 07/12/2018
AS AND FOR A FIRST CAUSE OF ACTION
(Malpractice and Negligence against Louis Design)
"1" "23"
24. West Seneca repeats and realleges paragraphs through above as if
fully set forth herein.
25. Upon information and belief, Louis Design was retained by NCI to help
design the Burchfield Center for the benefit of West Seneca and to provide all those
professional architectural services necessary to construct and complete the Burchfield
Center.
26. Louis Design possessed special knowledge and skills as it related to the
professional architectural services it provided West Seneca for the design of the Burchfield
Center.
27. Louis Design knew that its professional design services were for the benefit
of the Plaintiff.
28. Louis Design knew that its professional skills, its development of the
Burchfield Center, and its final design documents including drawings, plans, and
recommendations, would be used and relied upon by the Plaintiff for the construction of
the Burchfield Center,
29. By preparing the design of the Burchfield Center, Louis Design impliedly
ERNSTROM
&Dq5sTE represented to Plaintiff it had the reasonable degree of skill usually possessed by a
925 cLINTON SQUARE professional architect, that it was familiar with the construction materials and practices in
ROCHESTER,NY 14604
ordinary use in the construction of the Burchfield Center, and that it was familiar with the
various building code provisions governing construction of the Burchfield Center.
30. In providing its professional design services in connection with the
construction of the Burchfield Center, Louis Design owed the Plaintiff a duty to use that
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INDEX NO. 815187/2017
NYSCEF DOC. NO, 5 RECEIVED NYSCEF: 07/12/2018
degree of skill and learning normally possessed and used by a professional architect in
good standing in a similar practice and under like circumstances.
31. Louis Design breached its duty to Plaintiff by failing to properly design the
Burchfield Center.
32. As a direct and proximate result of Louis Design's breach of its duty to use
that degree of skill and learning normally possessed and used by a professional architect in
good standing in a similar practice and under like circumstances, in delivering its
professional architectural services, the Plaintiff has suffered direct property damages to the
Burchfield Center in a sum which shall be determined by the Court, but which is believed
to exceed $1,772,664.00.
WHEREFORE, Plaintiff The Town of West Seneca, New York respectfully
requests judgment against Defendant Louis Design Solutions Architecture, LLC (f/k/a
Louis Design Group) as follows:
a. On its First Cause of Action, judgment in favor of Plaintiff and against
Defendant in an amount which exceeds $1,772,664.00, but which arnount will
be fully determined by the Court; and
b. For other further relief that the Court deems just and proper.
ERNSTROM
&Dif5STE
925 CLINTONSQUARE
ROCHESTER,NY 14604
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Dated: July1, 2018

925 Clinton Square
(585) 473-3100
JDrestc(a ed-Ilp.com
MHolmesfaled-llp.com
VERIFICATION
925 CLINTONSQUARE
ROCHESTER,NY 14604
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
JOHN FENZ, ESQ., being duly sworn, deposes and says:
7 of 8
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VERIFICATION
STATE OF NEW YORK )

) ss.:
COUNTY OF ERIE )
I am the Town Attorney and an Authorized Representative of the Plaintiff in the
above captioned matter; I have read the foregoing Verified Complaint and know the
contents thereof and the same is true of my own knowledge except as to those matters
therein stated to be alleged upon information and belief, and as to those matters I believe
them to be true. The grounds of my belief as to all matters in the Verified Complaint not
stated upon my knowledge are as follows: my personal review of the Plaintiff's records
and my involvement with the Burchfield Center after completion f the P oject.

//_d'
day of Ju , 2018.
ota Public
JACQUELINE A. FELSER
Lic. # 01FE4954926
Qualified In Erie County
My Commission Expires August 21, 20f.2/_..
8 of 8
38
EXHIBIT A - NUSSBAUMER & CLARKE, INC. PROPOSAL LETTER [38-41]
FILED : ERIE COUNTY CLERK 07/12/2018 09:37 W INDEX NO. 815187/2017
0W20/W · 616:20 07168267958 NCI BUFFALO RECEIVED NYSCE 0Q2/ /41( /2018
NYSCEF
.
Nussbaumer & Clarke, Inc.
ConsulcInc Eng inearm Surveyors
3556 Lake Shore Fid,, Suisacop a suffalo, New York 14219•1494
t718)S27-8000 Br•ench offloes;

Qswego, New York
Fax (710) 828-7968
Comenus. North CaroHns
January 20, 1998
Councilman•Chris Osmanski
Town of West Seneca -
- -
1250 Union Road
West Seneca, New York 14224
Re: Proposal for Professional Engineering Services

Youth Bureau Building
NCI File-N.cL_92-100/.01
Dear Mr. Osmanski: . .
Nussbaumer & Clarke, (NCI) is pleased to offer the following

Inc. Proposal For Professional Engineering
Services for the 3,780
square foot youth bureau bü!!dirg on Union Road near Clinton Street. This
proposal was prepared in response to your verbal request for a prapass! on January 14, 1998, NCI has
teamed with Louis Design Group (LDG) for the architectural plans for the building and they will be
working as a sub-consultant to us on this project.
SCOPE OF WORK:
The project involves the construedon of approximately 3780± square foot facility as shown on the drawing
presented at our Ineeting.
SCOPE OF SERVICES:
NCI offers the following Professioinil Engineering Services for cach of the design in order to complete the
work.
A, Topographic Survey:
1. Topographic survey work will be perfouned to characterize the site elevation changes and
for use in obtaining a flood plain devclepmers pennit. The topographic work will include
the establishment of survey baselines, bench marks based on USGS datum, verificatics of
existing roadway fea1ures, pavement limits, signs, trees, power poles, and underground
utility markers.
2, Base maps of the survey data will be developed from field survey work and the exisdng
features plotted on a 20 scale map, This map will serve as a base map for engi=ering site
deSign,
B. Design Development:
1. After review with the Owner, NCl and LDG will incorporate any revisions if required into
the schematic design plans. Outline specifications will be developed for the project with
attention to types of materials to be used•
..
STAFFED BY: ENGINEERS * ISLANNERE • SURVEYORS

39

INDEX NO. 815187/2017
FILED : ERIE COUNTY CLERK 07 /12 /2018 0 9: 37
RECEIVED NYSCE 7/ /2018
0 /2Ô/ 16: 20 9716 82679s 8 NCI BUFFALO
Nussbaumer & Cler-ke,Me.
Councilman Chris Osmanai
Page 2
January 20, 1998
2. Architectural features will be coordinated with mechanical, electrical, structural, and site
design. A preEmir:=y opinion of probab)c cost will be developed based on the Owner's
building program.
C. construction Docums .'a:
1. NCI will provide site plans with finish

paying grades, sidewalks, drainage structures and
piping, parking layouts,hydrant locations,
waterlines, and site lighting. Plans, profiles,
and details will the site.
be developed The Town
for of West Seneca will most likely
require a submission of a site plan and an Eng eer's Report for site plan approval. We
shall provide these as part of the site design pordon of the work.
2. LDG will develop architectural plans indicating, floor plans, roof plans, building
elevations, sections, window and door schedules, and details. --
3. NCI will develop structural plans, elevations, sections, and details of the foundations and
framing. NCI will use NYS Uniform Fire Prevention and Building Code live loads for
foundation design.
4. NCI will develop mechanical, fire protection, and plumbing plans for the building under
consideration. Plans, sections, and details for a ventilation system as well as necessary
plumbing systems will be prepared.
5. NCI will develop clectrical plans inriirating lighting flXmre layout, wiring diagrams,.panel
wiring. Convenience outlets, power for mechanical equipment, b ding lighting and site
lighting will be provided. We are not anticipating data cabling work,
6. NCI and LDG will develop bid documents comprising instructions to bidders, proposal,
agreement, general contract conditions, supplemenbuy conditions, and technical
specifications. The Owner shall provide the General Conditions, Form of Agreement,
Conditions, Instructions to Bidders, Insurance Requirements and other
Supplementry
·· Seneca's These documents
standard forms normally used in West bid documents. along
-
with the drawings will comprise a bid set for prospective sub-contractors. NCI will
provide twenty (20) sets of plans and specifications for the Owners use in obtaining bids,
D. Construction Services:
1. NCI and LDG will assist the Owner during bidding to answer questions and issue addenda
as necessary.
2. NCI and LDG will provide

shop drawing coordination and review services for the project.
NCI and LDG will
thirty (30) make
site visits throughout the course of the contract. Site
visits will be made at the times that important activities are underway. Additional visits
at the request of the Town for construction corsaltatian services will be billed at an hourly
rate as an additional service.
40

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NYSCEF: 09/04/2018
NO. 815187/2017
FILED : ERIE COUNTY CLERK 07/12 /2018 0 9: 37 AM)
RECEIVED NYSCE ·0006%g/2018
MSCEFOÎŸÎ0/ 6: 21 37168 287958 NCI BUFFALO
. _
Nusebetarner & Clarke,Inc.
Councilman Chris Osmanski

Page 3
January 20, 1998
E. Exclusions:
1. This proposal does not include provisions for hazardous waste analysis, wetlands lecat ors,
nor cultural resource evaluations.
2. This proposal does not include services for docurnenting SEQR, preparing environmcani
assessments or impact statements, attendance at Town Phnñing Board meetings, or
securing building permits.
3. After review of the proposed building location on the site, a subsurface investigation
program should be developed with the Owner. The Town should engage the services of
a geotechnical sub-consultant to characterize the sabsurfaca conditions at the site; After
the foüñdatica loading conditions have been ascertained, we anticipate the Town will retain
a georethic.al engineer to study the conditions and prepare a geotechnical analysis for the
project,
4. NCI has not included a full-time construction observer in this scope of services per past
- -
arrangements with the Town.
FEES:
The following lump sum fees are based on a convardioüal design, bid, build project as follows:
A. Topographic Survey .... . . . . . . . . . . . . . . . . . . . ...,.... . . . . . . . . . $ 4,000.00
B. Prelirninary Design . . . , . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . , S 6.000.00
C. Construction Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $16,300.00
E. Contract Administration .... . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . $ 7,500.00 ),
If the Town decides to use a prefabricated building and have an apprentice program with training
contractors, the fees in the agreement will need to be re-negotiated to conform more closely a revised
··
scope. In the absence of a defined program at this point, NCI and LDG offer this proposal based on our
understanding of the project to date.
Costs shall be billed monthly. based on the actual work authorized and performed each month. A_mounts
billed are due and payèle within sixty (60) days of the date of invoice. Costs and coa.didons included in
this proposal are valid for a period of sixty (60) days from the date of this quotation.
If this proposal is acceptable, please sign and return the copy of this proposal to our office serving as our
authorization to proceed. The original is for your records.
.
41

INDEX NO. 815187/2017
FILED : ERIE COUNTY CLERK 07 /12 /2018 09: 37 A$
NYSCEF ( 7168267958 NCI BUFFALO RECEIVED NYSCE :0E574D3/2018
6:21
Nussboumer a Clarke, Inc.
..
..
Councilman Chris Osmanski
Page 4
January 20, 1998
NCI thanks you for the oppaemity to present this proposal and look forward to working with you on this
project, If there are any questions, please call us at your earliest opportunity.
Yours tmly,
NUSSBAUMER & CLc.RIG, INC.
Michael F. Smith, P.E.

Vice President
C.E.O. -
Engineering
Michael B. Pratt, P.E.

Corporate Associate
Accepted: WN OF WEST SENECA
By: .
Title: 7-5®w Ewp -w Dart /e. /pf
ROUTE TO:
R3OBVED f stials. nate

n--rc - (Lw
JAN 3() EE S gg. ,,
NUSSSAUER & CLARKE M 4
JOB # -- FILE #
42
EXHIBIT B - NUSSBAUMER & CLARKE, INC. SUPPLEMENTAL
PROPOSAL LETTER [42-43]

INDEX
NYSCEF:
NO.
09/04/2018
815187/2017
FIT RD : ERIE COUNTY CLERK 07/12 /2018 0 9: 37 Ali
NYSCEF DOQg/Wf.007 10 : 2 5 tf 7 16 8267958 NCI BUFFALO RECEIVED NYff gh/o /12/2018
Nussbaumer & Clarke ac.
Consuicing Engineers Gurveyor a
36e5 Laite Shore Ad.. Swa 500 • BuNalo, New York 1421921 494
010 $27.000Q granch ONice:

a× U1 SJ 626-7958 Charlocca. Nort.6 Caroline
May 25, 1999
Christopher Osmansld, Councilman

Town of West Seneca
1250 Union Road
WestSeneca, NY 14224
Re: Proposal for Professional Suppletnenal Engineering Services

West Seneca Youth Bureau, Burchfield Park
NCI File No. 98112
Dear Chris:
Nussbaumer & Clarke, Inc. (NCI) is pleased to offer the following supplemental Engineering Services
Proposal for the above referenced project. h Supplemental Engineering Services are being provided to
convert the current modular design to a stick built design. the work associated with this proposal is directly
related to the preparation of redesign and rebidding documents.
SCOPEOF WORK
NCI and the Louis Design Group (120) will develop the necessary documents required to revise the Youth
Center Design. The redesign will incorporate a stick buik structure with a slab on gode floor system and
revised foundation system.
LDG will redevelop the architectural plans matring the necessary revisions ro indicate a stick built structure
and remove references to the modular constructionmethods previously bid.
NCI will revise plans, elevations, sections and details of the fooprintiana
the structural and frarning. Also
included in NCI's of work will be the redevelopment
scope of the mech=rdcal, ventilation, fire protection,
plumbing, and electrical plans. The revisions of these plans will focus on the provision of the same basic
Iayout of all fixtures and systems as envisioned in the modular unit design where fbasible. The redesign will
convert the modular units to a stick built design.
NC1 and LDG will redevelop the bid documents as required to reflect the redesign and new bid dme frame
and schedule. NCI will provide twemy-five (25) sets of plans and spechrinns for the Town's use in
obtaining bids.
FEES
The following lump sum fees are associated with the work that NCI and LDG will perform as described
above:
STAFFED SY: ENGINEERS • pt.ANNERS • SURVEY Q FIS

43

FILED : ERIE COUNTY CLERK 07/12 /2018 09: 37 $ INDEX NO. 815187/2017
NYSCEF DO 007 NC1 8UFFALO RECEIVED NY $/0 3/12/2018

10: 26 8716 8 267958
Nussbaumer & CFatke , Inc.
Christopher Osmanski, Councuman

Town of West Seneca
May 25, 1999
Page 2
A. Prepare Design Plans and Documents 59,750,00
B. Assist the Town during Bidding $1.500.00
Costs shall be billed monthly, based on the actuai work authorized and perfouned each month. Amounts
billed are due and payable within sixty (60) days of the date of invoice. Costs and condidons included in this
proposal are valid for a period of sixty (60) days from the date of this quotadon.
It is NCI's understanding that the Town's Engineering Department realizes the slab on grade option requires
structural fill,which will need to be brought in fmm an off-site source. 'llie existing borrow material from
onalte sources will not be acceptable as structural fill material. Conversations held Monday Evening May 24,
1999 during the Town Board Meeting indicated the structural fill needed for the slab on grade will not be
included in the balanced cut and fill for the overall park site and Race Street Reec=±± project.
NCI will endeavor to complete the redesign in two (2) weeks time.
NCI appreciates the opporamity tosubmit this proposal, We are available at your convenience should you
desire to discuss any aspect of this proposal. Upon acceptance of our proposal, please sign both the original
and the enclosed copy where indicated below and return the copy to our ofHce. The original is for your file.
This will then serve as our Agreement and Notice to Proceed.
Yours tmly,
NUSSBAUMER & CLARKE, INC.
Michael F, Smith, P.E.

Vice President and C.E.O. -
Engineering
Barbara J. Frankiewicz, P.E.

Project Manager
MFS/bjf/m
Accepted by: TOWN OF WEST SENECA
gy: Date:
Title:
F:WPPROPOSAuW4ENECAWS Osmansid5-25doc
44
EXHIBIT C - JUNE, 1999 CONSTRUCTION DRAWINGS [44-69]
INDEX NYSCEF:
NO. 09/04/2018
815187/2017
(FILED: ERIE COUNTY CLERK 07/12/20-1-8 09:37
NYSCEF DOC. NO..8 RECEIVED NYSCEF: 07/12/2018
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45

(FILED: ERIE COUNTY CLERK 07/12/2018 09:37 W INDEX NO. 815187/2017
NYSCEF DOC. NO. 8. . RECEIVED NYSCEF: 07/12/2018
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46

INDEX NO.
INDEX NO . 815187/2017
815187/2017
[FILED:
FILED: ERIE COUNTY
ERIE COUNTY CLERK
CLERK 07/12/2
07/12/2018
.I .
018 09:37
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47

INDEX NO. 815187/2017
[FILED: ER_IE COUNTY CLERK 07 12/2018 09:37 AM|
RECEIV2D'
NYSCEF DOC. NO. 8 . . NŸSCEF: 07/12/2018
L .
48

INDEX NO. 815187/2017
|FILED: ERIE COUNTY CLERK 07/12/2018 09:37 A
NYSCEF DOC. NO. 8 an . RECEIVÈÚ NÝSCEF: 07/12/2018
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49

INDEX
INDEX NO. 815187/2017
NO.
(FI LED : ERIE
(FILED: ERIE COUNTY
COUNTY CLERK
CLERK 0 7/12/201.8 09:37
07/12/2018 09: 37 AMI 815187/2017
i. .AJ!Jj, ' • • 1: RECE1VED
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NO. 07/12./2018
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50

(FILED: ERIE COUNTY CLERK 07/12/2018 09:37 $ INDEX NO. 815187/2017
NYSCEF DOC. NO. 8 . RECEIVED NYSCEF: 07/12/2018
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51

INDEX
INDEX NO.
NO. 815187/2017
815187/2017
!FILED:
[FILED: ERIE
ERIE COUNTY CLERK
COUNTY CLERK 07/12/·2018 09:;3.:].
09:37 AM)
AM) ..
NYSCEF
NYSCEF DOC.
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NO. 8 . RECEIVED
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52

INDEX NO. 815187/2017
(FILED: ERIE COUNTY CLERK 07/12/2018 09:37 AM|
NYSCEF DOC. .NO. 8 . . RECEIVED NYSCEF: 07/12/2018
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53

™DEX NO. 815187/2017
FILED: ERIE COUNTY CLERK 07/12/2018 09:37 AM)
NYSCEF DOC. NO.. 8 ) RECE1VED NYSCEF: 07/12/2018
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INDEX NO. 815187/2017
FILED: ERIE COUNTY CLERK 07/12/2018 09:37 AM
NYSCEF DOC. NO. 8 RECEIVÈD NYSCEF: 07/12/2018
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55

INDEX
INDEX NO.
NO. 815187/2017
815187/2017
(F ILED: ERIE
|FILED: ERIE COUNTY
COUNTY CLERK
CLERK 07/12/2
07/12/2018 0 18 09
09:37! 37 AMJ
AM]
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 8 ;_ .. :.: ' un RECEIVED
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56

INDEX NO. 815187/2017
FILED: ERIE COUNTY CLERK 07/12/2018 09:37
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NYSCEF INDEX
RECEIVED NO. 815187/2017
NYSCEF: 09/04/2018
ERIE 14 COUNTY
FILED:DOC. NO. CLERK 07/12/2018 09:37 AM)
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/12/2Ó18
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07/12/2018
815187/2017
NYSCEF NO. 14 COUNTY INDEX
RECEIVED NO.
NYSCEF: /2 017
81518 709/04/2018
IFILED: DOC. ERIE CLERK 07/12/2018 09:37 AM|
NYSCEF DOC. NO. 8 RECEIVED NYSCEF : 07/12 / 2 018
SENECA - #
TOWN OF WEST JOB B-9902
BURCHFIELD PARK IMPROVEMENTS PROJECT
7"
PAUL CLARK SUPERVISOR
JERRYM. HICKS CHRISTOPMERF e.

OSMANSKI
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60

(FILED:
ILED: ERI INDEX
INDEX NO. 815187/2017
NO. 815187/2017
ERIE E 'cdUNTY
COUNTY 'CLERK
CLERK ' 07/12/20'1"8'
07/12/2018 09:3·i
09:37 itM)
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NYSCEF
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CLERK 07/12/2018 09:37
INDEX NO. 815187/2017
(FILED : ERIE 'COUNTY .CLERK 0 7/ 1212 0'1"8 o·9 :3'7 )@t)
FILED: ERIE COUNTY NO.
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INDEX NO. 815187/2017 FILED: ERIE COUNTY CLERK 09/04/2018 03:23 PM
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FILED: ERIE COUNTY CLERK 07/12/2013 09:37 AM)
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66

INDEX NO. 815187 /2017
NYSCEF DOC. NO. 8 . . . RECEIVED NYSCEF: .07/12/2018
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68

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70
EXHIBIT D - BUILDING SCIENCE SERVICES, LLC’S APRIL 28, 2017
REVIEW OF CONDITIONS AND REPORT OF FINDINGS [70-85]

I N DEX NO . 8 1 5 1 8 7 / 2 O1 7
FILED : ERIE COUNTY CLERK 07/12 /2018 0 9: 37 A14
Building Science Services. LLC

8304 Main Street
Williamsville, New York14221
T. 716-204-9733
www Rui sciencesetvicca.com
April 28, 2017
Mr. John Fenz

Town Attorney
Town of West Seneca
1250 Union Road
Re: Review of Conditions

Charles E. Burchfield Art & Nature Center
2001 Union Road
West Seneca, NY
Mr. Fenz,
In response to reports of unusual building damage and structural deterioration at the above
refereñced Burchfield Center, my office completed our initial evaluation and offer the follow
report of findings.
In summãry, and with special emphasis on the exterior walls, please be advised we have found
the building was improperly designed and constructed as it relates to the unusual building
damage currently being encountered.
More specifically, the design of the exterior walls was such that it was a certainty that the
lower sections of wall would rot and the building would start settling. As per the design, the
wood framing rests upon a wood bearing plate. The wood bearing plates as well as the wood
structural sheming are in contact with, and positioned below the surroüñdiñg earth and grade.
This conditi0ñ has allowed general ground moisture, rain water and snow melt to come into
cGatact with the wood over the years since it was first constructed. This constant and ongoing
contact with water has caused the wood at the bottom of the walls in various locations to
deteriorate due to rot. The rotting of the bottom of the wood is in tum causing the differential
settlement of the stud walls.
The cõñditions you have seen in recent months with regards to locking hardware bursting off
double hung windows is a direct result of the differential wall senlement near particular
window locations. Unfortüñately, these conditions are just the initial symptoms of what will
become worse conditions over time.
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Page2of16
Background Information:
A. It is my understanding that my firm was a referral from other Design Professionals to

the Town to offer assistance in this matter. It is also my understanding that all parties
that review this report may not have information regarding my background and
credentials as the main author of this report. I offer the following:
1. I am NYS registered and practicing Architect. I have approximately 30 years of
industry experience. My CV is available by request if necessary.
2. 1 am founder and principal of a firm called Architecture Unlimited, PLLC. This

firm was founded in 1995 and continues to provide architecture and engineering
services, as well as constmetion management services (as-advisor). The firm's
focus was, and.remains on expansion, alteration and repair of existing facilities.
Our primary market presence is in municipal, industrial, institutional, and high-end
residential work.
3. I am a founding partner in Building Science Services, LLC. This firm was formed
in 2013 to better provide forensic architecture & engineering, specialty design
evaluations, and construction testing, and expert witness services that had been a
growing and more specialized service segment within Architecture Unlimited since
its early years. The firm has had significant involvement in both the review as well
as resolution of a large number and varying type of building performance failures,
building related injury or death matters, and design/construction related disputes
and litigation.
4. I am also a founding partner in a separate company called C3i Services. This firm
provides consulting and technical support to various entities involved in design,
construction and other building-performance outcomes. We also provide
credentialed education services primarily to design professionals and code
enforcement officials. C3i is a service-disabled veteran-owned small business
(SDVOSB).
B. Building History/Background:
l. The building is relatively new. It was designed and constructed as a new building
on or about 1999-2000 with occupancy reputed to be taken some time in 2001.
2. The Town furnished me with original construction drawings dated June 1999. A
project manual (specification book) was not included. The drawings show the
design and engineering was provided by an apparent joint venture of 2 separate
firms, Nussbaumer & Clarke, Inc. for engineering and Louis Design Group for
architecture.
3. I was not provided any review information on who the contractor(s) were. Based
on my review to date, it is not clear such information would have been of any value.
4. The building has approximately 5,200 square feet of usable space.

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5. The building is a wood frame structure, very similar to basic home construction.
The walls are wood studs. The roof is a combination of wood trusses for sloped
roofs and pre-engineered wood framing for flat roofs. The floor is concrete slab.
The foundation appears to be concrete masonry (block). There is no basement
space.
6. Most building components, assemblies, and systems appear to be relatively normal.

The exceptions are as follows:
a. Within the attic spaces, the building is basically equipped with 2 roof-top
HVAC packaged systems that provide the bulk: of the building's heating (H) and
cooling (AC) needs. This configuration is unusual in that these units are
normally intended by design to be installed outside the building and not inside.
These units require access to outside air as part of their internal combustion
needs and building space ventilation (V) functions.
b. The roof/attic is configured with a bizarre 2-layer roof insulation system, a

levels'
system that appears to have been a failed attempt to install 2 'half of
insulation instead of the specified single level of insulation. One level is on the
truss top chords (or roof frame level) and the other level is at the truss bottom
chord (or attic floor level). In and of itself, this configuration never works
effectively in tandem even under the best of circumstances. In this case, it

doesn't work at all because the attic space itself has large intake air louvers to
provide large volumes of outside air into the attic space for the purposes of
supplying required combustion and ventilation air to the HVAC units concealed
in the attic.
7. The building has been altered since its original design and construction.
a. There are 2 areas, as reported by Town staff, where a second roof assembly was
added over existing roofs in an effort to resolve or diminish ice accumulation
hazards and related water infiltration problems.
b. A thermal-wire ice-melt system was added similarly as part of efforts to resolve

or diminish ice accumulation hazards and related water infiltration problems.
c. A plywood floor was added to the attic space trusses to improve access to the
HVAC systems in the attics and to allow for attic space storage.
C. Relevant Building Codes:
l. The codes having jurisdiction over the original design and construction back in
1999-2001 was the 1995-96 version of the 1984 NY S Unifonn Fire Prevention and
Building Code.
2, The codes having jurisdiction over the current condition and review of the facility is
the current NYS Building Codes, more specifically the 2015 ICC Existing Building
Code (EBC), ICC Fire Code (FC), and NYS Property Maintenance Code (PMC).
.
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Primary Findines:
A. The building is in a state of advancing structural deterioration at its lower exterior wall
perimeters. More specifically, the bottom of the exterior wood wall plates, studs,
orientated-strand board (OSB) structural sheathing and steel fasteners are rotting from
exposure to moisture.
B. The extent of the conditions of rot cannot be fully determined without more destructive
analysis but based on our review of thermal imaging scans taken during our
investigation, it does appear the conditions are at their worse where exposed by drywall
removals by previous Town investigations. We believe some lesser, if not same form
of deterioration is occurring as all remaining and concealed exterior wall periters.
C. The cause of the conditions of rot is an original design failure. The original 1999 plans
established the finished floor slab of the building was to be at an elevation of 625 feet.
However, the plans provide various elevations for the grade surrounding the building.
On the elevation drawings, the design required that the general grade elevation was to
be 622.5 feet except at door areas which were to be approximately the same 625 feet for
flush floor transitions with no step(s) down. Separate foundation details in the plans
required that the general grade elevation was to be 621.5 feet. And separate civil
engineering site drawings required that the adjacent grade was to be almost the same as
floor level at about 624.5 feet. See Exhibit 01
The confusing, improperly designed, and poorly coordinated specification as to where

the ground elevations were intended to be was very likely caught during construction
activities and quickly became a significant and open problem that faced the designers
and project managers. Most likely, it was determined that the grade needed to be raised
to the approximate floor slab level primarily because the 4 various door locations were
all required to be compliant with barrier-free (bandicap) codes and without steps, and
because the design had no accommodations for separate handicaps ramps to account for
the changes in elevation coming out of the building. Although that remains speculation
on my part, it's clear that someone determined that the conflict in finished grade
specifications was to be resolved by leaving the finished floor elevation at 625 feet and
then setting the exterior grade of the building perimeter at the approximate 624.5 feet
shown in the civil/site drawings and details. See Exhibit 02
However, separate details for the wood wall framing still required that the bottom of the
walls would sit directly on the concrete block foundations to be set at an elevation of
624.33 feet. This put the bottom of the wood, not at the floor slab elevation of 625 feet,
but instead at a lower elevation approximately 6-7 inches below the floor slab
elevation, and more importantly, approximately 2-3 inches below the surrounding grade
consisting of earth and landscaping materials, and approximately 8-9 inches below
grade at door entry and walkway perimeter areas. See Exhibit 03
The only thing that separates the structural wood materials from exposure to the
surrounding ground moisture is the vinyl siding and exterior air barrier, themselves not
materials intended or capable of functioning as moisture barriers in such a manner. In
some instances, we can see where someone must have recognized the basic problem
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and attempted to improve the condition adjacent to door and walkway areas by
installing a wrap of thin-gauge aluminum coil stock at the siding base. Neither the
wood studs or the wall's exterior OSB wood sheathing are pressure-preservative
treated. The wood wall's base plate may be pressure-preservative treated because it's
conditions of rot appears generally less advanced than adjacent stud and sheathing
wood, but I could not verify this. See Exhibit 04
Since that original design failure, compounded by inappropriate construction efforts,

the exterior wood wall surfaces have pretty much been exposed to periodic conditions
of moisture exposure depending on ground and weather conditions, as well as their
particular locations along the building perimeter. The result is what you are
experiencing now. Rotting wood has deteriorated in some locations to the point that
structural material disappeared as a physical element which in turn, has resulted in a
process of vertical collapse of the individual wood studs that serve as structural bearing.
In short order, the same deterioration will also have an adverse effect on the building's
ability to resist lateral loads as well. See Exhibit 05
D. The original design and construction work created a violation of the 1984 (Rev. 1996)
NYS Uniform Building Code applicable at the time, and as follows:
1. Sec. 800.3 Protection Against Deterioration - required thru its sub-referenced

Reference Standard R27-1 that wood wall structures were required to be positioned
at least 8 inches above the surrounding exterior grade. Again, the actual installed
condition is not a positive 8 inches as required. Its actual installed condition is
negative 2-3 inches. It is noted that the same code provision defines conditions of
deterioration to include "... among others, action of freezing and thawing,
dampness, corrosion, wetting and drying, and termites and other destructive
insects". Most of these conditions of deterioration apply to the wall base condition.
2. Sec. 806.2 Exterior Materials - required that "the exterior or covering of

facing
walls... shall be resistant to the causes of deterioration... without loss of strength or
attachment which may render it unfit for use...".
3. Because these conditions were violations of the code at the time of original design
and construction, the configuration does not status as 'pre-existing non-
enjoy
conforming'
under the current code, or what is more commonly referred to as
'grandfathered'.
4. In addition, the configuration and condition is also in violation of the current NY S
Property Maintenance Code.
Secondary Findings:
A. Our review also revealed that the building suffers from a variety of other design and
building performance failures as well. In no particular order, please note the following:
1. The four egress doors from the building were never properly configured in a
manner required by code to prevent them from being obstructed by the
75

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Page 6of 16
accumulations of snow and/or ice during an emergency event. The doors are
required to have measures in the form of a roof cover, recessed alcove
configuration, sidewalk heating, etc. that would prevent doors from properly
swinging open during such weather events. In addition, such conditions can be
fall'
claimed as other related liabilities in 'slip/trip and claims. See Exhibit 02
a. Sec. Means of Egress - required that exit doors to the

765.5(a)(7) "grade-story
exterior shall open on a level grade or landing... (and that) such grade or
landing shall not be less than four inches nor more than 7-3/4 inches below the
level of the doorsill except that the riser (step down) is not required where
means are provided to prevent the accumulation of ice and snow".
b. Sec. 1 101.5 Means of Egress - required that "required exits shall be

separately
accessible (for persons with disabilities)...". This meant that having step downs
at any of the 4 egress locations in this building was not an option due to separate
handicap code requirements.
c. Sec. 1031.3 of the current NYS Fire Obstructions - requires that "a
Code,
means of egress shall be free from obstruction that would prevent its use,
including the accumulation of snow and ice".
2. The building suffers significant heat loss at the roof. In part because the insulation
levels are quite a bit less than what was required by the code at the time. And in
part because the design failed to properly design workable solutions, solutions that
appear to have been made worse by field conditions implemented by the
Contractors and/or Designers after construction started.
Some of these problems have been very visible over the years and are the cause of
the odd snowmelt patterns you see on the roof, the ongoing ice accumulation and
subsequent efforts to fight the ice build-up with snow melt wiring systems and roof
modifications. See Exhibit 06
Other problems remain concealed from general view but are causing some form of
deterioration within concealed spaces of the roof and some wall assemblies.
See Exhibit 07
Each of the problems are also causing excessive energy consumption and in turn,
high heating bills for the building. Again, these problems were caused by flawed
and improper designs and construction for the building. Notable conditions are as
follows:
a. The design intended for the insulation at sloped roof surfaces (shingled roofs)
was supposed to be an R-30. The actual insulation level provided separately at
the attic floors is an approximate and lesser R-19. As previously referenced, the
separate attic roof/ceiling/wall insulation has no additional value because the
overall attic space is equipped with outside air intake systems. This level was
also a violation of the NYS Energy Conservation Code.
See Exhibit 08
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b. The design intended for the insulation at the flat roof areas on the front and back
of the building is confusing, but definitely improper. One part of the design
drawings required it to be an R-30, another part of the same drawings required it
to be an R-19. The actual installed levels are more confusing and worse.
There's everything from an R-11 in some places, to R-19 in others, and R-30 in
still other locations. Select areas were incomplete with gaps which in turn
allowed adjacent areas to become irrelevant by default, simply because these
gaps allow the heat loss to go around the insulation, no matter what the level
may be. See Exhibit 09
Worse, the overall insulation is installed improperly as it pertains to protection

from vapor accumulation and related deterioration. The insulation is fiberglass
with a basic craft paper facing serving as a vapor retarder. This type of
insulation restricts some, but still allows some lesser form of interior vapor to
pass thru to the colder exterior side of the insulation. By both necessity and
code, this vapor needs to be exhausted by means of fresh ventilation air very
similar to a nonnal ventilated house roof. Unfortunately, this building's flat
roofs are not only improperly insulated, they are not ventilated at all. There is
evidence that the adjacent wood framing and roof deck are experiencing early
onset of moisture deterioration, as would be expected. Please note conditions
appear minimal at this time. See Exhibit 07
c. Thermal imaging revealed there are problem areas within concealed wall and
ceiling/roof areas due to missing or damaged insulation. The problems are best
described as periodic in scope and not pervasive thru out the building. But the
flaws are significant enough to be suspicious that some condition of vapor
accumulation, water infiltration and/or insulation gaps will likely need to be

addressed as part of improvements. See Exhibit 10
d. Inspections within open wall and ceiling/roof areas revealed similar problems of
heat loss due to missing, gapped or damaged insulation. Again, the problems
are best described as periodic in nature and not pervasive thru out, but notable
enough to be suspicious that some condition of improvement will be necessary.
See Exhibit 11
3. The wood trusses, pre-engineered wood joists, and paper insulation faces are illegal
in this particular building where they are covered only by the suspended lay-in
ceiling system and panels. Various building codes have long required in building's
with public assembly functions as well as others that exposed wood and paper
facings be covered with interior finish materials with appropriate fire
classifications. Typically, that would be drywall in a building like this. The
suspended lay-in ceiling would be allowed, but only in addition to some basic form
of drywall protection above at the required surface areas. See Exhibit 12
4. The wood trusses were not designed to support a floor to be used for attic storage.
The plans specified that the trusses were required to support only 13 pounds per
square foot and that was only for ceiling loads from below. While it's understood
the trusses were most likely designed to support more weight due to the placement
of the 2 HVAC units within the attic areas, it's highly unlikely they were also
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Page 8 of 16
designed to take on the additional 50 to 100 pounds per square foot depending on
code classification for unforeseen storage intentions. Please note the original plans
only showed small access hatchs and not the pull-down stair assemblies that were
added later. See Exhibit 13
5. Because the project drawings showed the attic insulation at the roof level and not
attic space is intended warm-
the floor, the by design be on the insulation's winter
side, and by default, to be conditioned space (meaning its heated/cooled). By stark
contrast, the same project drawings also intend for the same attic spaces to be
unconditioned (meaning no heating or cooling) and capable of fully allowing
outside air into the attic to serve the combustion and ventilation requirements of the
2 H.VAC units located in the attic. During the
winter, in particular, the attic spaces
simply cannot be both conditioned and unconditioned at the same time. You will
note in the attached exhibits that while the ceiling at the attic space is clearly
insulated, the same insulation barrier is penetrated by numerous outside air

mechanical intakes that not only allow, but intentionally direct cold outside air
around the barriers. See Exhibit 14
6. The design that placed the 2 HVAC units into the attics didn't seem to consider how
the units will be replaced in the future. Its notable that there is no apparent route for
removing the units, or for bringing new units in. The attic access are very small
hatches less than 24 inches wide with folding stairs rated for only very small
loading. See Exhibit 14
With consideration that the units are approximately 15 years old, and with further
consideration that normal service life for such units can run approximately 20 to 25
years, it would seem likely the units will have to be replaced in a relatively near
term and the only likely route for access seems likely to be the removal of the end
walls at the respective exterior attics. It further seems that this future maintenance
problem should be included in considerations related to the current problems being
discussed here.
Corrective Actions:
A. To correct the structural deterioration of the building walls, a series of remediation

steps must be taken that includes both repairs as wells as alterations in the construction
design details. The target work areas are concealed by a variety of wall and ceiling
finishes, electrical and data components, and various equipment, trims and furnishing.
In addition, the current version of the NYS Building Code will require certain upgrades
due to the magnitude of the work and as part of the repair and alteration processes
specifically defmed within the separate NYS Existing Building Code. In general, the
following actions need to be taken:
1. Reconstruct the approximate 4 ft of bottom exterior wall perimeter in a manner that

replaces all the lower wood wall assemblies with pressure treated stud, plate and
sheathing materials, and then seals the below grade po.rtion (approx. 12 -18 inches)
with a layer of self-adhering bituminous membrane and Cellular PVC Trim Board.
In addition, the reconstruction should include raising the bottom position of the
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Page 9 of 16
extension'
wood wall by forming a 'curb of masonry or concrete foundation wall
over the existing block foundation in a manner that raises the wall's base plate to
equal the building's floor elevation. The overall reconstruction will include
jacking and shoring for both temporary support and for re-establishing level
conditions.
The wall reconstruction targets the 4-foot level so that full and complete 4 x 8 foot
pieces of new structural wall sheathing can be used to maintain and improve
structural stability. However, you should note that the work most likely cannot be
limited to the 4-foot level because that will create some stud wall instability. There
will most likely be some need to extend wall studs to fuller heights. Determinations
will need to be made following some more comprehensive design reviews and will
likely need to be considered and modified during reconstruction as well depending

on circumstances encountered. This basic premise will be an important part of
determining what type of contingency funding should be accounted for as part of

the project work's budgeting and will likely continue to evolve as the project work
is planned and comes more into focus.
2. To accommodate wall framing reconstruction, lower levels of electrical and low

voltage systems will need to be temporarily removed and reinstalled and/or
modified, and/or replaced.
3. Portions of walls and slab edge perimeters will need to be reinsulated.
4. Some degree of existing windows will be required to be removed and reinstalled,

and otherwise refurbished to accommodate returns to level and operable conditions.
5. Due to the aged appearance of the existing vinyl siding and subsequent difficulty in
matching the worn color, combined with the need to access window mounting
flanges for window reconstruction and adjustment, as well as other repairs and
improvements noted in this report, its best to plan on replacing all of the vinyl
siding.
6. Some level of interior finish, ceiling systems, and trim repairs and replacements
will be needed as part of efforts to access primary structural repair work.
7. The exterior doors need to be equipped with some solution to meet code
requirements to create exterior configurations that prevent the accumulation of ice
and snow. Recessing the doors will be impractical if not impossible. Adding
mechanical and/or electrical walkway melt systems at the doors will most likely be
technically difficult, impractical, expensive and unreliable. Most likely the concept
of creating new roof covers over the subject doors will not only be most practicable,
but will also provide opportunities for improving the adjacent roof performance
problems as well improving the building's exterior façade.
8. Replace and reconfigure the roof insulation and ventilation assemblies at both the
flat roof front and back areas, as well as the open attic spaces on the 2 wings. Both
these areas are relatively easy to access.
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In addition, smaller areas of the central cathedral ceiling area should be improved.
Although more difficult to access as these areas are concealed behind drywall,
improvement opportunities may be more readily achieved and successful working
from the roof top down as opposed to from the interior side up. Both can be
successful but will require more time and effort to create appropriate design and
engineering solutions.
These same improvements can also be modified in a manner that simultaneously

resolves the problems related to exposed fire-rated facings and exposure within the
building interior.
9. Remove existing suspended ceilings to access exposed paper and wood facings to
be covered with some form of thermal barrier, most likely drywall, as required by
code. A new suspended ceiling systems shall be re-installed or the ceiling may be
converted to finished drywall as opportunities present themselves.
10. Eliminate the floor storage capabilities within the 2 attic spaces. The alterations
should at the most be limited to proving safe access to and around the 2 HVAC
units within.
B. In addition, I am recommending the following actions items also be taken:
1. Consider replacing the 2 attic space HVAC systems now as part of other
improvement work. It would be a shame to have to implement significant exterior
wall and roofing improvements in the near term only to find in a few short years
you need to do it again to get access into the attic spaces for HVAC system
removals and replacements.
It should also be noted that the improvements described above related to new
insulation levels will cause the building to be more energy efficient. This in turn is
going to result in the HVAC units being oversized and inefficient for the improved
building spaces they serve. Determining how to implement a change to smaller

more efficient systems will be much easier and more cost effective as part of the
current work than it will be as part of a separate effort in later years.
Cost Opinions:
Predicting how much time, effort and work will be involved in the repair and/or reconstruction
of the building is difficult at this early stage of review. The single biggest reason is that the
purpose of this study is to determine what's going wrong with the building and then in turn to
offer a prediction for corrective measures that is being made without the benefit of full
planning, design and engineering having yet occurred.
To that end, our approach is to predict the methods for corrective action that are most likely to
be successful, and to do so without benefit of more comprehensive planning, design and
engineering work. Based on our experience, these methods tend to be the ones that do in fact
work out as the best options. However, they do on occasion increase in magnitude due to
unforeseen circumstances and do also on occasion, decrease in magnitude due to benefit of
unforeseen opportunities.
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FILED : ERIE COUNTY CLERK 07/12/2018 09: 37
NYSCEF DOCMrMDhn &nz RECEIVED NYSCEF: 07/12/2018
Town of West Seneca
April 28, 2017
Page 11 of 16
In addition, predicting the costs associated with time, effort and work is also difficult at this
early stage of review. This is in part a reflection of the preliminary nature of the review
previously described, but it's also a reflection that costs are often being predicted sometimes a
year or more before they will be incurred for the most part.
Stated another way, it's very important we advise the users of this report that terms used for
'Budgets'
cost opinions have very distinct meanings when presented by this office. have a
different meaning than 'Estimates', which in turn have a different meaning than 'Bids'. For
example:
l. Budgets - This is a form of cost prediction which relies on the lowest level of
information available. No form of real design, engineering or planning has occurred.
'blueprints'
There are no to get bids from. Its typically not clear what specific year the
work will occur and its less certain what type of market conditions, competitions, or
other related concerns may be in effect in the future. Budgets tend to be more of an
guess'
'expert's best assessment and based on studied review, trends and past
experiences.
2. Estimates - This form of cost prediction starts to work with a more defined scope of
work, and in turn, with more cost certainty. The project work is typically not fully
developed but some time related to research, design, engineering, market analysis, etc.
has had a much more fuller opportunity to develop. Input from different design
consultants such as structural, mechanical, electrical, architectural consultants, etc. has
been initiated. A schedule, Owner's input, bid and contract condition analysis, and
'blueprints'
more importantly, some level of design, preliminary and specification
development has also occurred. Estimates tend to be a more refined 'expert's best
guess'
based on more advanced development of actual design work and known project
conditions.
3. Bids - This form of cost prediction is more definitive because it comes in the form of a
defined contract scope. The cost analysis changes from an expert's

very specifically
guess as to what other separate parties will charge for their time, effort, work and risk
assessments to an actual commitment from those separate parties. To get to a bid
commitment, the Owner must finalize some form of project scoping document in
advance, most typically in the form of detailed designs, scope of work descriptions, bid
and construction contract requirements, project specifications, scheduling requirements,

etc.
'budget'
For our purposes today, this report is presenting a very preliminary assessment. Our
assessment is as follows:
81

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Town of West Seneca
April 28, 2017
Page 12 of 16
A. Structural Repairs:
1. Demolitions:
a. Vinyl siding/soffits/trims
b. Partial exterior wall sheathing
c. Partial wall insulation
d. Partial roof/attic insulation
e. Partial wood stud/plates/blocking
f. Partial interior suspended ceilings
g. Partial electrical disconnects/removals
h. Dumpsters, waste, hauline. removals
$35,800
2. New Work:
a. Temporary protections
b. Temporary shoring/bracing - staged
'curb'
c. New concrete foundation
d. New foundation elements for door covers
e. New perimeter slab insulation
f. New wall P.T. stud framing / general carpentry
g. New wall P.T. blocking/plates
h. New exterior P.T. structural wall sheathing
i. New door cover frame assemblies
j. Revised/reinstalled electrical at walls
k. Revised data/low-voltage systems at walls
1. Window refurbish/repair/reinstalls
m. New cellular PVC trim board/watershed protection
n. New bituminous wall covering protections
0. New wall insulation at exterior walls
p. Spot repair of wall insulation at select areas per thermal imaging
q. New insulated vinyl siding/trim/accessories
r. New interior drywall at exterior walls
s. New window/door millwork/trim
t. New interior paint
u. New suspended ceiling systems
v. New fire-rated ceiling facings
w. Finished electric fixtures and reinstalls
x. Finished floor protections/repairs/replacement/cleaning
S345,700
B. Roofrepairs:
1. Demolitions:
a. Attic insulation removals
b. Attic floor sheathing removals
c. Roof shingle and ice-melt system removals
d. Plywood roof deck removals at center vault assembly
e. Removal of concealed roof/ceiling insulation at center vault assembly
f. Disassemble previous Town Roof Frame Repair work
g. Dumpsters, waste, hauling, removals
S21,000
2. New work:
a. Attic space ventilation modifications (Natural)
b. Attic space ventilation modifications (HVAC Mechanical)
c. New attic insulation at truss bottom chords
d. New roof/ceiling insulation at center truss top chords
e. New roof/ceiling insulation at flat roofjoist assemblies
f. Attic space access hatch safety and insulation modifications
g. New attic space floor / HVAC-access route modifications
h. New plywood roof deck at center vault assembly
i. New insulation at center vault assembly
j. Modifications/reconstruction at dormer assemblies
k. New asphalt shingles at sloped roofs
l. New roof edge metal work/trims
m. New cutters and downspouts
S106,100
82

FILED : ERIE
DOCMr hn
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nz
CLERK 07/12(2018 09: 37 M INDEX NO. 815187 /2017
NYSCEF RECEIVED NY SCEF: 07 /12 /2018

town of West Seneca
April 28, 2017
Page 13 of 16
C. HVAC Change Recommendation:
1. Demolitions:
a. Dis-assemble/remove existing HVAC packaged units from attic spaces
b. Dis-assemble existing combustion air & ventilation mechanical systems
c. Dis-assemble and remove wood frame end walls and related siding for access
d. D_umpsters, waste, hauling, removals
$20,600
2. New work:
a. 4-6 new smaller HVAC units/condensers
b. 2-3 new make-up-air units
c. Revise/reconstruct toilet room exhaust systems
d. Revise/reconstruct duct work systems
e. Reconstruct/refurbish various electrical/mechanical mods
f. Reconstruct/revise wood frame end wall construction
g. New end wall exterior siding
$156,000
D. Cost Opinion Totals:
1. Structural Repairs $381,500

2. Roof Repairs $127,100
3. HVAC Change Recommendation $I76,600
Sub-total $685,200
Design-phase contingency (10%) $ 68,520
Sub-total $753,720
Construction Phase Contingency (15%)$113,058
Sub-total $866,778
Pmfessional Fecs (9%) $ 78,010
Sub-total $944,788
Project Expenses (5%) $ 47,239
Total Alteration and Repair: $ 992,027

83

INDEX NO. 815187 /2 017
FILED: ERIE COUNTY CLERK 07/12/2018 09:37 AMl
Z RECEIVED NYSCEF: 07 /12 /2018
NY SCEF DOCMft
town of West Seneca
April 28, 2017
, Page 14 of 16
E. Cost Opinion for separate option - Replace Building with code required modifications:
l. Scope
Building Demolition
$45,000
Site work - limited

$120,000
Foundation work - litnited

$32,000
Carpentry
Roofing
Siding
Windows/Doors
Finishes
Mechanical/Electrical/Plumbing
Tel/IT/Data/Com
Millwork
Temp Storage /Replacement of FF&E
Etc.
$1,144,000
Sub-total $1,341,000
Design-phase contingçncy (5%) $ 67,050
Construction-phase contingency (10%) $ 140,805
Professional Fecs (9%) $ 139,397
Project Expenses (5%) $ 84,412
Total Reconstruction and Replace: $1,772,664
Notes:
1. This cost opinion assumes the Davis-Bacon and other related NYS Acts regarding prevailing wage and fringe
benefits will apply to the work,
2. This cost opinion assumes the Wicks Law and other NYS laws regarding the use of multiple prime contractors will
apply to the work.
3. Due to the relatively new nature of the existing construction and it having had occurred after the implementation of
various NYS and Federal laws restricting their use, this cost opinion assumes there is no need to account for the
presence, testing and/or removal of hazardous materials.
84

INDEX NO. 815187 /2017
FILED : ERIE COUNTY CLERK 07/12/2018 09:37
NYSCEF DOCMrNFDbn Ebnz RECEIVED NYSCEF: 07/12 /2018
Town of West Seneca
April 28, 2017
Page 15 of 16
Observations / Recommendations:
1. The problems we found in this building related to structure will not improve on their
own without intervention, nor in our opinion will they remain stagnant. With a further
understanding the problems are inherent to an improperly designed and engineered
building, our review shows it is highly unlikely that even a more aggressive and
knowledgeable preventative maintenance program will be successful in stopping the
ongoing deterioration and subsequent onset of structural damage the building is already
starting to experience.
2. The problems we found in this building related to heat loss and related building
envelope energy conservation efficiencies will also not improve without intervention.
While the Town may have had some successes in alleviated past problems related to ice
accumulation, our review shows the improvements were not enough to overcome
significant problems inherent to an improperly designed and engineered building
envelope, primarily at the roof assemblies, and that there is evidence that concealed
conditions of deterioration remain.
3. The problems we found related to health and safety standards at emergency egress
doors do not contribute to building deterioration as previously discussed, but they do
represent potential liabilities to the Town.
4. The problems we found related to the design, configuration and inaccessible nature of
the 2 primary HVAC units are not conditions of specific building deterioration or
potential liability as previously referenced. However, it does represent a pending
maintenance and improvement challenge as well as a separate contributor of problems
related to energy efficiency and systems performance. As such, we advise the
improvement of the condition be considered as part of any other improvements being
discussed within this report.
5. Based on our review, and despite clear and professional efforts to properly maintain the
building, it is our professional opinion this building should be considered a poorly
designed, engineered and constructed building. The finding typically results in a
building that does not provide as long of an effective service life as the building should
have been reasonably expected to enjoy. It also typically results in a building that
consumes more excessive effort and resources to maintain over time.
6. Based on our review, we have determined it would be more cost effective to alter and
repair the existing building than to demolish and reconstruct it.
7. And finally, the cost opinions provided in this report are based on a traditional
Design/Bid/.Build approach to planning, procurement, and construction typical for the
Western New York market. Please be advised there are other approaches to consider
that are both allowed under NYS public procurement rules and which will likely be
more effective in reducing costs for the work.
85

[FILED : ERIE COUNTY CLERK 07/12/2018 09:37 M INDEX NO. 815187 /2 017
NYSCEF DOCMrNehn Ebnz RECEIVED NYSCEF: 07 /12 /2 018

Town of West Seneca
April 28, 2017
Page 16 of 16
Closing:
Thank you for the opportunity to be of assistance in this matter. Please contact me if you have
any questions or require more information.
Respectfully Submitted,
Building Science Services, LLC
Kenneth W. Pearl, R.A.

NYS Architect Registration No. 025221
Attachments: Exhibits 01 thru 14

86
EXHIBIT E - WEST SENECA’S VERIFIED NOTICE OF CLAIM
PURSUANT TO CPLR 214-D [INCORRECT VERSION] [86-90]

FILED: ERIE COUNTY CLERK 07/12/2018 09:37 W INDEX NO. 815187/2017
NYSCEF DOC, No, 10 INGDMEDNTGEElDW:1Q7W M8
AFFIDAVIT OF SERVICE
SUPREME COURT: COUNTY OF ERIE
In the Matter of the Claims of

Affidavit of Service
The Town of West Seneca, New York
Verified Notice of Claim
-against- Pursuant to CPLR 214-d
Kideney Architects, P.C.,

(f/k/a Kideney Architects, Laping Jaeger Associates, P.C.)
STATE OF NEW YORK )

COUNTY OF ERIE) SS:
Michael R, Murray, being duly sworn, deposes and says that he is over 18 years of age and not a party to this
56 4:38PM at 143 Genesee Street, Buffalo, NY 14203,
action; that on the day of December, 2017 at approximately
deponent served the annexed Verified Notice of Claim Pursuant to CPLR 214-d On Kideney Architects, P.C.,
(f/k/a Kideney Architects, Laping Jaeger Associates, P.C.), the defendant named herein, in the following manner:
_Individual By delivering to and leaving with personally, a true copy thereof, and that he knew
the person so served to be the person mentioned and described in said
1Corporation By delivering to and leaving with Raymond Bednarski, a principal at Kidney Architects, P.C.,
(f/k/a Kideney Architects, Laping Jaeger Associates, P.C.) and he knew the person so served to
be the person mentioned and described in said Verified Notice of Claim Pursuant to CPLR 214-d.
Responsible By delivering to and leaving with , a true copy hereof, a

Party person of suitable age and discretion. Said premises being the defendant's (dwelling place)(usual
place of abode)(place of business within the State of New York.
__Substituted By affixing a true copy thereof to the door of said premises the same being the
Service defendants (dwelling place)(usual place of abode)(place of business within the State of New
York.
__Mail Deponent also served a copy of the by depositing a true copy of the same
in a post-paid, properly addressed envelope in an official depository under the exclusive care and
custody of the United States post office in the State of New York
1 Previous Deponent had previously attempted to serve the above-named defendant(s) pursuant to Attempts
CPLR Sec 308
at 143 Genesee Street, Buffalo, NY 14203 on the 1" day of December, 2017 at 9:15 AM
at 143 Genesee Street, Buffalo, NY 14203 on the 45 day of December, 2017 at 3:00 PM
1Descrip. The person served would be described as approximately: _ji8 Years of age 2_.50,__ Lbs
6 Ft 3 In ___X_male sfemale Gray hair White skin Brown eyes
X Military To my best knowledge, inf0sination and belief the said defendant at the time ofservice was not
,//'
engaged in military service of the Unir State.
Nof ry ublic
PHYt1IS E. HOSKINS
NOTARYPU:Nic. ny et :. .W YokK
QUAb ' . - udlY /
87

INDEX NO. 815187/2017
1 fdÈF C, 1@, 110 RECEIVED NTSF.E1F:: XPJ//1U2//ZO1D8
STATE OF NEW YORK

-against- VERIFIED NOTICE

OF CLAIM PURSUANT
TO CPLR 214-d

(f/k/a/ Kideney Architects, Laping Jaeger Associates, P.C.)
TO: Kidency Architects, P.C.

(f/k/a Kidency Architects, Laping Jaeger Associates, P.C.)
143 Genesee Street
Seneca"
PLEASE TAKE NOTICE that the Town of West Seneca, New York ("West or
"Claimant"), has claims and hereby gives notice of its claims against Kideney Architects, P.C.
(f/k/a Kidency Architects, Laping Jaeger Associates, P.C.) ("Kideney") for damages sustained in
connection with Kideney's performance of professional landscape architectural services for the
construction of the Charles E. Burchfield Art & Nature Center located at 2001 Union Road in the
Town of West Seneca, County of Erie, State of New York (the "Art & Nature Center"). In
support of its claims, West Seneca states, as follows:
1. The name and post office address of the Claimant is Town of West Seneca, New
York, 1250 Union Road, Suite 2, West Seneca, New York 14224. The name and post office
address of Claimant's attorney is John J. Fenz, Esq., Town Attorney, Town of West Seneca, New
York, 1250 Union Road, West Seneca, New York 14224.

88

INDEX NO. 815187/2017
W . 110 ascsawmm smanam: 102//n2//2m1/8
2. Upon infonnation and belief, Kideney, at all relevant times, was and is an
architectural firm licensed in the State of New York.
3. West Seneca's claims are for damages and harm suffered as a result of latent
defects proximately caused by Kideney's negligence in providing professional design services
for construction of the Art & Nature Center including, but not limited to, its failure to design the
Art & Nature Center to withstand site conditions, including inadequate design of the floor slab,
inadequate design of the grade surrounding the Art & Nature Center, inadequate design of the
ground elevation, and inadequate investigation of the real property. The referenced professional
architectural services were performed by Kideney more than 10 years prior to the date of these
claims.
4. As a result of Kideney's negligence in the performance of its professional design
services, significant property damage has occurred and continues to occur to the Art & Nature
Center. The errors or omissions and other negligence have additionally exposed members of the
public to risk of bodily injury as the public facility structure continues to fail.
5. West Seneca has been damaged in an amount which has yet to be fully
ascertained, but which is believed to exceed $1,772,664.00. West Seneca's damages continue to
accrue.
WHEREFORE, Claimant West Seneca hereby gives notice to Kideney pursuant to NY
CPLR 214-d of its claims in an amount which exceeds $1,772,664.00.
2
89

INDEX NO. 815187/2017
# 1W.· 10 SSREEGITJ If¾SESle: 12/AW4t!D0.P8
Dated: Novembert.S_, 2017

West Seneca, New York
Jol L Febz, Esq.

A orney For Claimant
1250 Union Road
3
90

I N DEX NO . 8 1 5 1 8 7 / 2 O17
[__ RK D2/12/2 018 09: 3.7 224
lW IF I .. 15,. 10 ESCEINEiIlD N16SEEP.: 12//lPJ#2X1178
VERIFICATION
STATE OF NEW YORK )

)
COUNTY OF ERIE ) SS:
John J. Fenz, Esq., being duly sworn, deposes and says that he/she is an individual who
currently resides in the Town of West Seneca, County of Erie, State of New York; that he/she is
the Town Attorney of the Town of West Seneca, New York, that he/she has read the forgoing
Verified Notice of Claim and knows its contents thereof; that the same is true to his/her own
knowledge, except as to the matters therein stated to be alleged upon information and belief and
that as to those matters, he/she believes them to be true.
Sw9rn to before me this

gzfday of November, 2017.
Notary Public
AUNA N. IRWIN
of New York
Motary Public. State
Qualified in Erie County f
Expires ']/f
My Commission
91
EXHIBIT B - AFFIDAVIT OF BRIAN LOUIS, R.A.,
DATED SEPTEMBER 4, 2018 [91-92]

STATE OF NEW YORK

____________________________________________..____________________
Plaintiff
vs. AFFIDAVIT
Index No. 815187/2017

Defendant
..._____________________________________________________________
STATE OF NEW YORK}

COUNTY OF ERIE } ss.
BRIAN LOUIS, R.A., being duly sworn, deposes and says:
1. That I am a registered architect and President of Louis Design Solutions
Architecture, LLC, the Defendant in the above entitled action.
2. I reviewed the allegations contained in the Town of West Seneca's Verified
Complaint and the attachments. I have also reviewed file materials in the possession of
Louis Design Solutions in connection with the Charles E. Burchfield Nature & Art Center.
3. In November 1998 my company prepared the architectural drawing portion
of the construction drawings for the Burchfield Center. Louis Design Solutions then
continued to provide architectural services to the Town of West Seneca in connection with
the construction of the Burchfield Center as a sub-consultant to Nussbaumer & Clarke, Inc.
92

4. According to the Complaint, in approximately July 1999, construction of the
Burchfield Center began, and in March 2002, the Burchfield Center building was complete.
Louis Design Solutions has not provided any architectural or other services in connection
with the Charles E. Burchfield Nature & Art Center in over ten years.
BRIAN LOUIS

day of ex -A·( , 2018 innun,,,
NO. 01PE6294782 *: E
IE TY
ottiry Public ..
93
AFFIDAVIT OF MATTHEW D. HOLMES, ESQ. IN OPPOSITION TO MOTION
TO DISMISS, DATED SEPTEMBER 27, 2018 [93-94]

STATE OF NEW YORK

Plaintiff
-against-
AFFIDAVIT IN
OPPOSITION TO MOTION
TO DISMISS
Index No. 815187/2017

Defendant
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
MATTHEW D. HOLMES, ESQ., being duly sworn, deposes and says that:
1. I am an associate attorney
at Ernstrom & Dreste, LLP, attorneys for the Town
of West Seneca ("West Seneca") and have reviewed all of the project records that are in the
possession of the Town that relate to the construction of the Charles E. Burchfield Nature &
"Project"
Art Center (the or the "Burchfield Center"). As such, I am thoroughly familiar
ERNS
LLP
W1th the facts and circumstances at issue.
SN
2. I make this affidavit in opposition to Louis Design Solutions Architecture,
Sa205c R
LLC's (f/k/a Louis Design Group) ("Louis Design") motion to dismiss pursuant to CPLR §§
214(6) and 3211(a)(5).
1 of 2
94
3. West Seneca duly filed a Notice of Claim against Louis Design pursuant to
CPLR §214-d prior to commencing this action. Attached hereto as Exhibit 1 is a true and
complete copy of West Seneca's Notice of Claim.
4. West Seneca commenced this action by the filing of a Summons and Verified
Complaint on July 12, 2018. Attached hereto as Exhibit 2 is a true and complete copy of
the Summons and Verified Complaint.

Z_4h
day Of September, 2018
Notary Pub c
Hailey E Beers

Monroe - No. 01BE6357714
County
Commission Expires:April 24, 20.2-I
ERNSTROM
&DR§STE
925 CLINTON SQUARE

ROCHESTER, NY 14604
2 of 2
95
EXHIBIT A - VERIFIED NOTICE OF CLAIM PURSUANT TO CPLR 214-D
(CORRECT VERSION) [95-97]
FILED: ERIE COUNTY CLERK 10/26/2017 10:46 AM INDEX NO. 815187/2017

1 of 3
96

2 of 3
97

3 of 3
98
EXHIBIT B -
SUMMONS AND VERIFIED COMPLAINT
(REPRODUCED HEREIN AT PP 28-90)
99
AFFIDAVIT OF JOHN FENZ, ESQ. IN OPPOSITION TO MOTION

STATE OF NEW YORK

Plaintiff
-against-
AFFIDAVIT IN
TO DISMISS
Index No. 815187/2017
LOUIS DESIGN SOLUTIONS ARCHIECTURE, LLC

Defendant
STATE OF NEW YORK )
COUNTY OF ERIE ) ss:
JOHN FENZ, ESQ., being duly sworn, deposes and says that:
1. I am the Town Attorney for the Town of West Seneca ("West Seneca") and
have reviewed all of the project records that are in the possession of the town that relate to
"Project"
the construction of the Charles E. Burchfield Nature & Art Center (the or the
"Burchfield Center"). As such, I am thoroughly familiar with the facts and circumstances
ERNS
LLP
ÊnN
2. I make this affidavit in opposition to Louis Design Solutions Architecture,
nocu SN 04
LLC's (f/k/a Louis Design Group) ("Louis Design") motion to dismiss pursuant to CPLR
§§ 214(6) and 3211(a)(5).
1 of 5
100
LOUIS DESIGN'S WORK ON THE PROJECT
3. The Town had no contract or contractual

relationship with Louis Design to
perform design related services for the Project.
4. Instead, Louis Design served as a sub-consultant to Nussbaumer & Clarke,
Inc. ("NCI") in connection with the Project, and agreed to provide construction drawings
and architectural work on behalf of NCI.
5. I have reviewed the Affidavit of Brian Louis, R.A., which correctly notes
that Louis Design served as a sub-consultant to NCI in connection with the Project.
6. During the course of the Project, Louis Design provided NCI with
professional architectural design services and provided NCI with advice,
recommendations, and drawings to support the design and ultimate construction of the
Project.
7. Attached hereto as Exhibit A are copies of selected documents for the
Burchfield Center that were signed and sealed by Louis Design.
8. Louis Design was involved with the design of and provided professional
architectural services as it related to the grade surrounding the Burchfield Center.
9. Louis Design was also involved with the design of and provided
professional architectural services as it related to the ground elevation surrounding the
Em9s
Ê É Burchfield Center.
10. As further discovered by the Town, issues relating to the grade and ground
925 CLINTON SQUARE
ROCHESTER, NY 14604
elevation caused the damage to the Burchfield Center.
DAMAGE TO THE BURCHFIELD CENTER
11. In or about January 2017, the Town first noticed unusual building damage
and structural deterioration at the Burchfield Center.
2 of 5
101
12. As a result, the Town retained the services of Building Science Services,
LLC to investigate the cause and extent of the damage.
13. On April 28, 2017, Building Science Services, LLC prepared a report with
respect to the cause of the damage to the Burchfield Center (the "Report"). A copy of the
Report and its relevant exhibits are attached hereto as Exhibit B.
14. The Report determined that the Burchfield Center was improperly designed
and constructed and that the cause of the current

property damage was an original design
failure.
15. The Report also determined, among other things, that the "confusing,
improperly designed, and poorly coordinated specification as to where the ground
elevations were intended to be was very likely caught during construction activities and
quickly
became a significant and open problem that faced the designers and project
managers,"
and that "it's clear that someone determined that the conflict in finished grade
details."
shown in the civil/site drawings and
16. According to Building Science Services, LLC, the original design created a
violation of the then applicable 1984 (Rev. 1996) NYS Uniform Building Code, and the
ERNSTROM
&DR STE configuration and condition and the Burchfield Center is in violation of the current NYS
925 CLINTON SQUARE Property

Maintenance Code.
ROCHESTER, NY 14604
17. Most importantly, the Town learned that the improper design setting the
grade and ground elevations around the Burchfield Center led to the exterior wood wall
surfaces exposed to periodic conditions of moisture for years, and that exposure
being
caused the current damage to the Burchfield Center.
3 of 5
102
18. The Town had no prior knowledge of the property damage to the Burchfield
Center because it took years of repeated exposure to manifest.
19. Based on the Report, the Town determined that there was a substantial basis
in law to believe that Louis Design's negligence was a cause of the property damage to the
Burchfield Center.
STATUS OF THE BURCHFIELD CENTER
20. As presently ascertained, the Burchfield Center is

only capable of limited
use and has experienced, among other things, the following property damage: wall
settlement manifested by locking hardware that bursts off double hung windows, a
significant amount of differential wall settlement near window locations, wood rot at the
bottom of the walls of the Burchfield Center, and overall differential settlement of the stud
walls to the extent that collapse is not out of the question.
21. With winter approaching, the Burchfield Center will be consistently
exposed to rain and snowmelt that will continue to rot the wood at the bottom of the walls
and further damage the structural integrity

of the Burchfield Center.
22. Contrary to any allegations stating otherwise, the Town has suffered
property
damage to the Burchfield Center and is alleging that the Burchfield Center has
suffered property damage.
EgN9S
925 CLINTON SQUARE

ROCHESTER, NY 14604
4 of 5
103
JOl-
F Z., ESQ.

42_d'
day of September, 2018
Notary Public
AttNAN.IRWIN
of New York
Public, State
Motary
Qualified in Erie Cou
Commission Expire
My
ERN9S
925 CLINTON SQUARE

ROCHESTER, NY 14604
5 of 5
-
TOWN OF WEST SENECA JOB # B-9902
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_ 98n2-T SHEET
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EXHIBIT A - COPIES OF SELECTED DOCUMENTS FOR BURCHFIELD CENTER,
105

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BUILDING SCIENCE SERVICES, LLC’S APRIL 28, 2017
REVIEW OF CONDITIONS AND REPORT OF FINDINGS
116
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IE COUNTY CLERK 09/27/2018 04:50 PM INDEX NO. 815187/2017
O. 20 RECEIVED NYSCEF: 09/27/2018
EXHIBIT 1D - PHOTOGRAPH
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IE COUNTY CLERK 09/27/2018 04:50 PM INDEX NO. 815187/2017
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132
ORDER TO SHOW CAUSE, DATED MARCH 19, 2019 [132-133]
FILED: ERI COUNTY CLERK 03 19 2019 04:36 PM INDEX NO. 815187/2017
NYSCEF DOC. NO 58 RECEIVED NYSCEF: 03/ 9/2019
STATE OF NEW YORK

SUPREME COlJR'f COUNTY OF ERIE
Present: Hon. Joseph R. Gtownia, J.S.C.

------------·--·
Plaintiff
-against-
Index No. 815187/2017

ORDER TO SHOW CAUSE
LOUIS DESIGN SOLUTIONS ARCHITECTURE, LL,C

(t/k/a Louis Design Group)
Defendant
PLEASE TAKE NOTI.CE, that upon the filing and review of the Affidavit of
Matthew D. Holmes, Esq., including all mmcxcd exhibi1s, other papers filed in this matter,
and the accompanying Memorandum of Law, it is hereby:
. . •9. RDERED, that Defendant SHOW CAUSE before this Court on the
."" day of
ll:.
tL-P"-v(
'
--Mnrth, 2019, at a.m/p.m., or such other dale and time as the Court may
subsequently why the Court should not issue an Order settling the Plaintiff's
Proposed Record on Appeal pursuant to 22 NYCRR §1000.7(b), 22 NYCRR
925 CLINTON SQUARE §1250. 7(b )( 4) and CPLR §5526, ct. seq., and for such other and further relief as this Court
ROCHESTER NY 14604
deems just and proper; and it is further.
ORI>EH.En, that service of a copy of this Order to Show Cause, together with
copies of the papers upon which it is granted, made upon counsel tor the Defendant by
1 of 2
133
FILED: ERIE COUNTY CLERK 03 19 2019 04:36 PM INDEX NO. 815187/2017

NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/ 9/2019
1
//
email and overnight mail, on or before ____ ,20 19 shall be deemed good and sufficient
service; and it is further
ORDERED, that Defendant shall serve responsive papers so that they arc
delivered to counsel for PlaintifTno later than three (3) business days bdt)l'C the return
date; and it is further
ORJ)ERED, that any reply papers shall be served one business day prior to the
return date of this Motion via the online CM/ECF system.
SO ORDERED:
MAR
.ERNSTHOM
&0l1[fSTE
925 CUNTON SQUARE

HOCHESTER, NY 14604
2 of 2
134
AFFIDAVIT OF MATTHEW D. HOLMES, ESQ., IN SUPPORT OF MOTION
TO SETTLE THE RECORD ON APPEAL [134-137]

1 of 4
135

2 of 4
136

3 of 4
137

4 of 4
138
EXHIBIT 1 -
ORDER AND JUDGMENT, DATED DECEMBER 3, 2018
EXHIBIT 2 -
NOTICE OF APPEAL, DATED DECEMBER 20, 2018
139
EXHIBIT 3 - PROPOSED RECORD ON APPEAL [139-330]
New Unrk 5npreme (Enurt
Appellate Binistan-3|tnurtly Bepartment
Docket No.:
CA 18-02366
Plaintiff-Appellant,
- against -

(f/k/a Louis Design Group),
Defendant-Respondent.
RECORD ON APPEAL

925 Clinton Square
(585) 473-3100
jdreste@ed-llp.com
mholmes@ed-llp.com

Attorneys for Defendant-Respondent
496 Main Street
(716) 854-1744
hilary@burgiocurvin.com
Erie County Clerk's Index No. 815187/2017

140

STATE OF NEW YORK

Plaintiff
-against-
Index No. 815187/2017

Defendant
STATEMENT PURSUANT TO CPLR 5531
1. The action (the "Action") is identified by Index Number 815187/2017.
2. The full names of the original parties to the Action are Plaintiff The Town
of West Seneca and Defeñdañt Louis Design Solutions Architecture, LLC (f/k/a Louis
Design Group) ("Louis Design").
3. On or about September 30, 2017, Plaintiff, the Town of West Seneca, duly
served on Defendant, Louis Design, a Verified Notice of Claim Pursuant to CPLR 241-d.
Copies of the Verified Claim Pursuant to CPLR 241-d and the accompanying Affidavit of
Service were filed in the Erie County Clerk's Office on October 26, 2017.
4. The Action was commenced in the New York State Supreme Court, Erie
County.
5. This Action was commenced on July 12, 2018 when the Plaintiff filed a
Summons and Complaint with the Erie County Clerk's Office.

141

ii
6. The nature of the action is for a money judgment for property damage
suffered by Plaintiff as the result of, among other things, the improper design of a building
by Defendant.
7. This appeal is from a Decision and Order of the Hon. Joseph R. Glowina,
J.S.C. entered in the Erie County Clerk's office on December 3, 2018.
8. This appeal is on a full printed record.

142

iii
TABLE OF CONTENTS
Page
Statement Pursuant to CPLR 5531 i
Notice of Appeal, dated December 20, 2018, with Affidavit of Service 1
Order and Judgment by the Honorable Joseph R. Glownia, J.S.C,

dated December 3, 2018, Appealed From..................... .... ... ............... 4
Notice of Entry of Order and Judgment, dated December 7, 2018 6
Notice of Motion to Dismiss, dated September 4, 2018.... ....... 9
Attorney Affirmation of Hilary C. Banker, Esq., in Support of Motion to
Dismiss, dated September 4, 2018 11
Exhibit A - Summons and Verified dated

Complaint, July 11, 2018 16
Exhibit A- Nussbaumer & Inc. Proposal Letter... ..................... 26

Clarke,
Exhibit B - Nussbaumer & Clarke, Inc. Supplemental Proposal

Letter................... ......... 30
Exhibit C - June, 1999 Construction Drawings.................. . .............. 32
Exhibit D - Building Science Services, LLC's April 28, 2017 Review

of Conditions and Report of Findings....... .................. 58
Exhibit E - West Seneca's Verified Notice of Claim Pursuant to

CPLR 214-d (incorrect version)....................................................... 74
Exhibit B - Affidavit of Brian Louis, R.A., dated September 4, 2018 79
Defendant's Memorandum of Law in Support of Motion to Dismiss, dated

September 4, 2018 ........................................................... .................. 81
Affidavit of Matthew D. Holmes, Esq. in Oppõsition to Motion to Dismiss,

dated September 27, 2018 .............................. 90
Exhibit A - Verified Notice of Claim Pursuant to CPLR 214-d (correct version).......... 92
Exhibit B - Summons and Verified Complaint (reproduced herein at
pp 16-78) ............................. .............. 95
Affidavit of John Fenz, Esq. in Opposition to Motion to Dismiss, dated

September 27, 2018 ........................... ............ ..... ............... 96
Exhibit A - Copies of Selected Documents for Burchfield signed

Center,
and sealed by Louis Design .......................... ................ 101
143

iv
Page
Exhibit B - Building Science Services, LLC's April 28, 2017 Review of

Conditions and Report of Findings (reproduced herein at pp 58-73).......... 112
Exhibit l a - Drawing 113
Exhibit l b - Drawing... 114
Exhibit Ic - Photograph 115
Exhibit Id - Photograph......... ..... . , 116
Exhibit le - .... 117

Drawing
Exhibit If - 118
Drawing
Exhibit 2a - Photograph...... 119
Exhibit 2b - Photograph..... .................. 120
Exhibit 2c - Photograph....................... .. ......... 121
Exhibit 3a - Photograph .............. .... 122
Exhibit 3b - Photograph 123
Exhibit 3c - Photograph 124
Exhibit 4a - Photograph 125
Exhibit 4b - Photograph 126
Exhibit 5a - Photograph.......... 127
Exhibit 5b - Photograph.............. ... .......................... 128
The Town of West Seneca, New York's Uniform/Joint Memorandum of Law

in Opposition to Motion to Dismiss of All Defendants and in Support of
Its Motion to Amend the Complaint Against Nussbaumer & Clark, Inc.,
dated September 27, 2018 129
Reply Memorandum of Law, dated November 9, 2018...... . . ... 149
Transcript of Oral Argument of Motion to Dismiss, dated November 16, 2018 .. 164
Certification of Settlement of Transcript Pursuant to CPLR 5525(c).. - .............. 186
Order Settling Record, dated ...................... 187

144

NOTICE OF APPEAL, DATED DECEMBER 20, 2018,

WITH AFFIDAVIT OF SERVICE [1-3]
|FILED : ERIM COUNTY CLERK 12 / 2 0 / 2 0 18 0 2 : 0 9 HDEX NO. 815187 2017

P1d
F1118£WA1693LE14(EWIVISION - 4TH DEPT 12/21/2018 09:18 AM) RECEIVED NYSCEF: 12 f ald-W1ff
NYSCEFDOC.NO. 1 RECEIVED
NYSCEF:12/21/2018
STATE OF NEW YORK

Plaintiff,
v. NOTICEOF
APPEAL
LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC Index No.:

815187/2017
Defendant.
Suprcmc Court in and for the Fourth Department, each and every part of the December 3,
2018 Order & Judgment of the .Honorable Joseph R. Glownia, J.S.C. that granted Louis
Design Soluties Architecture, LLC's (f/k/a Louis Design Group) ("Louis Design")
motion to dismiss West Seneca's Complaint, which Order & Jud guest was rendered at a
Special Term of the Supreme Court held in and for the County of Erie at the Erie County
Courthouse, located at 92 Franklin Street, Buffalo, New York 14202, on November 16,
2018. A copy of the Decersber 3, 2018 Order & Indg-cnt is attached hereto as Exhibit A.
925cLINTONSQUARE
ROcHESTER,NY14604
145

INDEX NO. 815187 /2017

F ILED : ERI COUNTY CLERK 12 / 2 0 / 2 018 0 2 : 0 9 M)
NYSCEF DOC. NC 43 RECEIVED NYSCEF: 12/20 '2018
DATED: December 20, 2018

Rochester, New York
ERNSTROM & D STE, LLP

925 Clinton Square
Phone: (585) 473-3100

496 Main Street
Phones: (716) 854-1744
E s
925CUNTONSQUARE
NY14604
ROCHESTER,
2 of 2
146

(FILED: ERIE CCUNTY CLERK 12/20/2018 03:09 PNG . INDEXNO, 815 87/2017
NYSCEFDOC. NO. 4S RECEIVEDNYSCEF:12 20/2018.
STATE OF NEW YORK


SERVICE VIA
1ST CLASS MAIL
-against-
Index No. 815187/2017
LOUIS DESION SOLUTIONS ARCHITECTURE, LLC

Defendant.
STATE OF NEW YORK )
COUNTY OF MONR.OE )
HAILEY BEERS, duly sworn, deposes and says that she resides in the Town of
being
Clarkson; the age of eighteen years of age; that she is a Legal Sccrctary
that she is over
with the law firm of Ernstrom & Dreste, LLP, attorneys for Plaintiff, Town of West
20th
Seneca; that on the day of December, 2018 before 6:00 p.m., deponent served a true
copy of NOTICE OF APPEAL via electronic filing with the New York State Courts
Electronic Filing system and by causing the same to be delivered to an official depository
of the U.S. Postal Service within the City of Rochester, County of Monroe, State of New
York to:

496 Main Street
HAILEY E, B S
RNSTROM .
STE Sworn to before me this
O 2018
day of December,
925CUNTONSQUARE
NY14604
ROCHESTER,
Kayleigh Zapf
LMngston County - No. 01ZA6363888
Commission Expires September 5, 202.1
1 of 1
147

ORDER AND JUDGMENT BY THE HONORABLE JOSEPH R. GLOWNIA, J.S.C,

DATED DECEMBER 3, 2018, APPEALED FROM [4-5]
FILED : ERIE COUNTY CLERK 12/03/2018 0 4 : 52 INDEX NO. 815187/2017

PH
NYSCEF DOC. NO 41 RECEIVED NYSCEF : 12 /03/2 18

Courthouse located in the City of Buffalo
1602
New York on the day of November,
2018
PRESENT: HON. JOSEPH R. GLOWNIA. J.S.C.

Justice Presiding
STATE OF NEW YORK

----______________._______
Plaintiff
index No. 815187/2017
ORDER & JUDGMENT
L0015 DESIGN SOLUTIONS ARCHITECTURE, LLC

Defendant
Defendent, LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC, by its attorneys,
BURGIO, CURVIN & BANKER, having moved this Court for an Order pursuant to CPLR R.
321I(a)(5) dismissing Plaintiff's Complaint on the ground that the action was not commenced
within the applicable statute oflimitations, and said motion having been opposed by Plaintiff THE
TOWN OF WEST SENECA, NEW YORK, by its attorneys, ERNSTROM & DRESTE, LLP;
and
NOW, upon the Notice of Motion of Defendant LOUIS DESIGN SOLUTOINS
1 of 2
148

ERIE INDEX NO. 815187/2017

F ILED : COUNTY CLERK 12 / 03 / 2 018 0 4 : 5 2 PM|
NYSCEF DOC. N . 41 RECEIVED NYSCEF: 12/03/2 18
ARCHITECTURE, LLC, dated September 4, 2018, the Affirmation of Hilary C. Banker, Esq.,
dated September 4, 2018, with attached Exhibits A and B, including the Affidavit of Brian Louis,
R.A., swom to on September 4, 20l8, all submitted in support of the aforesaid motion; and
. . Uponjhe Affidavit in appasitiün to motion to dismiss of Matthew D. Holmes, Esq., sworn
to on September 27, 2018, with Exhibits 1 and 2 attached thereto, and the Affidavit in opposition
of John Fenz, Esq., sworn to on September 27, 2018, with Exhibits A and B attached thereto, all
submitted in opposition to the aforesaid motion; and
NOW upon hearing BURGIO, CURVIN & BANKER, Hilary C. Banker, Esq., of
counsel in support of the motion on behalf of Defendant LOUIS DESIGN SOLUTIONS
ARCHITECTORE, LLC; upon hearing ERNSTROM & DRESTE, LLP, Matthew D. Holmes,
SENECA, NEW YORK;
AND, after having due deliberstion upon the matters, it is hereby
OR DERED, ADJUDGED AND DECREED, that the motion on behalf of Defendant,
LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC, is hereby granted in its entirety; and
it is further
ORDERED, ADJUDGED AND DECREED, that Plaintiffs Complaint is dismissed.
HO $fEÉH R. GLOWNIA J S.C.
ENTER:
2 of 2
149

NOTICE OF ENTRY OF ORDER AND JUDGMENT, DATED DECEMBER 7, 2018 [6-8]

INDEX NO. 815187/20 t7
(FILED : ERIE COUNTY CLERK 12 / 0 7 / 2 0 18 0 3 : 2 4 PM)
NYSCEF DOC. NO . 4 2 RECEIVED NYSCEF: 12/07/20 t8
STATE OF NEW YORK

SUPREME COURT ; COUNTY OF ERIE
Plaintiff
NOTICE OF ENTRY
Index No. 815187/2017

vs,

Defendant
PLEASE TAKE NOTICE that the within is a true copy of an Order & Judgment duly entered in
the office of the Clerk of the County of Erie on December 3, 2018.
Dated: December 7, 2018
Hil ry C. Baffker Esq

Burgios Curvin & Banker
496 Main Street
(716) 854-1744
To: John W. Dreste, Esq..

1 of 3
150

ERIE COUNTŸ CLERK INDEX NO. 815187/2017

(f1LED: 12/_07/2018 03 : 2 4 PM
INDEX NO. 815187/2017
(FIL2D: ERIE COUNTY CLERK 12f0372018 04 : 52 PI4
NYSCEF DOC. NO 41 RECEIVED NYSCEF: 12/03/2Ç1$
At a Special Term of the SupremeCourt, held

in and for the County of Eric. at the
Cotuihouse located in the City of Buffalo.
New 16*
York, on the day of Novembers
2018.
PRESENT: HQN.JOSEPH R. GLOWNIA.18.C.

ustice Presiding
STATE OF NEW YORK

Plaintiff
Index No. 815187/2017

vs.
ORDER & JUDGMENT

Defendant
Defendant, LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC, by its attomeys.
321 l(a)(5) dismissing Plaintiff s Complaint on the ground that the action was not commenced
within the applicable statute of limitations. and said motion having been opposed by Plaintiff THE
TOWN OF WEST SENECA, NEW YORK, by its attorneys. ERNSTROM & DRESTE, LLP;
and
NOW, upon the Notice of Motion of Defendant LOUlS DESIGN SOLUTOINS
1 of 2
2 of 3
151

IFŽLED: ERIE COUNTY CLERK 12/07/20X8 03 : 2 4 INDEX NO. 815187/2017

Ply
: ERIE INDEX NO. 815187/2 17
FILED COUNTY CLERK 12/03/2018 04: 52 PM|
NYSCEF DOC. n . 41 RECEIVED NYSCEF: 12/03/2 18
0 ARCHITECTURE, LLC, dated September 4. 2018, the AftimTation of Hilary C. Banker, Esq..
dated September 4. 2018, with attached Exhibits A and B, including the Affidavit ofBrian Louis.
R.A., sworn to on September 4, 2018, all submitted in support of the aforesaid motiont and
Upon the Affidavit in opposition to motion to dismiss of Matthew D. Holmes, Esq., sworn
y to on September 27, 2018, with Exhibits | and 2 attached thereto, and the Affidavit in opposition
of John Fenz, Esq.. sworn to on September 27, 2018, with Exhibits A and B attached thereto. all
submined in opposition to the aforesaid motion; and
ARCHITECTURE, LLC; upon hearing ERNSTROM & DRESTE, LLP,Matthew D. Holmes,
SENECA, NEW YORK;
AND, after having due deliberation upon the matters.it is hereby
it is further
ORDERED, ADJUDGED AND DECREED, that Planjpff s Complaint is dismissed.
DEC 03 2018
HON.JO5fEP11 R. GLOW NIA, J.S.C.
ENTER:
2 of 2
3 of 3
152

NOTICE OF MOTION TO DISMISS, DATED SEPTEMBER 4, 2018 [9-10]

INDEXNO. 815187/2þ17
NYSCEFDOC. NO. 12 RECEIVEDNYSCEF:09/04/2 18
STATE OF NEW YORK

Plaintiff
vs. NOTICE OF MOTION
Index No. 815187/2017

Defendant Oral Argument Reqüésted
MOTION MADE BY· CURVIN & BANKER

BURGIO,
Attorneys forDefendant, LOUIS
DESIGN SOLUTIONS
ARCHITECTURE, LLC
DATE. TIME AND PLACE
FOR HEARING , 2018 at 9:30 a.m., New York
State Supreme Court, County of Erie, Part
, Buffalo, New York 14202, before
Honorable
SUPPORTING PAPERS: Affinnation of Hilary C. Banker, Esq., dated

September 4, 2018, and all of the pleadings
and proceedings had herein.
RELIEF REQUESTED; Dismissal of Plaintiff s Complaint on the

ground that it was not commenced within
the applicable statute of limitations.
GROUNDS FOR RELIE2 CPLR Rule 3211(a)(5); CPLR §214(6)
1 of 2
153

10
INDEXNO. 815187/2 317

NYSCEFDOC. NO. 12 RECEIVEDNYSCEF: 09/04/2318
PURSUANT TO CPLR 2214(b), answering affidavits and Notices of Cross-

Motions, if any, must be served upon the undersigned at least seven (7) days before the
return date of this motion.

/'
Buffalo, New York
HILARY C.fANKER,ES
496 Main Street
(716) 854-1744

925 Clinton Square
(585) 473-3100
AFFIRMATION OF SERVICE
1, HILARY C...BANKER, ESQ., affirm, pursuant to CPLR 2106, that a true copy
of the foregoing Notice of Motion and supporting Affirmation was served upon all
counsel above via the NY$CEF System on September 4, 2018.

Buffalo, New York
HILARy/C. BANKER
2 of 2
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ATTORNEY AFFIRMATION OF HILARY C. BANKER, ESQ., IN SUPPORT

OF MOTION TO DISMISS, DATED SEPTEMBER 4, 2018 [11-15]
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P14
NYSCEF DOC.NO. 13 RECEIVEDNYSCEF:09/04/2118
STATE OF NEW YORK

-------..---..----___--------._._______
Plaintiff
vs. ATTORNEY
AFFIRMATION
Index No. 815187/2017

Defendant
HILARY C. BANKER, ESQ. an attorney duly licensed to practice law in the
State of New York, affirms the fellowing under the penalties of perjury:
1. That she is a partner in the law firm of BURGIO, CURVIN &
BANKER, attorneys for the Defendant, LOUIS DESIGN SOLUTIONS
ARCHITECTURE, LLC (hereinafter LOUIS DESIGN), herein, and as such, is fully
familiar with the facts and cirœmstances surrounding this motion.
2. That this Affirmation is prepared in support of Defendant's motion to
dismiss Plaintiff's Complaint on the ground that it was not commenced within the three-
year applicable statute of limitation governing actions to recover damages for
malpractice. Pursuant to CPLR §214(6), action to recover damages for malpractice
(other than medical, dental or podiatric malpractice), regardless of whether the
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underlying theory is based in contract or tort, must be commenced within three years. In
this case, the action was co-=eñöed over thirteen years after the expiration of the
3. The Summons and Complaint seeks darsages for architectural malpractice
in connection with design work done for the Charles E. Burchfield Nature & Art Center
I located at 2001 Union Road in West Seneca, New York. Plaintiff claims that Defendant
was negligent in performing its professionel architectural services.
4. Plaintiff's Verified Summons and Complaint is anached hereto as Exhibit
A. In the Verified Complaint, certain statements are made by the Plaintiff. These include
the following:
(a) A January 20, 1998 proposal issued by Nussbaumer & Clarke, Inc. (NCI)
for professional engineering services at the Burchfield Center indicated
that LOUIS DESIGN would work as a sub- consultant to NCI on the
Project (Exhibit A, paragraphs 5 & 6).
(b) In or about November 1998, NCI and LOUIS DESIGN prepared a first
set of construction drawings
including a site plan that WEST SENECA
intended to rely on and use in the construction of the Burchfield Center
(Exhibit A, paragraph 8).
(c) On or about May 25, 1999, NCI informed WEST SENECA of a

supplemental proposal and indicated that LOUIS DESIGN
would proceed with architectural work on the Burchfield Center (Exhibit
A, paragraph 9).
(d) Thereafter, LOUIS DESIGN proceeded to design the Burchfield Center

in accordance with WEST SENECA's goals, objectives and expectations
and otherwise for the benefit of WEST SENECA (Exhibit A, paragraph
10).
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RECEIVEDNYSCE
(e) WEST SENECA relied on the advice, recommendations and drawings of

LOUIS DESIGN before bidding out the construction of the Burchfield
Center (Exhibit A, paragraph 12).
(f) On or about March 11, 2002, WEST SENECA certified that the
Burchfield Center building was complete (Exhibit A, paragraph 14),
5. In the Verified Complaint, WEST SENECA claims that due to the
architectural malpractice of LODIS DESIGN there are defects in the Burchfield Center
that require repair. WEST SENECA seeks damages against.LOUIS DESIGN,
specifically, the cost of said repairs. However, pursuant to the applicable statute of
limitations for architectural malpractice, any claims by WEST SENECA for the
architectural drawings previded to it by LOUIS DESIGN and which it relied upon in the
..
construction of the Burchfield Center, which was complete in 2002, must have been
brought within three years of the completion of the Project. Plaintiff failed to do so and
therefore its claim is time barred. (See Affidavit of Brian Louis, R,A., attached at Exhibit
B).
6. Case law is clear that a cause of action against an architect accrues when
his or her professional relationship with the owner ends. In the instant case, the
professional rehtinnship between the Plaintiff and LOUIS DESIGN concluded in excess
of ten years prior to the date of the Summons and Complaint was filed.
7. Clearly aware that the applicable statute of lirñitations has long run,
Plaintiffs attempt to use the provisions of CPLR §214-d to escape their failure to timely
commence the instant action. However, the instant action, which is brought by an
157

14
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owner against a contractor for architectural malpractice, is not of the nature of those cases
properly brought under CPLR §214-d. Plaintiff herein cannot utilize the provisions of
§214-d to expand the applicable statute of limitatioils.
8. Plaintiff asserts in the Complaint that it is a claim for "property damage".
However, Plaintiff cannot claim that its damages which, according to the ComplMnt, are
as a result of economic loss resulting from a breach of contract, and call it "property
damagc"
to shoehorn this case into those covered by §214-d. Section 214-d was intended
for third-parties, with no contractual or other relationship with the architect, who bring a
claim for, for example, personal mjunes, agamst an architect. Section 214-d heightens
the standard for a Plaintiff in a personal injury action as the Plaintiff must demonstrate
that a substantial basis in law and fact exists to show Defendant's performance was
negligent. This is a much higher standard than for a traditional motion to dismiss or a
Motion for Summary Judgment.
9. In this case, the owner of the property delayed bringing its claim that there
was an issue with the design of the property. However, the Plaintiff has been on this
premises and aware of its condition since construction was complete. They had ample
time to bring an action pursuant to the applicable three-year statute of limitations for
architectural malpractice. They failed to do so. Plaintiff herein is not in the same
position as a third-party with a personal injury action that had no knowledge of the
!
construction of this property and had not been present on the property since its
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construction. Plaintiff is attempting to misconstrue and misapply §214-d in order to
escape its failure to timely comnience this action.
10. Case law is clear that §214-d cannot be used by an owner to extend the
three-year statute of limitations. See attached Memorandum of Law.
WHEREFORE, Defendant respectfully requests an Order of this Court dismicag
Plaintiff's Complaint on the ground that the action was not commeced within the three-
year statute of limitations, together with such other and further relief as this Court may
deem just and proper.

Buffalo, New York

496 Main Street
(716) 854-1744

MATTHEW D.HOLMES, ESQ.
925 Clinton Square
(585) 473-3100
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16
EXHIBIT A - SUMMONS AND VERIFIED DATED JULY 2018

COMPLAINT, 11, [16-25]
INDEX NO. 815187/2017
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NYS 07/12/2018 09 32 RECEIVBDENYSCEF81!©$P/RQ'18
th‡ COUNTY CLERK AM|
NYSCEF DOC. NC. 4 RECEIVED NYSCEF: 07/12,2018
STATE OF NEW YORK

Plaintiff
-against- SUMMONS
Index No. 815I87/2017

Defendant
To the Above-Named Defendant:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action
and to serve a copy of your Verified Answer or, if the Verified Complaint is not served with
this Summoñs, to serve a Notice of Appearance on the Plaintiffs attorney(s) within 20 days
after the service of this Summons, exclusive of the day of service (or within 30 days after
the service is complete if this Summons is not personally delivered to you within the State
of New York); and in case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the Verified Complaint.
The place of trial shall be Brie County. Venue is based on CPLR 503(a) and (c).
Dated: July j_, 2018


925cLINTON
SQUARE
NY14604
ROCHESTER, Matthew D. Holmes, Esq.
Counsel for Plaintif
925 Clinton Square
(585) 473-3100
IDreleseMasam
MadmøRLesidjunm
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RECEIMgME 918
LE I COUNTY CLERK 07/12/2018 09¼32

443 Delaware Avenue
925CUNTONSQUARE
NY14804
ROCHESTER,
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1
NYSCEF DOC. NC, 5 RECEIVED NYSCEF: 07/12 2010
STATE OF NEW YORK

Plaintiff

Index No. 815I87/20I7

Defendant
Ernstrom & Dreste, LLP, for its Verified Complaint against Louis Design Snt"Manc
Architecture, LLC (f/k/a Louis Design Group) ("Louis Design**), alleges as follows:
PARTIES
under the laws of the State ofNew York with its pr'mcipal place of business located at
2. Upon information and belief, Defcñdant Louis Design is a domestic limited
E liability company ©rganized and existing under the laws of the State of New York with a
principal place of business located at 443 Delâwäic Avenue, Buffalo, New York 14202.
SQUARE
925CUNTON
NY14604
ROcHESTER,
3. At all times relevant herein, Louis Design was cagaged in, among other
things, the business of providing professional architectural services.
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NYSCEF DoC. NOU 5 RECEIVED NYSCEF: 07/12/2018
PROJECT BACKGROUND
and proximately caused by Louis Design's negligence in performing its professional
architectural services.
6, In or about January 20, 1998, Nussbaumer & Clarke, Inc. ("NCI") issued a
proposal to West Seneca for professional engineering services at the Burchfield Center.
Attached hereto as Exhibit A is a copy of the January 20, 1998 proposal.
7. The January 20, 1998 proposal indicates that Louis Design would work as a
sub-consultant to NCI on the Project.
8. Upon information and belief, in or about November 1998, NCI and Louis
Design prepared a first set of construction drawings, including a site plan that West Seneca
intended to rely on and use in the construction of the Burchfield Center.
9. In or about May 25, 1999, NCI informed West Seneca of a supp!cmcatal
ERNSTROM
&Iyganc proposal to change the structure of the Durchfield Center building from modular
ascuNTON SoUARE conStructiontOacuStom build, indicated that Louis Design would proceed with
NY14004
ROCHESTER,
architectural work on the Burchfield Center, indicated that NCI would provide structural
plans, elevaticas, sections, and details of the foundation and framing for the Burchfield
Center, and stated that 25 sets of plans and specinnations will be provided to West Seneca
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NYSCEF DOC. No. 5 RECEIVED NYSCEF: 07/12/2018
1999 supplemental proposal is attached hereto as Exhibit B.
10. Thereafter, upon ½=±Eon and belief, Louis Design proceeded to design
the Burchfield Center in accordancc with the West Seneca's goals, objectives, and
expectaticas and otherwise for the benefit of West Seneca.
11. West Seneca then received sets ofconstruction drawings for the Burchfield
Center dated June 1999. Attached hereto as Exhibit C are copies of the sets of June 1999
12. West Seneca relied on the advice, recommendations, and drawings of Louis
Design before bidding out the construction of the Burchfield Center.
14. In or about March 11, 2002, West Seneca certified that the Burchfield
16. As presently ascertained, the Burchfield Centerhas suffered significant
property damage, inniuding, but not limited to, locking hardwarê that bursts off double
ERNSTROM
&DRJsrs hung windows, a significant amount of differential wall settlement near window locations,
925cuNrONsOUARE WOod rot at the bottom of the walls of the Burchfield Center, and differential settlement of
NY14804
ROOHESTER.
the stud walls.
17. West Seneca anticipates that it will continue to discover addhat

property
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NYSCEF DOC. NO. .1 RECEI Y EF Q
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Center's latent defects were caused by an impropct design of the Burchfield Center.
Attached hereto as Exhibit D is a copy of Building Science Services, LLC's April 28,
2017 Review of Cetiditiañs and Report of Findings.
specifesticñ s as to where the ground elevations were intended to be, and such improperly
the Burchfield Center's floors lap elevation, 2-3 inches below the sur-cunding earth grade,
r surfaces to be exposed to condnu~2s and extended conditicas of moisture exposure and led
21. As a result of the improper design of the Dürchficid Center by Louis
Design, West Seneca has suffered direct and comequential damages in a sum which shall
be determined by the Court, but which is believed to exceed $1,772,664.00.
22. West Seneca duly provided notice to Louis Design of its claims pursuant to
E Êr CPLR 214-d upon discovery of the property clnmage Attached hereto as Exhibit E is a
of West Seneca's Verified Notice of Claim Pursuant to CPLR 214-

925CLINTON
SQUARE trueandcüGpidlâCOpy
NY14604
ROCHESWER,
d against Louis Design along with the affidavit of service.
23. West Seneca has fully complied with the requiremcats contained in CPLR
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NYSCEF DOC. NO. RECEI EF: 09 O 018
AS AND FOR A FfRST CAUSE OF ACTION
(Malpractice and Negligcace against Louis Design)
"i" "23"
25. Upon information and belief, Louis Design was retained by NCI to help
design the Búïchñcid Center for the benefit of West Seneca and to provide all those
professional architectural services necessary to construct and complete the Burchfield
Center.
26. Louis Design possessed special knowledge and skills as it related to the
professional architeteal services it provided West Seneca for the design of the Burchfield
Center.
27, Louis Design knew that its professiona! design services were for the benefit
of the Plaintiff.
..
28. Louis Design knew that its professional skills, its development of the
Burchfield Center, and its final design documents including drawings, plans, and
ece iWtic.m, would be used and relied upon by the Plaintiff for the construction of
the Burchfield Center,
29. By preparing the design of the Burchñcid Center, Louis Design impliedly
represented to Plaintiff it had the reasoñâble degree of skill usually possessed by a
925cUNTONSQUARE profesSiOnal architect, that it was familiar with the construction materials and practices in
NY14604
ROCHESTER.
ordinary use in the construction of the Burchfield Center, and that it was familiar with the
various büüding code provisions gcycrñing construction of the Burchfield Center,
30. In providing its professicñâ! design services in connection with the
construction of the Burchfield Center, Louis Design owed the Plaintiff a duty to use that
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degree of skill and learning normally possessed and used by a professione! architect in
good standing in a similar practice and under like circumstances.
31, Louis Design breached its duty to Plaintiff by failing to properly design the
Burchfield Center.
32. As a direct and prcximate result of Louis Design's breach of its duty to use
that degree of skill and learning normally possessed and used by a professional architect in
good standing in a similar practice and under like cimumstances, in delivering its
professional architectural services, the Plaintiff has suffered direct property damages to the
Bumhfield Center in a sum which shall be dctcrmined by the Court, but which is believed
to exceed $1,772,664.00.
.
requests judgment against Defendant Louis Design Solutions Architecture, LLC (f/k/a
Louis Design Group) as follows:
a. On its First Cause of Action, judgmcñt in favor of Plaintiff and against
Defendant in an amount which exceeds $1,772,664.00, but which amount will
SQUARE
925CUNTON
ROCHESTER,NY
14604
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NYSCEF DOC. NO. :- RECEI Y EF: / 18
NYSCEF DOC. NO. 5 RECEIVE D NYSCEF: 07/12 018
Dated: July1, 2018

John W. Dreste Esq

925 Clinton Square
(585) 473-3100
VERIFICATION
925CUNTON$QUARE
NY14604
ROCHESTER,
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
7
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25
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NYSCEF DOC. NO. 14 RECEI W§§EF 1 18
9gtp
VERIFICATION
STATE OF NEW YORK )

) ss.:
COUNTY OF ERIE )
contents thereof and the same is true of my own knawicdge except as to those matters
them to be true. The grounds of my belief as to all matters in the Verified Coisplaint not
...
and my involvement with the Burchfield Center after completicí f the 'ect.

*
//_ day of Ju , 2018.
ota Public
JACQUELINE A FELSER
Lic. #01FE49549 20
NotaryPublic,State of NewYork
Qualified|n Erle County
My Commismicr,ExpiresAugust21,201
8 of 8
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26
EXHiBIT A- NUSSBAUMER & CLARKE, INC. PROPOSAL LETTER [26-29]
(F Ž LED : ERŽE COUNTY CLERK 0 9/04/2018 03:23 INDEX NO. 815187/2017

PM|
NYSCEF Tinr No 14 _______ RECEI 18
|FILED : ERIE COUNTY CLERK 07/12/2018 E EFB1 5019Ó04/
09:37 AN|
NYSCE F0 S f6 . 618: 20 @716 8267958 NCI BUFFALO RECEIVED NYSCEbbÙJ?J/.4A5/2018
NUssbsumer & Clar*ke, inc.
consu!cing En gineere SuNeyors
3556 LakeShore M.. sulsa500 a auffalo. NewYork 14219.1494
t7 E) 527.8000 Branch Offiopsi

Omeo, New Yo
Fax (716) 8284869
cemenus, North Carolina
January 20, 1998
Councilman-Chris Osmanski
TownofWestSeneca
1250 Union Road
Re: Proposal for Professional Engineering Services

Youth Bureau Building
NCI File No. 98-100/07
Dear Mr. Osmanakit
Nuastannier & Clarke, Inc. (NCI) is pleased to offer the following Proposal For Professional Engineering
Services for the 3,780 squate foot youth bureau building on Union Road near Clinton Street. This
proposal was repared in response to your verbat reqocat for a proposal on January 14, 1998. NCI has
teatned whh nis Design Group (LDG) for the architectural plans for the building and they will be
working as a sub-consultant to us on this project.
SCOPE OF WORK:
The project involves the construedon of pp=±W 3780± square footfacility as shownon the drawing
presented at our meedug.
sCOPE OF SERVICES:
NCI offers the following P=fxf=s: Engineering Services for each of the design in order to complete the
work.
A. Topographic Surrey:
1, Topographic survey work will be perfoauad to characterize the site elevation changes and
for use in obtal:±!g a flood plain developtnent pennit. The topographic work will include
the establishilient of survey baselines, bench marks based on USGS datum, vsrincatian of
exisdng roadway features, pavement limits. signs, trees, power poles, and underground
udlity markers.
2. Base maps of the survey data will be developed from field survey work and the exisdng
features plotted on a 20 scale map, This map will serve as a base map for engineering sita
design,
B. Design Development:
1. After review with the Owner, NCIand LDG w!It Incorporate any revisions if required 'mto
the schematic design plans. Outline specifications will be ±r ±ped for the project with
attention to types of materials to be used.
EjTAFFEO BY: EENGINEERS * ISLANNERS • SURVEYORS

170

27
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[F ILED : CLERK 0 9 / 0 4 T2 018 0 3 : 23 PN|
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FILED : ERIE 0 771F7YÖ~18 09: 37 INDEX No. 815167/2017
COUNTY CLERK
RECEIVED NYSCE :cQ7//off!2018
0 6/Ê 16:20 $'71682679s8 NCI BUFFALo
Nussboumar-acteric.e,me.
Councilman Chris Osmma

Page 2
January 20, 1998
2. Architectural features will be coordinated with mechanical, electrical, structural, and site
design. A pr:1imir;üy opinion of probab)c cost will be developed based on the Owner's
building program.
C. Construction Docans .'s:
1. NCI will provide site plans with fmia paying grades,sidewalks, drainage structures and
piping, parking layouts, waterlines, hydrant tocadons, and site lighting. Plans, profiles,
atid details will be developed for the site. The Town of West Seneca will most likely
•
require a submission of a site plan and an Eng ·3er's Report for site plan approval, We
shall provide these as part of the site design pordon of the work.
2. LDG will develop architectoral plans indicating, floor plans, roof plans, building
elevations, secdons, window and door schedules, and details. .¾
3. NCI will develop structural plans, elevations, sections, and details of the foundations and
framing. NCI will use NYS Uniform Fire Pre":=tion and Building Code live loads for
foundation design.
4. NCI will develop mechmina, fun protection, and ;!"-W plans for the building under
6ontideration. Plans, sections, and details for a ventilation system as well as necessary
plumbing systems wiI1 be prepared2
5. NCI will develop electrical plans indigating lighting fixture layout, wiring diagrams,.panet
wiring, Convenience outlets, power for mechanical equipment, building Ilghting and site
lighting will be provided. We are not anticipanag data cabling work.
6. NCI and LDG will develop bid dec"- comprising insauctions to bidders, proposal,
agreement, general contract conditions, gúgpiemr.nary conditions, and tcchnical
speciñcatians. The Owner shall provide the General Conditions, Form of Agreement,
Supplementary Condidons, Instruedons to Bidders, insurance Requirements and other
standard forms normally used in West Seneca's bid documents. These documents along
with the drawings will comprise a bid set for prospective sub-contractors. NCI will
provide twenty (20) sets of plans and specificadons for the Ownera use in chtnining blds,
D. Construction Servicest
1. NCI and LDG will assist the Qwner during bidding to answer questions and issue addenda
as necessary.
2. NCI and LDG wIU provide shop drawing coordicadan and review services for the pmject.
NCI and LDG will make thirty (30) site visits throughout the course of the contract. Site
visits will be made at the times that important activities are underway. Additional visits
at the request of the Town for ecñstraccañ consultadon services will be billed at an hourly
rate as an addidonal service.
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0 Î0 6: 21 7168267958
Numoboumer & Clarke, be.
Councilman Chris Ormanski

Page 3
January 20, 1998
E, Exclusione
1. This proposal does not Include presic e for hazardous waste analysis, wetlands locations,
nor cultural resource evaluations.
2. This proposal does notinclude services for docutnendag SBQR, preparing envi==w
mmrnmts or impact stracments, attendance at Town Planning Board meetings, or
securing building permits.
3. After review of the proposed building location on the site, a subsurface investigation
program should be developed with the Owner. The Town should engage the services of
a geotechnical sub-consultant to characterize the subsurface ots"ff:-.; at the site; After
the foundation loading conditions have been ascertained, we anticipate the Town will retain
a georenhnin=1 engineer to study the conditions and prepare a geotechnical analysis for the
project..
4. NCI has not included a full-time construction observer in this scope of services per past
arrangements with the Town.
FEES:
The following lump sum fees are based on a convendonal design, bid, build project as follows:
A. TopographicSurvey , . . . . . . . . . . . . .... . . . . . . . . . . , . . . . . . - . . . . S 4,000,00
B. Preliminary Design . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . S 6,000.00 op
C. Construction Documents . . . . . . . . . . . . . . . r. . . . . . . . . . . . . . . . . . . . . . $16,300.00
E. Contract Ad-ini*ation . . . . . . - .. . . . . . , . , . . . . . . . . . , , . . . . . . . . . . $ 7,500.00
If the Town decides to use a prefabricated building and have an apprendce program with training
contractors, the fees in the agreement will need to be re-:cgo:iated to conform more closely a revised
scope. In the absence of a defined program at this point, NCI and LDG offer this proposal based on our
understanding of the project to date.
Costs shall be bfiled monthly, based on the actual work andmñrsi and performed each month. Amounts
bllied are due and payable withio sixty (60) days of the date of invoice.. Costs and conditions included in
this proposal are valid for a period of sixty (60) days from the date of this quotation.
If this proposal is acceptable, please sign and return the copy of this proposal to our office serving as our
authorization to proceed. The original is for your records.
172


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NVR EF ..DAr' NA... 1.4 ... . .. ...
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All
NYSCEFoppf0/ 6:21 971682$7956 NCI B11FFALO RECEIVED NYSCE :00F/41|%!2018
Nussbaumer a Clarke, inc.
Councilman Chria 0:m::::ki

Page 4
January 20, 1998
NCI thanks you for the opportunity to present this proposal and look forward to Working with you on this
project. If there are any ga::!ora, please call us at your earliest opportunity,
Yours inily,
NUSSBAUMER & CL .RIG, NC,
Michael F. Smith, P.E.

Vice President
C.E.0, - Engineering
Michael B. Pratt, P.E.

Corporate Associate
Accepted: . OWNOP WEST SENBCA
Title: 7 Dats: / /af/9f

/ s
ROUTETO:
R3OEEVED f me inmas
- aA
nate
JAN 30 as
NUSSSADE3R&CLARKE sA 4-
JOB# . - FILE tt
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EXHIBIT B- NUSSBAUMER & CLARKE, INC. SUPPLEMENTAL

PROPOSAL LETTER [30-31]
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RECE EF 1ÊŸ/O 8
I d: RÎÛ COUNTY CLERK 07/12/2018 09:37 A14
NYSCEF DO g/Wf.co7 10: 25 U7168267958 NCI BUFFALO RECEIVED NYfig$4'u(($/12/2018
(Led .
Nussbaumer & Clarke ac.
Consulting Engineers Gurveyons
25nB LakeShore%. Siaze500•BuN•\e,NewYork14218,1494
01@ 627•G00Q se,nen onge,

e× me: emeasse Charlotte. NoeenCrroW
May 25, 1999
Christopher O==alri, Councilman

Town of West Seneca
1250 Union Road
WestSeneca, NY 14224
Re: Proposat for Professioni a:pplc:::cn::1 Engineering Services

West SenecaYouth Bureau, Burchfield Park
NCI FHe No, 98112
Dear Chris:
'"--'-er & Clarke, Inc. (NCI) is pleased to offer the following supplernental Engineering Services
Proposal for the above referenced project. h SupplementalEngineering Services are being provided to
convert the currentmodular design to a stick built design. the work mauciam.I With this proposal is directly
relatedto the preparation of redesign and rebidding decanents.
SCOPE OF WORK
NCI and the louis Design Group (IDG) will develop the necessarydocumma required to revise the Youth
Center Design. The redesign will incorporate a sdck built structure with a slab on grade floor system and
revised foundation system.
IDO will redevelop the architectural plans naking the necessaryrevisions to Indicate a stick bunt structure
and remove referety:es to the moduhr construction methodspreviously bid.
NCI d revise the structural plans, clevations, sections and details of the foundations and frandog. Also
Included in NCI's scope of work will be the redevelopatentof the meelantrah vendfation, fire protecdon,
plurablog, and electrical plans. The revisions of thesephns wGI focus on the provision of the same basic
!ayout of all fixtures and systems as envisioned in the modular unft design where feasible. no redesign will
convert the modular units to a stick built design.
NCI and LDO will redevelop the bid doc.:::::ce as required to reflect the redesign and new bid dme frame
and schedule. NCI wiG provide twenty-five (25) sets of plans and specificadons for the Town's use in
obtaining bids.
FEES
The focowing lump sura fees are associatedwith the work that NCI and LDG wUI perform as descdbed
above:
STAFFEO SY: ENGINEEFIS • FEL.ANNEMS• SURVEYQRS

174

31
FILED : ERIE COUNTY CLE RT 09/04/2018 03 : 23 P INDEX NO. 815187/2017
15N/O
LE E
RÎÓ COUWTT CLERK 07/12/2018 09:37 AM
NYSCEF DO . 7 10 : 28 97168267958 NCI BIJFFALO RECEIVED NY n0/12 /2010
Nussbaumer & Catke, inc.

Christopher Osmanski, Councuman
Town of West Seneca
May 25, 1999
Page 2
A. Prepare Design Plans and Documents 59,750,00
B. Assist the Town during Bidding 31,500.00
Costs shall be billed monthly, based on the actual work authorized and perfouned each month. Amounts
billed are due and payable within sixty (60) days of the date of invoice. Costs and condidons included in this
proposal are valid for a period of siny (60) days from the date of this quotadon.
his NCI's understanding that the Town's Engineering DqL~_..=± realizes the alab on grade opdon requires
structural fill, which will need to be brought in from an off-site source. The exisdag borrow material from
ornite sources will not be acceptable as stmeturalfin matedal. Conversations held Monday Evening May 24,
1999 during the Town Board Meeting indicated the structural fill needed for the slab on grade will not be
included in the balanced cut and 51for the overall park site and Race Street E=‡=±:: project.
NCI will endeavor to complete the redesign in two (2) weeks time.
NCI appreciates the ge-t to submit this proposal, We are available at your convenience should you
desire to discuss any aspect of this proposal. Upon acceptance of our proposal, please sign both the original
and the enclosed copy where indicated below and return the copy to our otlice. The original is for your file.
This will then serve as our Agreementand Notice to Proceed,
Yours truly,
1F, Smith, P.B

Vice President and CAO. Engineedog
Barbara J. Frankiewicz, P,B,

Project Managet
MPs/bjt/m
Accepted by: TOWN OF WEST SENECA
By: . . .. . Date:
Title: ..
Csmanald
FM/PPROPOSALW¼5ENECAWS 5-25doo
175

32
EXHiBIT C - JUNE, 1999 CONSTRUCTION DRAWINGS [32-57]
FILED: ERIE COUNTY CLERK 09/04/2018 03:23 INDEX NO. 815187/2017

PD
RECEI E 5 18
LÎÉÌÎ Ill COUNTY CLERK ·07 /12 /20-1-8 09 4 3.7_AM_J
176

33

[FILED: COUNTY CLERK¯¯0970-472018 03:23 P3
NYS '' RECEI fyEF 2.018
'
FILED: ERIE COUNTY CLERK 07/12/2018 09737 AM
.NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/12/2018
177

34
INDEX NO. 815187/2017

FILED: ERIE COUNTY CLERK 09/04/2018 03:23 P$
RECEIVED NYSCEF: 09 t'04/2018
NYSCEF DOC. NO. 14 mwx m. casiat 2on
{FILED: ERIE COUNTY CLERK 07/12/2018 0
'
NYSCI?F TAC. 10 . 0
178

35
FILED: ERIE COUNTY CLERK 09/04/2018 03:23 P1 INDEX NO. 815187/2017
NYSCEF DOC No 14 RECEIVED }TYSCEF: 09/Q4/2018

INDE PO. 81518 / / 2317
(FILED: ERIE COUNTY CLERK 07£12/2018 09:37 A
RECEIVÃD'
NYSCEF DOC NO 8 NŸSCEF: 07/12/2018
179

36
INDEX NO. 815187/2017

ERIE COUÑTV CLERK 09/04/2018 03:23 Pl
(FILED:
RECEI D CEF: 09 04/2018
NYSFEF.DOC..... NO ..14 _ D . 81512 /2017
(FILED: ERIE COUNTY CLERK 07¯/1272018 09:37 AÑ)
. RECEIVEd NÝSCEF: 07/12/2018
NYSCEF DOC. NO. 8
180

37
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|FILED: ERIE COUNTY CLERK 09/04/2018 03:23 P
09:37 AM
mnex m . sisas7/2017
|FILED: ENI2 COUNTY CLERK 07/12/2018
8 gnr;gj N¼scEF r7/12h018
rYSCRF thC . UG.
181

38

D: 09/04/2018 03:23 P1d
NYSPEE_por No RECE 50 18
ERIE COTJNTY CLËRX 07/12f2018 0 CEÎ
[ýILÈ13: 3-7-2
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/12 /2018
secrA¼me
** asweoe.mar
von AND
MATTitBFACE 2,4
182

39
INDEX NO. 815187/2017

(FILED: ERIE COUNTY CLERK 09/04/2018 03:23-Pli
NYSPRF n00 NO 14 RECEI SCEF 8
(FILED:
.. ERIE COUNTY_CLERK 07/12/-2018 99537 AM
ZYSCEF D00. N0, & aiKEIVED NYSCEF: C7/32/2010
183

40
|FILED: ERIE COUNTY CLERK 09/0472018 03:23 INDEX NO. 815187/2017

P$
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09 O 2018
INDEX NO. 81518 17
(FILED: ERIE COMY CERK 07/12/20r8 09:T/iMj
/
NYSCEF DOC. .NO. 8 RECEIVED NYSCEF: 07/12/2018 .
L J!-aJI.
-ILJ
wwwa·*rnaw newmar awr9ng 6LAD

nM 24·
eveno, mvatop,
184

41
INDEX NO. 815187/2017

|FILED: ERIE COUNTY CLERK 09/04/2018 03:23 PM|
RECEIVED NYSCEF: 09 2018
NYSCEF DOC. NO. 14 INDEX NO. 81518 17
ILEDE ERIE COUNTY CLERK 07/12/2018 09:37 AÑ)
RECE1VED NYSCEF: 07/12/2018
NYSCEF DOC. NO.. 8
185

42
INDEX NO. 815187/2017

FILED: ERIE COUNTY CLERK. 09/04/2018 03:23 PM
.... RECEI E 0 18
NYSCEF DOCa NO, 14 . ..
(FIf2D: ERIE COUNTY CLERK 07/12/2018 09:37 AM
RECEIVÈÙ N SCEF: 07/12 j2018
NYSCEF DC)C. NO. 8
a-
186

43
INDEX NO. 81518 7/2 017

FILED: ERIE COUNTY CLERK 09704/2018 03:23 PM
NO..........14-... ... . .. ............ RECEI ¼TYSCEF: _0949g2018
NYRCEF DOC
ff‡LED: RIE COUNTY CLERK 07/12/2018 09 37 AM
2RCEIV3D SCEF : 07/2 2 /2 018
187

INDEX NO. 815187/2017

FILED: ERIE COUNTY CLERK 09/04/2018 03:23 P
RECEI XSCE : 2918
NYS E_iE-DD-C-......RO -li------ 1 1'
FILED: ERIE COUNTY CL 5:37 AM)
RECEIVED NYSCE O //12 /2018
. NYSCEF DOC. NO. 8
ROADWAY
PROFILE5
188

45
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r-
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H
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189

46
INDEX NO. 815187/2017

ERIE COUNTY CLERK 09/04/2018 03:23 P1
|FILED:
RECEIVED NYSCEF: 09/04/2a18
NYSCEF DOC. NO. 14
niepuum rm m g
PROrtit;
5ANITARY AND DETAILS
INDEX NO. 815187/2017
FILED: ERIE COUNTY CLERK 09/04/2018 03:23 PM1
NY‡ Q. ER-IE4COUNTY CLERK 07/12/2018 09:37 AM) RECIEW#ÊÍD%YS %MB~0ÉP/0147/2018
NYSCEF DOC. NO- 8 RECEIVED NYSCEF: 07/12/2010
TOWN OF WEST SElYECA - JOB # B-9902
PAUL LCLARK SUPERV/SOR
JERRYM HfCKS CHR/STOPMERf
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GRABER, JR. .. . ak‰ T/MOTHYM
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LTNGENGWEER$
CONS & $VRVEt0R5 N.Y CHARLOTTE.
90FFALO, NC
Louis DesignGroup
191

48
INDEX NO. 815187/2017

FILED : ERIE COUNTY CLERK 09/04/2018 03 : 2 P14
NYSCEF DOC. NO. 14 nmex m. sa s t s7/2017
0‡839 : 3tRM1
RECETVED rYSCEF: C7/12/2018
UYSCEF CDC. T.
192

49
INDEX NO. 815187/2017

[ffLED: ERIE COUNTY CLERK 09/04/2018 03:23 Pli
NO. 14 RECEIVED NYSCEF: 09/04/2018
NYSCEF DOC.
8 ON 300 dSDSH
......
193

50
INDEX NO. 815187 /2 017

C©UNTY CLE K 07/12f20 0 3 AÑj
ILED ERIE RECEIVED NYSCEÉ: 07/12 j2018
NYSCEF DOC. NO 5
194

51
INDEX NO. 815187/2017

FILED: ERIE COUNTY CLERK 09/04/2018 03:23 PM|
RECEIVED NYSCEF : 09/04 /2018
NYSCEF DOC. NO. 14
NU SSB ADMEN se wanra masts r

. **** *±f.t two orn
8 0N DOG daDSXN
195

52
INDEX NO. 815187/2017

CLERK 09/04/2018 03:23 PM
FILED: ERIE COUNTY 09/04/2018
RECEIVED NYSCEF:
NYSCEF DOC. NO. 14 ., ,.
an a wearerna mwson Ao
& CLARKE tNC
'
L I0 E/ L 81518 ON XE[GNI
196

53
ÎF1LED: ERIE COU1fY CLERK 09/04/2018 03:23 PNl INDEX NO. 815187/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09 04 2018
(PILED: 07/12 2018 09:37 INDEX NO. 81518 /2 17
ERIE COUNTY CLERK AN1
NYSCEF DOC, NO. 8 .. . RECBIVED NYSCEF: 07/12/2010
197

54
INDEX NO. 815187/2017

09/04/2018 03:23 PM)
F LED: WTE COUNTY CLERK
NYSCEF DOC. NO. 14 INDEX NO. 815187/2017
CLERi( 07/12/2018 09:37 AM|
Y NYSCEF: ,0"/ /12/2018
. RECEIVED
NO. 8
.NYSCEF DOC. -----------..---------.-------------------------------
198

55
FILED: ER1E COUNTY CLERK 09/04/2018 03:23 INDEX NO. 815187/2017

PM)
NYSCEF DOC. NO. 14
199

56
INDEX NO, 815187/2017

CLÈRK 09/04/2018 03:23 PM|
FILED: ERIE COUNTY 09/04/2018
RECEIVED NYSCEF:
NYSCEF DOC. NO. 14 INDEX NO. 815187/2017
CLERK 07/12/2018 09:37 AM|
|FILED: ERIE COÜNTY NYSCEF: 07/12/2018
.RECEIVED
NYSCEF DOC. NO. B .
200


(FILED: 09/04/2018 03:23 PN|
NYSCEF DOC. NO. 14 ~ .. RECEIVED NYSCEF: 09/04/20 8
H
n t
.. ... r
O O
201

EXHIBIT D - BUILDING SCIENCE SERVICES, LLC'S APRIL 28, 2017

REVIEW OF CONDITIONS AND REPORT OF FINDINGS [58-73]
IFILED : ERIE COUNTY CLERK 0 9 /04-/-2 018 -03 : 23 INDEX NO. 815187/2017
Ply
MCEI 1 03.918
[ : ÊR1 COUNTY CLERK 07 /12 / 2018 09: 37 AMI
NŸSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/12/2018
B_uildhag Science Services. LLC

8304Mainstreet
Wilhamsville,NewÝork14221
T.716-204-9733
www.BuildingScienceServicca.com
April 28, 2017
Mr. John Fenz

Town Attomey
Town of West Seneca
1250 Union Road
Re: Review of Conditions

Charles E. Burchfield Art & Nature Center
2001 Union Road
West Seneca, NY
Mr. Fenz,
In raponse to reports of unusual building damage and strdderal deterioranen at the above
referenced Burchfield Center, my office comp!ded our initial c -.Ist:=ñ and offer the follow
report of findings.
In summary, and with special emphasis on the exterior walls, please be advised we have found
the building was bpm; -ly desigacd and constructed as it relates to the unusual building
damage currently being encountered.
More specifically, the design of the exterior walls was such that it was a certainty that the
lower sections of wall would rot and the building would start settling. As per the design, the
wood framing rests upon a wood bearing plate. The wood bearing plates as well as the wood
sim±ú--'
sheething are in contact with, and positioned below the sur-f:; earth and grade.
This condition has allowed general ground mcistarc, rain water and snow melt to come into
contact with the wood over the years since it was first constntcted. This constant and ongoing
contact with water has caused the wood at the bottom of the walls in various locations to
deteriorate due to rot. The rotting of the bottom of the wood is in tum causing the differential
settlement of the stud walls.
The cenMene you have seen in recent months with regards to locking hardware bursting off
double hung windows is a direct result of the differential wall settlement near pancular
window locations. Unfortunately, these c--'"" are just the initial symptoms of what will
become worse conditions over time.
202

59
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MCE
EFg
,Q18
II : ÅRI COUNTY CLERK 07 /12 /2018 09 37 AMI
NYSCEF DOCMrNIDhnSmz RECEIVED NYSCEF: 07/12/2018
Town ofWestSeneca
April28,2017
Page2.of16
Background informatiom.
A. It is my understanding that my firm was a referral from other Design Professionals to

the Town to offer a±sistsñce in this matter. It is also my understanding that all parties
that review this.report may not have information regarding my background and
credentials as the main author of this report. I offer the following:
1. I am NYS registered and practicing Architect. I have approximately 30 years of

industry experience. My CV is available by request if necessary.
2. I am founder and principal of a firm called Architecture Unlimited, PLLC. This

finn was feeeded in 1995 and continues to provide architecture and cñginccring
services, as well as construction management services (as-advisor). The firrn's
focus was, and remains on expansion, alteration and repair of existing facilities.
Our primary market presence is in municipal, industrial, institutional, and high-end
residential work.
3. I am a founding partner in Building Science Services, LLC. This firm was formed
in 2013 to better provide forensic arahitecture & engineering, specialty design
eva!üatieñr., and coristinction testing, and expert witness services that had been a
growing and more specialized service segment within Architecture Uñlimited since
its early years. The firm has had significant involvement in both the review as well
as resolution of a large number and varying type of building performanc.e failures,
building related injury or death matters, and desigrJecastruction related disputes
and litigation.
4. I am also a fennding partner in a separate company called C31 Services. This firm
provides condin;; and technical support to various entities involved in design,
construction and other building-performance outcomes. We also provide
credentialed education services primarily to design professionals and code
enforcement officials. C31 is a service disabled veteran cwned small business
(SDVOSB).
B. Building History/Background:
l. The building is relatively new. It was designed and constracted as a new building
on or about 1999-2000 with occupancy reputed to be taken some time in 200I.
2, The Town furnished me with original construction drawings dated June 1999. A
project manual book) was not included.
(specification The drawings show the
design and engineering was provided by an apparent joint venture of 2 separate
fim1s, Nussbaumer & Clarke, Inc. for engineering and Louis Design Group for
architecture.
3. I was not provided any review information on who the centracte(s) were. Based
on my review to date, it is not clear such information would have been of any value.
4. The building has approximately 5,200 square feet of usable space.

203

60
CLERK INDEX NO. 815187/2017

ILED : -ERIE COUNTY D9 /04 /2 018 03 : 23 P1
RECEI EF 018
L : ÏR1Ï COUNTY CLERK 07 /12/2018 09:37 AM)
NYSCEF DOCMrM0bn Ebnz RECEIVED NYSCEF: 07 /12/2018
Town ofWest Seneca
April 28, 2017
Page3 of 16
5. The building is a wood frame structure, very similar to basic home construction.
The walls are wood studs. The roof is a combination of wood trusses for sloped
roofs and pre-engineered wood framing for flat roofs. The floor is concrete slab.
The foundation appears to be concrete masonry (block). There is no basement
space.
6. .Most building compoñ6ats, assemblics, and systems appear to be relatively normal.

The exceptions are as follows:
a. Within the attic spaces, the building is basically equipped with 2 roof-top
HVAC packaged systems that provide the bulk of the building's heating (H) and
cooling (AC) needs. This configuratiññ is unusual in that these units are
normally intended by design to be installed outside the building and not inside.
These units require access to outside air as part of their internal combustion
needs and building space ventilation (V) functions.
b. The roof/attic is configured with a bizarre 2-layer roof insulation system, a

levels'
system that appears to have been a failed attempt to install 2 'half of
insdaties instead of the specified single level of insulation. One level is on the
truss top chords (or roof frame level) and the other level is at the truss bottom
chord (or attic floor level). In and of itself, this configuration never works
effectively in tandem even under the best of circumstances. In this case, it
doesn't work at all because the attic space itself has large intake air louvers to
provide large volumes of outside air into the attic space for the purposes of
supplying required combustion and ventilation air to the HVAC units concealed
in the attic.
7. The buildiñg has been altered since its original design and construction.
a. There are 2 areas, as reported by Town staff, where a second roof assembly was
added over existing roofs in an effort to resolve or diminish ice accumulation
hazards and related water infiltration problems.
..
b. A thermal-wire ice-melt system was added similarly as part of efforts to resolve

or dimiñish ice accumulation hazards and related water infiltration problems.
c. A plywood floor was added to the attic space trusses to improve access to the
HVAC systems in the attics and to allow for attic space storage.
C. Relevant Building Codes:
1, The codes having jurisdiction over the original design and construction back in
1999-2001 was the 1995-96 version of the 1984 NYS Unifonn Fire Prevention and
Building Code.
2. The codes having jurisdiction over the current ecüdition and review of the facility is
the currentNYS Belding Codes, more specifically the 2015 ICC Existing Building
Code (EBC), ICC Fire Code (FC), and NYS Property Maiñteñance Code (PMC),
204

FILED : ERIE COUNTY CLERK 0970472018 03 : 23 INDEX NO. 815187/2017

Pl
NYSCEF DOC, NO. 14 .. RECEIVED NYSCEF: 09 04/2018
(FILED : ERIE COUNTY CLERK 07/12)2018 09:37 W INDEx NO. 8151 7 /2017
NYSCEF DoCB4rNIDhnEbuz RECEIVED NYSCEF: 07 /12 /2018

Town of ht Seneca
April 28, 2017
Page4 of 16
Primary Findings:
A. The building is in a state of advancing structural deterioration at its lower exterior wall
perimeters. More specifically, the bottom of the exterior wood wall plates, studs,
orientated-strand board (OSB) structural sh£sthing and steel fasteners are rotting from
exposure to moisture.
B. The extent of the cedMes ofrot cannot be fully determined without more destructive
analysis but based on our review of thermal imaging scans taken during our
investigation, it does appear the conditions are at their worse where exposed by drywall
removals by previous Town investigations. We believe some lesser, if not same form
of deterioration is occurring as all reraaining and concealed exterior wall periters.
C. The cause of the canditicts of rot is an original design failure. The original 1999 plans
established the finished floor slab of the building was to be at an elevation of 625 feet.
However, the plans provide various elevations for the grade surrounding the building.
On the elevation drawings, the design required that the general grade elevation was to
be 622.5 feet except at door areas which were to be approximately the same 625 feet for
flush floor transitions with no step(s) down. Separate foundation details in the plans
required that the general grade elevation was to be 621.5 feet. And separate civil
engineering site drawings required that the adjacent grade was to be almost the same as
floor level at about 624.5 feet See Exhibit 01
The confusing, improperly designed, and poorly cerdiñEtéd specification as to where

the ground elevations were intended to be was very likely caught during construction
activities and quickly became a significant and open problem that faced the designers
and project managers. Most
likely, it was detennined that the grade needed to be raised
to the approximate slab level primarily
floor because the 4 various door locations were
all required to be compliant with barrier-free (bandicap) codes and without steps, and
because the design had no eccemmedations for separate handicaps ramps to account fot
the changes in elevation
coming out of the building. Although that remains speculation
on my part, it's clear that someone determined that the conflict in finished grade
shown in the civil/site drawings and details. See Exhibit 02
However, s.eparate details for the wood wall framing still required that the bottom of the
walls would sit directly on the concrete block foundations to be set at an elevation of
624.33 feet. This put the bottom of the wood, not at the floor slab elevation of 625 feet,
but instead at a lower elevation approximately 6-7 inches below the floor slab
elevatica, and more importantly, approximately 2-3 inches below the surrounding grade
consisting of earth and landscaping tñaterials, and approximately 8-9 inches below
grade at door entry and walkway perirneter areas. See Exhibit 03
The only thing that separates the structural wood materials from exposure to the
süricüñdiñg ground moisture is the vinyl siding and exterior air barrier, themselves not
materials intended or capable of thnctioning as moisture barriers in such a manner. In
some instances, we can see where someone must have recognized the basic problem
205

62
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03
{FILED : ERI E COUNTY CLERK 07 /12 / 2018 09: 37 W INDEX NO. 815187 /201 r
NYSCEF DOCMrNFehnFenz RECEIVED NYSCEF: 07 /12 /2018

Town of Wen Seneon
April 28, 2017
Page5 of16
and attempted to improve the condition adjacent to door and walkway areas by
i=+=ª--g a wrap of thin-gauge +m m coil stock at the siding base. Neither the
wood studs or the wall's exterior OSB wood sheathing are pressure-preservative
treated. The wood wall's base plate may be pressure-preservative treated because it's
conditions of rot appears generally less advanced than adjacent stud and sheathing
wood, but I could not verify this. See Exhibit 04
Since that original design failure, compounded by inappropriate ounstruction efforts,

the exterior wood wall surfaces have pretty much been exposed to periodic con4inem
of moisture exposure de ding on ground and weather conditions, as well as their
particular lücafioñs
along the building perimeter. The result is what you are
experiencing now. Rotting wood has deteriorated in some locations to the point that
structural material disappeared as a physical element which in turn, has resulted in a
process of vertical collapse of the individual wood studs that serve as structural bearing.
In short order, the same deterioration will also have an adverse effect on the building s
ability to resist lateral loads as well. See Exhibit 65
D. The original design and construction work created a violation of the 1984 (Rey. 1996)
NYS Uniform Building Code applicable at the time, and as follows:
.. 1, Sec. 800.3 Protection Against Deterioration - required thru its sub-referenced

Reference Standard R27- ] that wood wall structures were required to be positioned
at least 8 inches above the surrounding exterior grade. Again, the actual installed
condition is not a positive 8 inches as required. Its actual installed canditicñ is
negative 2-3 inches. It is noted that the same code provision defines conditions of
deterioration to includeamong others, action of freezing and thawing,
"...
dampncss, corrosion, wetting and drying, and termites and other destructive
insects". Most of these cündiGuns of deterioration apply to the wall base condition.
1 Sec. 806.2 Ex terior Materials - required that "the exterior or covering of

facing
walls... shall be resistant to the causes of deterioration... without loss of strength or
attachment which may render it unfit for use.. ".
3. Because these conditions were violations of the code at the time of original design
and construction, the configuration does not enjoy status as 'pre-existing non-
conforming'
under the current code, or what is more commonly referred to as
'grandfathered*.
4. In addition, the configuration and condition is also in violation of the current NYS
Property Maintenance Code.
Secondary Findings:
A. Our review also revealed that the building suffers from a variety of other design and
buildiñg performance failures as well. In no particular order, please note the following:
1. The four egress doors from the building were never properly configured in a
manner required by code to prevent them from being obstructed by the
206

63
COUNTY CLERK INDEX NO. 815187/2017

[FILED ; ERIE 0970 477018 03 : 23 P$
NV GrFp nnr Nn 14 . .. _. 70
|FILED : ERIE COUNTY CLERK 07/12/2018 09: A E 15
37
NYSCEF DOCMrNibhn Eta RECEIVED NYSCEF: 07/12 /2018
Town of WestSeneca
Aprfi28, 2017
Page6of 16
acem½ttens of snow and/or ice during an emergency event. The doors are
rÿüired to have measures in the form of a roof cover, recessed alcove
codguration, sidewalk heating, etc. that would prevent doors from properly
swinging open during such weather events. In addition, such conditions can be
fall'
claimed as other related liabilities in 'alip/trip and claints. See Exhibit 02
a. Sec. 765.5(a)(7) Means of Egress - required that "grade-story exit doors to the
exterior shall open on a level grade or landing... (and that) such grade or
landing shall not be less than four inches nor more than 7-3/4 inches below the
level of the doorsill except that the riser (step down) is not required where
means are provided to prevent the accünïüisilon of ice and snow".
b. Sec. 1101.5 Means of Egress - separately required that "required exits shall be
accessible (for persons withdisabilities)...". This meant that having step downs
at any of the 4 egress locations in this büildir,g was not an option due to separate
handicap code requirements.
c. Sec. 1031.3 of the current NYS Fire Code, Obstructions - requires that "a
means of egress shall be free from obstruction that would prevent its use,
meluding the accumulation of snow and ice".
2. The bui!ding suffers significant heat loss at the roof, In part because the insulation
levels are quite a bit less than what was required by the code at the time. And in
part because the design failed to properly design workable solutions, salations that
appear to have been made worse by field conditions impicmcñ‡ed by the
Contractors and/or Designers after construction started.
Some of these probicms have been very visible over the years and are the cause of
the odd snowmelt patterns you see on the roof, the ongoing ice accurñüisuon and
subsequent efforts to fight the ice build-up with snow melt wiring systems and roof
modifications. See Exhibit 06
Other problems remain concealed from general view but are causing some form of
deterioration within concealed spaces of the roof and some wall assemblies.
See Exhibit 07
Each of the problems are also causing excessive energy consumption and in turn,
high heating bills for the building. Again, these problems were caused by flawed
and improper designs and construction for the building. Notable conditióñs are as
follows:
a. The design iñ‡ended for the insulation at sloped roof surfaces (shingled roofs)
was supposed to be an R-30. The actual insulation level provided separately at
the attic floors is an approximate and lesser R-19. As previcüsly referenced, the
separate attic roof/ceiling/wall insulation has no additional value because the
overall attic space is equipped with outside air intake systems. This level was
also a violation of the NYS Energy Conservation Code.
See Exhibit 68
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0 9 / 0 4 / 2 0 18 03 : 23
NY.4 RF nor NA 1A RECEI EF 5039 O / O-18
[FILED : ERIE COUNTY CLERK 07/12 09: 37 Al 1
/2018
NYSCEF DOCMrW0bnSmz RECEIVED NYSCEF: 07/12/2018
Town of WestSeneca
Apri)28,2017
Page7of16
b. The design iñtcñdcd for the insulation at the flat roof areas on the front and back
of the building is confusing, but definitely improper, One part of the design
drawiñgs required it to be an R-30, another part of the same drawings required it
to be an R-19 The actual installed levels
confusing are inore
and worse.
There's everything from an R-11 in some places, to R-19 in others, and R-30 in
still other locations. Select areas were incomplete with gaps which in turn
allowed adjacent areas to become irrelevant by default, simply because these
gaps allow the heat loss to go around the insulation, no matter what the level
may be. See Exhibit 09
Worse, the overall insulation is installed improperly as it pertains to protection

from vapor accht½n and related deterioration. The insulation is fiberglass
with a basic craft paper facing serving as a vapor retarder. This type of
insulation restricts some, but still allows some lesser form of interior vapor to
pass thru to the colder exterior By both necessity and
side of the insulation.
code, this vapor needs to be exhausted by means of fresh ventilation air very
similar to a normal mulated house roof. Unfortunately, this building's flat
roofs are not only improperly insulated, they are not ventilated at all. There is
evidence that the adjacent wood framing and roof deck are experiencing early
onset of moisture deterioration, as would be expected. Please note conditioñs
appear minimal at this time. See Exhibit 07
c. Thermal imaging revealed there are problem areas within concealed wall and
ceiling/roof areas due to missing or damaged insubdon, The problems are best
described as periodic in scope and not pervasive thru out the building. But the
flaws are significant enough to be suspicious that some condition of vapor
accumulation, water infiltration and/or insulation gaps will likely need to be
addressed as part of improvements. See Exhibit 10
d. Inspections within open wall and ceiling/roof areas revealed similar problems of
heat loss due to missing, gapped or damaged insulation. Again, the problems
are best described as periodic in nature and not pervasive thru out, but notable
enough to be suspicious that some condition of improvement will be necessary.
See Exhibit 1I
3, The wood trusses, pre-engineered wood joists, and paper insulation faces are illegal
in this particular building where they are covered only by the suspended lay-in
ceiling system and panels. Various building codes have long required in building's
with public assembly functions as well as others that exposed wood and paper
facings be covered with interior finish materials with appropriate fire
classifications. Typically, that would be drywall in a building like this. The
suspended lay-in ceiling would be allowed, but only in addition to some basic form
of drywall protection above at the required surface areas. See Exhibit 12
4. The wood trusses were not designed to support a floor to be used for attic storage,
The plans specified only 13 pounds per
that the trusses were required to support
square foot and that was only for ceilingloads from below. While it's understood
the trusses were most likely designed to support more weight due to the pknament
of the 2 HVAC units within the attic areas, it's highly unlikely they were also
208

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fY EF 018
FILED : BRIE COUNTY CLERK 09 RECEIB
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Town of WenSeneca
April.28, 2017
Page8 of 16
designed to take on the seditiend 50 to 100 pounds per square foot depending on
code classification for unforeseen storage intentions. Please note the original plans
only showed small access hatchs and not the pull-down stair assemblies that were
added later. See Exhibit 13
5. Because the project drãwings showed the attic insulation at the roof level and not
the floor, the attic space is intended by design be on the insulation's winter warm-
side, and by default, to be ceñditioned space (meaning its heated/cooled). By stark
contrast, the same project drawings also intend for the same attic spaces to be
unconditioned (meaning no heating or cooling) and capable of fully allowing
outsideair into the attic to serve the combustion and ventilderi reqúircrñents of the
2 HVAC units located in the attic. During the winter, in particular, the attic spaces
simply cannot be both cõñditicñed and unconditioned at the same time. You will
note in the attached exhibits that while the ceiling at the attic space is clearly
insulated, the same insulation barrier is penetrated by numerous outside air
mechanical intakes that not only allow but intentionally direct cold outside air
around the barriers. See Exhibit 14
6. The design that placed the 2 HVAC units into the attics didn't seem to consider how
the units will be replaced in the future. Its notable that there is no apparcñt route for
removing the units, or for bringiñg new units in. The attic access are very small
hatches less than 24 inches wide with folding stairs rated for only very small
loading. See ExhibitI4
With consideration that the units are approximately 15 years old, and with further
censiderecñ that normal service life for such units can run approximately 20 to 25
years, it would seem likely the units will have to be replaced in a relatively near
term and the only likely route for access seems likely to be the removal of the end
walls at the rospective exterior attics, It further seems that this future maintenance
problem should be included in mnaWrations related to the current prebiems being
discussed here.
Corrective Actions:
A. To correct the structural deterioration of the building walls, a series of rcracdiscñ

steps must be taken that includes both repairs as wells as alterations in the construction
design details. The target work areas are concealed by a variety of wall and ceiling
finishes, electrical and data co-pêñsñts, and various equipment, trims and furnishing.
In addition, the current version of the NYS Building Code will require certain upgrades
due to the magnitude of the work and as part of the repair and alteration processes
specifically defined within the separate NYS existing Building Code. In general, the
following actions need to be taken:
1. Reconstruct the approximate 4 ft. of bottom exterior wall perimeter in a manner that
replaces all the lower wood wall assemblies with pressure
stud, plate and treated
sheathing materials, and then seals the below grade podion (approx. 12 -18 inches)
with a layer of self-adhering bitsdrans membrane and Cellular PVC Trim Board.
In addition, the reconsu-úction should include raising the bottom position of the
209

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NYSCEF DOCMrNibhn Eenz RECEIVED NYSCEF: 07/12/2018
TownofWed Seneca
April 28,2017
Page9of 16
extension'
wood wall by forming a 'curb of masonry or concrete foundation wall
over the existing block foundation in amanner that raises the wall's base plate to
equal the building's floor elevation. The overall reconstruction will include
jacking and shoring for both temporary support and for re-establishing level
conditions.
The wall reconstructian targets the 4-foot level so that full and complete 4 x 8 foot
pieces of new structural wall sheathing can be used to maintain and improve
structural stability. However, you should note that the work most likely cannot be
limited to the 4-foot level because that will create some stud wall instability. There
will most likely be some need to extend wall studs to fuller heights. Determinations
will need to be made followiñg some more comprcheñsive design reviews and will
likely need to be considered and modified during reconstruction as well depending
on circumstances encountered. This basic premise will be an important part of
detennining what type of contingency funding should be accounted for as part of
the project work's budgeting and will likely continue to evolve as the project work
is planned and comes more into focus.
2. To accommodate wall framing reconstruction, lower levels of electrical and low

voltage systems will need to be temporarily removed and reinstalled and/or
modified, and/or replaced.
3. Portions of walls and slab edge perimeters will need to be reinsulated.
4. Some degree of existing windows will be required to be removed and reinstalled,

and otherwiserefurbished to accorGreadate returns to level and operable conditions.
5. Due to the aged appearance of the existing vinyl siding and subsequent difficulty in
matching the worn
color, combined with the need to access window mounting
flanges for window reconstruction and adjustment, as well as other repairs and
improvements noted in this report, its best to plan on replacing all of the vinyl
siding.
..
6. Some level of interior fmish, ceiling systems, and trim repairs and replacements
will be needed as part of efforts to access primary structural repair work.
7. The exterior doors need to be equipped with some solution to meet code
requirements to create exterior configurations that prevent the accumniation ofice
and snow. Recessing the doors will be impractical if not impossible. Adding
mechanical and/or electrical walkway melt systems at the doors will most likely be
technically difficult, impractical, expensive and unreliable. Most likely the concept
of creating new roof covers over the subject doors will not only be most practicable,
but will also provide opportunities for improving the adjacent roof performance
problems as well improving the building's exterior façade.
8. Replace and reconfigure the roof insulation and ventilation assemblies at both the
flat roof frontand back areas, as well as the open attic spaces on the 2 wings. Both
these areas are relatively easy to access.
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: 23 PMI
NE RECE E 1 18
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NYSCEF DOCMrNEDlmSmz RECEIVED NYSCEF: 07 /12 /2018
Town ofwest Seneca
April 28, 2017
Pagn10 of f6
In addition, smaller areas of the central cathedral ceiling area should be improved.
Altbough more difficult to access as these areas are concealed behind drywall,
improvement opportunities may be more readily achieved and successful working
from the roof top down as opposed to fiom the interior side up. Both can be
successful but will require more time and effort to create appropriate design and
engineering solutions.
These same improvemcats can also be modified in a manner that simultmously

resolves the preblcks related to exposed fire-rated facings and exposure within the
building interior.
9. Remove existing suspended ceilings to access exposed paper and wood facings to
be covered with some form of thermal barrier, most likely drywall, as required by
code. A new suspended ceiling systems shall be re-installed or the ceiling may be
converted to fmished drywall as opportunities present themselves.
10. EHminate the floor storage capabilities within the 2 attic spaces. The alterations
should at the most be limited to proving safe access to and around the 2 HVAC
units within.
B. In addition, I am recomnznding the foliswing actions items also be taken:
L Consider replacing the 2 attic space HVAC systems now as part of other
irnprovement work. It would be a shame to have to implement significant exterior
wall and roofing iruptcvements in the near term only to find in a few short years
you need to do it again to get access into the attic spaces for HVAC system
removals and replacements.
It should also be noted that the improvements described above related to new
insulation levels will cause the building to be more energy efficient. This in turn is
going to result in the HVAC units being oversized and inefficient for the improved
building spaces they serve. Determining how to implement a change to smaller
more efficient systems will be much easier and more cost effective as part of the
current work than it will be as part of a separate effort in later years.
Cost Opinions:
Predicting how much flingaffgrt and work will be involved in the repair and/or reconstruction
of the building is difficult at this early stage of review. The single biggest reason is that the
purpose of this study is to determine what's going wrong with the building and then in turn to
offer a prediction for corrective measures that is being made without the benefit of full
planning, design and engineering having yet occurred.
To that end, our approach is to predict the medads for corrective action that are most likely to
be successful, and to do so without benefit of more comprehensive planning, design and
engineering work. Based on our experience, these methods tend to be the ones that do in fact
work out as the best options. However, they do on occasion increase in magr2itude due to
unforeseen circumstances and do also on occasion, decrease in nugnimde due to benefit of
unforeseen opportunities.
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03 : 2 3 PN|
RECE W§gEF 018
R COUNTY CLERK 07 /12/2018 09: 37 AMj
NYSCEF DOCMrliehn Benz RECEIVED NYSCE F: 07/12 /2018
Town of West Seneci
April 28, 2017
Pagel i of 16
In addition, predicting the goststseseciated with time, effort and work is also difficult at this
early stage of review. This is in part a reflection of the preliminary nature of the review
previously described, but it's also a reflection that costs are often being predicted sometimes a
year or more before they will be incurred for the most part.
Stated another way, it's very irsportant we advise the users of this report that terms used for
'Budgets'
cost oninione have very distinct meanings when presented by this office. have a
'Estimates'
different meaning than which in turn have a different meaning than 'Bids'. For
example'
1. Andggly - This is a form of cost prediction which relies on the lowest level of
information available. No form of real design, engineering or planning has occurred.
'blueprints'
There are no to get bids from. Its typically not clear what specific year the
work will occur and its less certain
what type of market conditions, competitions, or
other related may be in effect in the future.
concerns Budgets tend to be more ofan
guess'
'expert's best assessment and based on studied review, trends and past
experiences.
2. Estimates - This form of cost prediction starts to work with a more defined scope of
work, and in turn, with more cost certainty. The project work is typically not fully
developed but some time related to research, design, engineering, market analysis, etc.
has had a much more fuller opportunity to develop. Input from different design
ccñsultañ‡s such as structural,mechanical, electrical, architectural cersetauts, etc. has
been initiated. A schedule, Owner's input, bid and contract condition analysis, and
'blueprints'
more importantly, some level of design, preliminary and specibnon
development has also occurred. Estimates tend to be a more refined 'expert's best
guess'
based on more advanced development of actual design work and known project
conditions.
3. 13-i4.s- This form of cost prediction is more definitive because it comes in the fornt of a
very specifically defined contract scope. The cost analysis changes from an expert's
guess as to what other separate parties will charge for their time, effort, work and risk
assessrnents to an actual cetr:mitmcñt from those separate parties. To get to a bid
commitment, the Owner must finalize some form of project scoping document in
advance, most typically in the form of detailed designs, scope of work descriptions, bid
and construction contract requissents, project specifications, scheduling requirements,
etc.
'budget'
For our purposes today, this report is presenting a very preliraiñary assessment. Our
assessment is as follows:
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FILED: ERIE COUNTY CLERK 09/04/2018 03:23 Pp
RECEI Y EF3: 9 O Q18
· 1
W IAD:Elk‡ COUNTY CIaRK 07/12/2018 9:37 -Kid
NYSCEF DOCMnWht) Frnz RECEIVED NYSCEF: 07/12 /2018
Town of WestSenech
April 28, 2017
Page12 of 16
A. Structural Repairs:
L Demolidons:
a, Vinyl siding/soffits/trims
6, Partial exterior wall sheathing
c. Partial wall insulation
d. Partial roof/attic insulation
e> Partial wood studiplates/blocking
f. Partial interior suspendedceilings
g. Partial electrical disconnects/removals
h. Dumusters,waste.hauline removnis
$35300
2. New Work:
a. Temporary protections
b. Temporaryshoring/bracing- staged
'curb'
c. New concretefoundation
d. New foundation elementsfor door covers
c. New perimeterslabinsulation
f. New wall P,T. stud framing / generalcarpectry
g. New wall P,T, blocking/plates
h. New exterior P.T. structuralwall sheathing
i. New door cover frameassemblies
j. Revised!reinstalledelectrical at walls
k; Reviseddata/low-voltagesystemsat walls
1. Window refurbish/repair|reinstalls
m. New celittiar PVC trim board/watershedprotection
n. New bituminous wall covering protections
o. New wall insulation at exterior walls
p. Spotrepairof wall insulation at selectareasper thermal imaging
q. New insulatedvinyl siding/trim/accessories
r. New imerior drywalt M exterior walls
s. New windowidoor millwork/trim
L New imerior paint
u. New suspendedceiling systems
v. New Gre-ratedceiling facings
w. Finishedelectric 0xturesandreinstalls
x. Finishedfloor orotectiona/rcoairs/renlacement/clening .
S3453700
.B. Roof repairs:
1. Demolitions:
a. Attic insulation removals
b. Attic floor sheathingremovals
c. Roofsbingle and ice-meltsystemremovals
d. Plywood roof deckremovalsat center vault assembly
e. Removalof concealedroof/ceiling insulation at centervault assembly
E DisassemblepreviousTown Roof FrameRepair work
HmEif¾1W1&Jialdi&IemWalt.----...----.----.- .. .
S21,000
2. New worlc
a. Attic spaceventilation modincations (Natural)
b. Attic spaceventilation modiñcations (HVAC Mechanical)
c New attic insulation at trussbottom chords
d. New roof/ceiling insulation at center truss top chords
e. New roof/ceiling insulationat flat roofjoist assemblics
f, Attic spaceaccesshatch safety and insulationmodifications
g. New attic spacefloor / HV AC-accessroute modifications
h. New plywood roof dcok at centervault assembly
i. New insulation at centervault assembly
j. Modiñeations/reconstructionat dormer assemblies
k. New asphaltshinglesat slopedroofs
1. New roof edgemetalwork/trims
m. Newgutters and dowmspouts ..,.
S106,100
213

70
-g-- g-gy-
. INDEX NO. 815187 /2017
¯y-0 018 03:23 Pll
syseng nne .nn 14 .. RECEI EF • 50 O 8
(FILED: ERIE COUNTY CLERK 07/12/2018 09:37 AM
NYSCEF DOCMWm Qnz RECEIVED NYSCEF: 07 /12 /2018
fown of WestSeneca
April 28, 2017
Page 13of 16
C. HVAC ChangeRecommendation:
l. Demolitions:
a. Dis-assemble/removeexisting HVACpackaged units from attic spaces
b. Dis-assembleexisting combustion air & ventilation mechanicalsystems
c Dis-assembleandremovewood frame end walls and relatedsiding for access
d. Qumpgersmage,)gulingdemoYalt--.---------------
$20,600
2. New work:
a, 4-6 new smaHerItVAC units/condensers
b. 2-3 new make-up-airunits
c. Revise/reconstructtoilet room exhaustsystems
d. Revise/reconstructduct work systems
e. Reconstruct/refurbishvarious electricaUmechanicalmods
f. Reconstruct/revisewood frameend wall construction
g. New end wall exterior sidin
$156,000
D. Cost Opinion Totals:
1. StructuralRepairs $381,500
2. Roof Repairs $127.100
3, livACfÇ]hnuggaggaggypfgigri___,___,,_$17_6#_0
Sub-total $685,200
L lilul$hatelelinPsyll0%L____---1§8ER
Sub-total $753,720
Sub-total $866,778
ProfessionalFeas(9%) $ 78.010
Sub-total $944,788
Baiggilspa 9fl5°(a) . .... .$ 47.739
Total Alteration and Repair: $ 992,027

214

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FILED: ERIE COUNTY CLERK 09704/2018 03:23 INDEX NO. 815187 /2017
PM
NY9CFF Dnr . NO 14 . RECEI Y F ·. 50 4/ 8
(FILED: ERIE COUNTY CLERK 07/12/2018 09:37 Aldl E 8'1 .,
NYSCE F DOC tD!" 0 lZ RECEIVE D NYSCE F : 07 /12 /2018
lown of estSeneca
April 28, 2017
. Pagei4 of 36
E. Cost Opinion for separateoption - ReplaceBailding with eoderequiredmodifications:
1. $cope
Building Demolition
$45,000
Slfgark:limilei ....-.....-. ....... ..-- --.-.---------...-.

$120,000
Enundatisawork:dimiteL_____________--.____.___.______-
$32,000
Carpentry
Roofing
Siding
WindowsjDoors
Finishes
Mechanical/ElectricavPlumbing
Tel/IT/Data/Com
Millwork
Temp Storage/ Replacementof FF&E
Etc.
$1,144,000
Design-phasecontingencvf5%) .... 67,050
Constntethnwnhasecontinecacvf10%) $ M0203
Profesionai Feesf9%) $ 139,397
Bub-total $1,688,252
h2intExp ps $ 84 412
Total Reconstruction and Replace: $1,772,664
Notes:
L Thiscost opinion assumestheDavis-Baconand other related NYSActs regarding prevailing wageandfHnge

benefitswitt apply to thework.
2. This cost opinion assumesthe WicksLaw and other NYSlaws regarding the use of muhipleprime contractors will
apply to the work.
3 Due to the relatively new nature ofthe existing <nnstructionand it having had occunredaller the implementationof
various NYSand Federal laws restricting their use, this cost opinion assumesthere is no needto accountfor the
presence,testing, and/or removalqf hazardousmaterials.
215

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NYSCEF DOC NO 14 RECE EF

[FILED : ERIE COUNTY CLERKEi2/2018 09:37 _A1 0Ÿ0
NYSCEF DOCMrA¾n knz RECEIVED NYSCEF i 07/12/2018
Town of WestSeneca
Apr0 28, 2017
PagelS of 16
Observations / Reccmmendations:
1. The problems we found in this building related to structure will not improve on their
own without interv6ñtion, nor in our opinion will they remain stagnant. With a further
understanding the problems are inherent to an improperly designed and engiñeered
buildmg, our review shows it is highly unlikely that even a more aggressive and
kñowledgeable preventative maintenance program will be successful in stopping the
engoing deterioration and mbeqüent onset of structural damage the building is already
starting to experience.
2. The problems we found in this buildng related to heat loss and related building
cñvelopc energy conservation efficiencies will also not improve without intervention.
While the Town may have had some successes in alleviated past problems related to ice
accumulation, our review shows the improvements were not enough to overcome
significant problems inherent to an improperly designed and engineered building
envelope, primarily at the roof essemblies, and that there is evidence that concealed
conditions of deterioration remain.
3. The problems we found related to health and safety etandards at emergency egress
doors do not contribute to belldir.g deterioration as previcüsly discussed, but they do
represent potential liabilities to the Town.
4. The problems we found related to the design, configuration and inaccessible nature of
the 2 primary HVAC units are not conditions of specific building deterioration or
potential liability as previously referenced. However, it does represent a pending
maintenance and irsproveñ1cat challenge as well as a separate contributor of problems
related to energy efficiency and systems performance. As such, we advise the
improvement of the condition be considered as part of any other improvements being
discussed within this report.
5, Based on our review, and despite clear and professicñal efforts to properly maintain the
building, it is our professional opinion this building should be considered a poorly
designed, engineered and constructed building. The finding typically results in a
building that does not provide as long of an effective service life as the building should
have been reasonably expected to enjoy. It also typically results in a building that
consumes more excessive effort and resources to reintA over time.
6. Based on our review, we have determined it would be more cost effective to alter and
repair the existing building than to demolish and reconstruct it.
7. And finally, the cost opinions provided in this report are based on a traditissal
Design/Bid/Build approach to p'.mning, procurement, and construction typical for the
Western New York market. Please be advised there are other approaches to consider
that are both allowed under NYS public precurercent rules and which will likely be
more effective in reducing costs for the work.
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(FILED: ERN COUNTÝ DLER¯K 09/04)__2018 03:23 PN|
NO.
NYSCEF DOC _ NO - 14 RECEIVED NYSCEF: 09 04/2018

: ERIE COUNTY CLERK 07/12/2018 09: 37 Inosx No. e151 ,7 /2017
(FILED j5g
NYSCE F DOCMrlehn F3nz RECEIVED NYSCEF: 07 /12/2018
Town of WestSeneca
Apiil 28, 2017
Page16 of 16
Closing:
Thank you for the opportunity to be of assistance in this matter. Please contact me if you have
any questions or require more information.
RespectfullySubmitted,
Building Science Services, LLC
Kenneth W. Pearl, RA
NYS ArchitectRepstreñaiiNo.025221
Attachments: Exhibits 01 thru 14

217

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EXHIBIT E - WEST SENECA'S VERIFIED NOTICE OF CLAIM

PURSUANT TO CPLR 214-D [INCORRECT VERSION] [74-78]
IF ILED : ERIE COUNTY CLERK 0 9 / 0 4 72 018 03 : 23 INDEX NO. 815187/2017

Ply
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09 04 /2 018
09: 37 INDEX NO. 151 7 /2 17
|FILED : ERIE COUNTY CLERK 07/12/2018 A14
NYSCEF DOC. No 4 20 EIRTU1TRED
NTEM: 1Q7W/ AM2 0
AFFIDAVIT OF SERVICE
SUPREMECOURT: COUNTY OF ERIE
inXMalter of the Claims of

Affidavit of Service
The Town of West Seneca,New York
Verified Notice of Claim
-against- Pursuantto CPLR 214-d
Kidency Architects, P.C,,

(f/k/a Kidency Architects, Laping JaegerAssociates,P.C.)
STATE OF NBW YORK )

COUNTY OF ERIE) SS:
Michael R. Murray, being duly sworn, deposesand saysthat he is over 1.8years of age and not a party to this
56
action; that on the day of December, 2011 at spprodmately 4:38PM at 143 GeneseeStreet, Buffalo, NY 14203,
deponentservedthe annexedVerified Notice of Claim Pursuantto CPLR214-d On Kideney Architects, P.C.,
(f/k/a Kideney Architects, Laping JaegerAssociates,P.C.), the defendantnamed herein, in the following manner:
Individual By delivering to and leaving with personally, a true copy thereof, and that he knew
the person so servedto be the personmentioned and describedin said
X Corpurniiun By delivering to and leaving with Raymond Bednarski, a principal at Kidney Architects, P.C.,
(f/k/a Kideney Architects, Laping JaegerAssociates,P.C.) and he knew the personso servedto
be the personmentioned and describedin said Verified Notice of Claim Pursuantto CPLR 214-d.
Respondble By delivedng to and leaving with , a true copy hereof, a

Party personof sukuble ageand discretion, Said premisesbeing the defendant's (dwelling place)(usual
place of abode)(placeof businesswithin the Stateof New York.
_Substituted By affixing a true copy thereof to the door of said preinisesthe samebeing the
Service defendants(dwelling plawf(wal place of abode)(placeof businesswithin the StateofNew
York.
_Mail Deponent also serveda copy of the by depositing a true copy of the same
in a post-paid, properly addressedenvelope in an official depository under the exclusive careand
custody of the United Statespost office in the Stateof New York
X Previous Deponent had previously attemptedto servethe ±eve-need defàadâñt(s) pursuantto Attempts
CPLR Sec 308
at 143 GeneseeStreet,Buffalo, NY 14203on the 18 day of December, 2017 at 9:15 AM
at 143GeneseeStreet, Buffalo, NY 14203on the 46 day of December, 2017 at3:00 PM
1Descrip, The person servedwould be describedas app=:±edy:_§]L Years of age 250 Lbs
6 Ft 1 In_X_male_female Oray hair White skin heyes
XMilitary To my best knowledge, information and belief the said defendant at the time of.service wasnot
engagedin military service of the (Jolrsd State.
NM ry ablic
Plfdil$ E. MOSKINS
218

75
FILED ERIE COUNTY CLERK INDEX NO. 815187 /2 017

: 09/04/2018 03: 23 P1d
NYSCEF D00 NO 14 ... . .... ...
tMRW 1N9a o RECEIVED ir£ESHh 10//3119//2010/3
STATE OF NEW YORK


OF CLAIM PURSUANT
TO CPLR 214-d

(f/k/a/ Kidency Architects, Laping Jaeger As.sociatcs, P.C.)
___.______________---
TO: Kidency Architects, P.C.

(f/k/a Kidency Architects, Laping Jaeger Aasdates, P.C.)
143 Genesee Street
Seneca"
"Claimant"), has claims and hereby gives notice of its claims against Kideney Architects, P.C.
(f/k/a Kidency Architects, Laping Jaeger Associates, P.C.) ("Kideney") for damages sustained in
connection with Kideney's performance of professional knd±cepe architectural services for the
construction ofthe Charles E. Burchfield Art & Nature Centerlocated at200t Union Road in the
Town of West Seneca, County of Erie, State of New York (the "Art & Nature Center"), In
l. The name and post office address of the Claimant is Town of West Seneca, New
York, 1.250 Union Road, Suite 2, West Seneca, New York 14224. The name and post office

219


FILED: ERIE COUNTY 09/0472018 03 : 23 PMI
NYSCEF DOC. NO. 14 . ..... . ........ RECEIVED NYSCEF: 09/04/2018
L102LQSt 23 INDEX NO. 815187/2017
AM)
tWFW M.• tW9.• 110 Elsth)Id6sEstM: XPJ//.tuy/AIn/8
2. Upon information and belief, Kidency, at all relevant times, was and is an
architectural firm licensed in the State of New York.
defects proximately caused by Kideney's negligence in providing professional design services
for construction of the Art & Nature Center including, but not limited to, its failure to design the
Art & Nature Center to witlistâñd site ëñditiers, including inadequate design of the floor slab,
inadequate design of the grade surrounding the Art & Nature Center, inadequate design of the
ground clevatióñ, and inadensate investigation of the real property. The referenced professione
architectural services were performed by Kideney more than 10 years prior to the date of these
claims.
4. As a result of Kideney's negligence in the performance of its professional design
services, siguiñüãüt property damage has occurred and centhiacs to occur to the Art & Nature
Center. The errors or omissions and other negligence have additionally exposed members of the
public to risk of bodily injury as the public facility structure continues to fail.
5. West Seneca has been damaged in an amount which has yet to be fully
escertajñcd, but which is believed to exceed $1,772,664.00. West Seneca's damages continue to
accrue.
WHEREFORE, Claimant West Seneca hereby gives notice to Kideney pursüâñt to NY
ÇPLR 214-d of its claims in an amount which exceeds $1,772,664.00.
2
220

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ERIE COUNTY PM INDEX NO. 815187/2017

[F1LED : CLERK 09/04/2018 03:23
70 Q18
E 1 1f 18
ÊñÈÓ QQTJNTY GLEBX é7/12 /203 OS c 37 AN
# 1% to Reefantum asasea: lar/Alar acr8
Dated:Novembert$_,2017
Jol J. Fenz, Esq.

A orney For C½ant
1250 Union Road
3
221

INDEX NO. 815187/2017

FILED: ERIE COUNTY CLERK 09 / 0 4 /2 O18 03 : 23 P1
NY. RECEI Y EF3:15Q O /2 18
sacrano wantem: sort/nt/Amna
VERIFICATION
STATE OF NEW YORK )

)
currently resides in the Town of West Seneca, County of Erie, State of New York; that he/she is
the Town Attorney of the Town of West Seneca, New York, that he/she has read the forgoing
Verified Notice of Claim and knows its cañicñts thereof; that the same is true to his/her own
kñow!cdge, except as to the matters therein stated to be alleged upon informaticñ and belief and
that as to those matters, he/she believes them to be true.
Sw( in to before me this

27 t ay ofNovember, 2017.
Notary Public
AuNAN.IRWIN
New York
Motary Public.State of
Qualifled In Edo Count
VAyCommis$1onFatpires
4
222

EXHIBlT B - AFFIDAVIT OF BRIAN LOUIS, R.A.,

DATED SEPTEMBER 4, 2018 [79-80]
FILED : ERIE COUNTY CLERK 0970¯472018 03 : 23 P INDEX NO. 815187/2017

STATE OF NEW YORK

---...---.-------..-,.--.------
Plaintiff
vs. AFFIDAVIT
Index No. 815187/2017

Defendant
----------------------
STATE OF NEW YORK.}
COUNTY OF ERIE } ss.
BRIAN LOUIS, R.A., being duly sworn, deposes and says:
L That I am a registered architect and President of Louis Design Solutions
Architecture, LLC, the Defendant in the above entitled action.
2, I reviewed the allegations contained in the Town of West Seneca's Verified
Complaint and the attachments. I have also reviewed file materials in the possession of
Louis Design Solutions in connection with the Charles E, Burchfield Nature & Art Center.
3. In November 1998 my company prepared the architectural drawing portion
of the construction drawings for the Burchfield Center. Louis Design Solutions then
continued to provide architectural services to the Town of West Seneca in connection with
the construction of the Burchfield Center as a sub-consultant to Nussbaumer & Clarke, Inc.
223

80

FILED : COUNTY CLERK 09/0472018 03 : 23 PR
4. According to the Complaint, in approximately July 1999, construction of the
BurchfieM Center began, and in March 2002, the Burchfield Center building was complete.
Louis Design Solutions has not provided any architectural or other services in connection
with the Charles E. Burchfield Nature & Art Center in over ten years.
BRIAN LOUIS

day of_½$3ybey 2018 amsnon
R P
otery Public
224

81
DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS,

DATED SEPTEMBER 4, 2018
[MEMORANDUM OF LAW INCLUDED FOR PURPOSES OF
DETERMINING PRESERVATION ONLY][81-89]
IFILED: ERIE COUNTY CLERK 09 /04 / 2018 03 : 23 P INDEXNO. 815187/2117

NYSCEFDOC.No. 16 RECEIVED
NYSCEF:09/04/2 118
STATE OF NEW YORK

Plaintiff
vs. MEMORANDUM OF
LAW
Index No. 815187/2017

Defendant
.STATEMENT OF FACTS
Plaintiffbrings an action against LODIS DESIGN 5OLUTIONS for
architectural malpractice related to services it provided in connection with the
construction of the Charles E. Burchfield Nature & Art Center. The arcN†mtural
drawings provided by LOUIS DESIGN SERVICES were completed prior to March
2002. In March 2002, WEST SENECA certified that the Burchfield Center Building
was complete. Plaintiff TOWN OF WEST SENECA did not bring an action in
connection with the purported arnkhtnrnl malpractice of LOUIS DESIGN
SOLUTIONS until July 12, 2018, over sixteen years after the building was certified
complete and more than thirteen years beyond the applicable statute oflimitations,
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ARGUMENT
PLAINTIFF'S CLAIM AGAINST LOUIS DESIGN SOLUTIONS IS

TIME BARRED.
"In a suit by a constraction project owner against a general contractor and
architect for defective construction and design, the cause of action generally accrues upon
"
the completion of construction, meaning completion of the actual physical work S_tat.e
v. Lundin, 60 N.Y. 2d 987, 989, 459 N.E. 2d 486, 471 N.Y.S. 2d 261 (1983). "An
action to recover damages for malpractice ... regardless of whether the underlying theory
is based in contract or tort, is subject to a three-year statute of limitations A cause of
action to recover damages for professional malpractice . . . for defective design or
construction accrues upon the actual completion of the work to be performed and the
relaticaship"
consequent terrnination of the professional Regenev Chib at Walikill.
LLC v. Appel (2''d

Design Groupi P.A., 112 A.D. 3d 603, 606, 976 N.Y.S., 2d 164
Dept., 2013).
It is undisputed in this case that the construction of the Charles E. Burchfield
Nature & Art Center was completed in March 2002. The three-year statute of limitations
to bring an action for architectural malpractice expired in March 2005 therefore
Plaintiff's claim is time barred and the Complaint must be dismissed.
PLAINTIFF'S CLAIM THAT THEY SERVED A NOTICE OF

CLAIM PURSUANT TO CPLR 214-d DOES NOT EXTEND THE
STATUTE OF LIMITATIONS IN THIS CASE BROUGHT BY THE
OWNER OF THE PROPERTY.
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P$
In Cubito v. Kreisberg, 698 A.D. 2d 738, 419 N.Y.S. 2d 578 (2nd Dept., 1979),
Plaintiff tenant fell in the laundry room of her apartment house and brought an action
against the Defendants, the realtor and architects, to recover damages for personal
injuries based on Defendant architect's negligence, alleging that the Defendant architect
so negHgently planacd and designed the construction of the laundry room that water
collected on the floor causing her injuries. In that case, Defendant architect moved to
dismiss on statute of limitations grounds, establishing that the construction on the project
was substantially completed by July 13, 1972, a certificate of occupancy was issued on
April 27, 1973, and on May 3, 1973 the architect certified to the owner that the work had
been fully performed, The architect established that since that date it had had no
involvement with the project. Defendant argued that the three-year limitation for
malpractice actions applied, that Plaintiff's action was brought well beyond the three-year
period and was therefore barred.
In Cubito v. Kreisberg, the Second Department affinned the Trial Court's Order
that the Plaintiff's claim was not barred by the statute of limitations, halding that the
statute of limitations applicable to the liability of Defendant architects for injuries
suffered by Plaintiff due to their negligence ran from the date of the injury. Most
importantly, the Court noted that malpractice, in its strict sense, means the negligence of
a member of a profession in his relations with his client or patient. The Court noted that
in the case at bar the Plaintiff was not and never had been in a prefessioñâl
relationship with the architect. Therefore, malpractice in the statutory sense described
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Plv4
the negligence of a professional toward the person for whom he rendered a service,
and an action for malpractice springs from the correlative rights and duties assumed by
the parties through their relationship. On the other hand, the wrongful conduct of the
professional in rendering services to his client resulting in injury to a party outside the
relationship is simple negligence, Cubito, 698 A.D. 2d @ 742.
Based on this analysis, the Court found that a claim based on negligence, not
malpractice, arose when the wrongful invasion of personal rights occurred by reason of
conduct of the wrongdoer. Since the Plaintiff in the Cubito case had no professional
relationship with the Defendant, they were suing on a claim of simple negligence,
therefore the action for damages accrued when Plaintiff fell as a result of the Defendant's
claimed negligence. Therefore, this personal injury Plaintiff, who had no contractual or
other relationship with the architect prior to the date of her injury was allowed to proceed
with her claim. The Court concluded that it would be unresseñabic to apply the statute so
as to extinguish a claim against the Defendant architect for his negligence prior to the
time that the injury had been sustained or that an action could have been brought to
recover damages for the injury.
It is in this context that CPLR 214-d was passed inasmveh as it protects architects
from claims such as the one interposed in Cubito by imposing the requirement of service
of a Notice of Claim and also including a heightened standard for elaimants to survive
Motions for Summary Judgment and motions to dismiss.
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03:23_ PR
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I VEDNYSCEF: 09/04/;018
In contrast, in Hart v. Moray Homes Limited, 158 A.D. 2d 890, 551 N.Y.S. 2d
(3rd
684 Dept., 1990), the Plaintiff brought an action against the Defendant Moray
Homes Limited, the builder of their home, stemming from a fire in and around the
fireplace chimney. In that case the home was completsi in 1977 and the fire occurred in
April 1984. Plaintiff sought to avoid the consequences of the six-year statute of
limitations for a contract action by asserting that the cause of action did not accrue until
the fire damage occurred. The t alleged negligent design and construction,
Cmp
breach of warranty, strict liability and breach of contract. The Third Departñient found
that in construction cases, causes of action based on defects in construction accrue upon
c:::;:"
n of the actual physied work under the terms of the contract. Assertions
of negligence or fraud cannot serve to extend the life of the claim. It was noted that all
causes of action had as their genesis the contract and its breach in the construction of a
defective chirancy. H_ar.( cited State of New York v. Lundia, supra, and concluded that
in seeking to recover consequential damages to the house, Plaintiffs could not avoid the
true nature of their claim against Defendant, and their failure to assert the claim for the
Plaintiffs'
fireplace defect within six years of its construction foreclosed right to relief.
I_ar_t, 158 A.D. 2d @891.
In a similar analysis, in Structure Tone. Inc. v. Universa Servs. Group, LTD.,
87 A.D. 3d 909, 929 N.Y.S. 2d 242 (1st Dept., 2011), while Third-Party Plaintiff
attempted to assert claims for contribution by casting its claims in tort, the Court found
that the claims were actually based on alleged breaches of an express contract. Claims
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for contribution, the Court found, are governed by CPLR 1401 and apply to damages for
personal injury, injury to property or wrongful death. Importantly, the Third Department
noted that in the instant case there was no personal injury and that a purely eccñêmic
property"
loss resulting from a breach of contract does not constitute an "injury to
within the1ñcaning of the statute governing contribution claims. This principle was
upheld by the Bronx County Supreme Court in New York CitySch. Constr. Auth. v.
Adam?s Eur.Contr. Inc., 55 Misc. 3d 1223(A)(2017). Again, in that case the
Deféñdañt commanned a third-party action seeking contribution and indemnification
against the Third-Party Defendants asserting that the damages alleged by the Plaintiff
were attrNuah to prior construction related services the Third-Party Defendants had
provided. The Court noted the Court of Appeals decision in Dole v. Dów Chbráicrd, 30
N.Y. 2d 143, 282 N.E. 2d 288, 331 N.Y.S. 2d 382 (1972) and concluded that purely
economic loss resulting from breach of contract does not constitute injury to property
within the ñicaning of the statute. Where the nature of the underlying liability for which
contribution is sought is based exclusively on a breach of centract it falls outside the
scope of the contribution statute.
Plaintiff attempts a similar sleight of hand in the instant case. Plaintiff attempts to
couch itself as a completely detached third-party, with no relationship to the Defendant in
this action, who sustained "property damage". Plaintiff does this to avoid its clear failure
to commence the action within the proper statute of limitations. This scenario is not that
envisioned by the Court in cases such as Cubito v. Kreisberg and similar claims upon
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which CPLR §214-d is based. Section 214-d is intended for those circumstances where a
third-party, not in privity with the architectural fmn, sustains personal injuries as a result
of that architect's alleged negligence. Necessarily, that individual could not have brought
an action within the three-year statute of limitations for architectural malpractice because
! they would have no way of predicting that, many years later, they would suffer a personal
injury.
(2nd
In Gelwicks v. C‰nshc", 257 A.D. 2d 601, 684 N.Y.S. 2d 264 Dept.,
1999), Plaintiffs brought an action against a professional engineer because of defects in
the septic system he designed. The action was brought in 1997, the year the Plaintiffs
claimed the deniages became apparent. The Court held that the cause of action accrued
Defendants'
upon the completion of work in 1993, thus, the action was untimely
commenced and must be dismissed.
Finally, in Witt v. Merrill, 19 A.D.3d 998, 797 N.Y.S. 2d 218 (4* Dept., 2005),
Plaintiff sued an engineer alleging his inspection of the soil upon which she built her
resideñce was ñegligcat. The Fourth Department diemassed the case, finding the
cause of action accrued in 1993, when he conducted the soil study and issued his report,
not in 2003, when Plaintiff discovered the damage to the foundation of her residence.
In the instant case, the Plaintiff's cause of action accrued when the construction
was complete. Plaintiff was present on the property and had at its disposal engineers and
other professionals who could have observed and documented any purported malpractice
on behalf of any of the design firms involved in this construction. Plaintiff and
231

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PM
NYSCEFDOC. NO. 16 RECEIVEDNYSCEF: 09/04/ 018
DehAnt are in privity and have a relationship that existed since 1999. Plaintiff is not
.an innocent third-party with no knowledge or connection to the construction contractors.
As such, they were required to commence their action within the applicable three-year
TO PERMIT THIS ACTION TO PROCEED WOULD RESULT IN

EXTREME PREJUDICE TO THE DEFENDANT.
LOUIS DESIGN SOLUTIONS completed its work on the Burchfield Center in
2002. It had no reason to believe that there was any issue or any claim of negligence in
connection with its design work until service of the Notice of Claim in December 2017..
Once three years had passed from the date of is completion of work on this project,
LOUIS DESIGN GROUP had no reason to retain site plans, notes, documents, emails,
memorandum or any relevant documeñtation in conüéctics with its design work as the
three-year statute of limitations had expired. This is the reason statutes of limitations
exist. In addition to the possibility of lost evidence and documents, there is the passing
away of key witnesses and the fading of memories. In this case WEST SENECA was in
the most ideal position to bring a claim for architectural malpractice against LOUIS
DESIGN SOLUTIONS at any time during the three-year period following its
completion of the work. It failed to do so. It should not now benefit from its failure to
properly commence this action.
CONCLUSION
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The three-year statute of limitaMons applicable to claims of architectural
malpractice applies in the instant case. Plaintiff cannot mmipulate the provisions of
CPLR §214-d in order to escape its failure to properly commence the action. CPLR
§214-d was not intended to cover claims by entities with a contractual relationship with
the architectural professional As such, the instant claim must be dismissed

Buffalo, New York
HILARY C. B KER, ESQ.

BURGIO, CU VIN & BANKER
496 Main Street
Buffhlo, New York 14202
(716) 854-1744

925 Clinton Square
(585) 473-310
9 of 9
233

90
AFFIDAVIT OF MATTHEW D. HOLMES, ESQ. IN OPPOSITION TO MOTION

FILED: ERIE CO NTY CLERK 09/2772018 04:50 INDEXNo. 815137/2017

P14
NYSCEF DOC.NO. 21 RECEIVEDNYSCEF:D9/17/2018
STATE OF NEW YORK

____
Plaintiff
-against- AFFIDAVIT IN
TO DIS.MISS
Index No. 815187/2017

Defendant
STATE OF NEW YORK )
L I am an associate attorney at Ernstrom & Dreste, LLP, attorneys for the Town
of West Seneca ("West Seneca") and have reviewed all of the project records that are in the
possession of the Town that relate to the construction of the Charles E. Burchfield Nature &
"Project"
Art Center (the or the "Burchfield Center"). As such, I am thoroughly familiar
with the facts and onoumstañces at issue.
9n205c° A
s 2. I make this affidavit in epposition to Louis Design Selntions Architecture,
LLC's (f/k/a Louis Design Group) ("Louis Design") motion to dismiss pursuant to CPLR.§§
214(6) and 3211(a)(5).
1 of 2
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NYSCEFDOC. NO. 21 RECEIVEDNYSCEF: 09/ 27/2018
3. West Seneca duly filed a Notice of Claim against Louis Design pursuant to
CPLR §214-d prior to comracacing this action. Attached hereto as Exhibit 1 is a true and
coraplete copy of West Seneca's Notice of Claim.
4. West Seneca commenced this action by the filing of a Suñunañs and Verified
Complaint on July 12, 2018. Attached hereto as Exhibit 2 is a true and complete copy of
the Summnm and Verified Complaint.

Z1h
day of September, 2018
Notary Pub c
Halley E Beers
Monroe County - No. 01BE6357714
Commission Expires:April 24, 20,,2-1
&DRE
925CLINTONSQUARE
ROCHESTER,NY14604
2 of 2
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92
EXHIBlT A - VERiFiED NOTICE OF CLAIM PURSUANT TO CPLR 214-D
(CORRECT VERSION) [92-94]
COUNTY CLERK 10 /26 /2017 10 : 46 INDEX NO. 815187/2017

IFILED: ERIE AT
STATE OF NEW YORK


OF CLAIM PURSUANT
TO CPLR 214-d

443 Delaware Ave,
Seneca"
"Claimant"), has claims and hereby gives notice of its claims against Louis Design Solutions
Architecture, LLC, f/k/a Louis Design Group ("Louis Design") for damages sustained in
connection with Louis Design's performance of professional architeetral services for the
construction of the Charles E. Burchfield Art & Nature Center located at 2001 Union Road in the
Town of West Seneca, County of Erie, State of New York (the "Art & Nature Center"). In
1. The name and post office address of the Claimant is Town of West Seneca, New
York, 1250 Union Road, Suite 2, West Seneca, New York 14224. The name and post office
2. Upon infermatioñ and belief, Louis Design, at all relevant times, was and is an
architectural firm licensed in the State ofNew York.
1 of 3
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INDEX NO. 815187/2017

FILED: ERIE COUNTY CLERK 10 / 2 6 / 2 0 17 10 : 4 I-Ald|
defects proximately caused by Louis Design's negligence in providiñg professicñal design
services for constñictión of the Art & Nature Center including, but not limited to, its failure to
design the Art & Nature Center to withstañd site conditieñs, including inadequate design of the
exterior walls, inadequate design of the floor slab, inadequate design of the grade surrouñding
the Art & Nature Center, inadequate design of the ground elevation, inadequate design of the Art
& Nature Center's four egress doors, and inadequate investigation of the real property. The
referenced professional architectural services were performed by Louis Design more than 10
years prior to the date of these claims.
4. As a result of Louis Design's negligence in the performance of its professional
design services, significant property dainage has occurred and centinüés to occur to the Art &
Nature Center. The errors or omissicñs and other negligence have additioñally exposed
members of the public to risk of bodily injury as the public facility structure continues to fail.
5. West Seneca has been darsagcd in an amount which has yet to be fully
ascertaiñcd, but which is believed to exceed $1,772,664.00. West Seneca's damages continue to
accrue.
WHEREFORE, Claimant West Seneca hereby gives notice to Louis Design pursuant to
NY CPLR 214-d of its claims in an amount which exceeds $1,772,664.00.

. Fenz, Esq.
ttey For Claimant

wn of West Seneca, New York
1250 Union Road
2 of 3
237

IFILED : ERIE COUNTY CLERK 10¯/2 & / 2 017 10 : 4 6 AM INDEX NO. 815187/2O17
VERIFICATION
STATE OF NEW YORK )

)
currently resides in the Town of West Seneca, County of Erie, State of New York; that he is the
Town Attorney of the Town of West Seneca, New York, that he/she has read the forgoing
Verified Notice of Claim and knows its contents thereof; that the same is true to his own
lawwicage, except as to the matters therein stated to be alleged upon information and belief and
that as to those matters, he believes them to be true.
... - -
303ay of September 5017.
Notary Public
AlfNA N.IRWIN
Public, state of new yom
Quantled in Gdé‰nt .
3 of 3
238

EXHIBIT B -
SUMMONS AND VERIFIED COMPLAINT

239

96
AFFIDAVIT OF JOHN FENZ, ESQ. IN OPPOSITION TO MOTION

ED: ERIE COkNTY CLERK 09/27/2018 04:50 INDEXNO. 8151r//2017

P14
DOC.NO. 18
NYSCEF RECEIVEDNYSCEF:09/27/2018
STATE OF NEW YORK

Plaintiff
-against- AFFIDAVIT IN
TO DISMISS
Index No, 815187/2017

Defendant .
STATE OF NEW YORK )
COUNTY OF ERIE ) ss:
JOHN FENZ, ESQ., being duly sworn, deposes and says that:
1. I am the Town Attorney for the Town of West Seneca ("West Seneca") and
have reviewed all of the project records that are in the possession of the town that relate to
"Project"
the construction of the Charles E. Burchfield Nature & Art Center (the or the
"Burchficld Center"). As such, I am thoroughly familiar with the facts and circumstannes
at issue.
2. I make this affidavit in opposition to Louis Design Roh:tióm Architecture,

S²5c
LLC's (f/k/a Louis Design Group) ("Louis Design") motion to dismiss pursuant to CPLR
§§ 214(6) and 3211(a)(5).
1 of 5
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P¼
LOUIS DESIGN'S WORK ON THE PROJECT
3. The Town had no contract or contractual relationship with Louis Design to
perform design related services for the Project.
4. Instead, Louis Design served as a sub-consúltant to Nüssbaumer & Clarke,
Inc. ("NCI") in comection with the Project, and agreed to provide construction drawings
and architectural work on behalf of NCI.
5. I have reviewed the Affidavit of Brian Louis, R.A., which correctly notes
that Louis Design served as a sub-consultant to NCI in connection with the Project.
6, During the course of the Project, Louis Design provided NCI with
professional architectural design services and provided NCI with advice,
recomm d and drawings to support the design and ultimate construction of the
fiens,
Project.
7. Attached hereto as Exhibit A are copies of selected documcats for the
Burchfield Center that were signed and sealed by Louis Design.
8. Louis Design was involved with the design of and provided professional
..
architectural services as it related to the grade surreeding the Burchfield Center.
9. Louis Design was also involved with the design of and provided
professional architectural services as it related to the ground elevation surrounding the
E Burchfield Center.
925CUNTONSQUARE 10. As further discovered by the Town, issues relating to the grade and ground
NY14604
ROCHESTER,
elevation caused the damage to the Burchfield Center.
DAMAGE TO THE BURCHFIELD CENTER
11. In or about January 2017, the Town first noticed unusual building damage
and structural deterioration at the Burchfield Center.
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..
12. As a result, the Town retained the services of Building Science Services,
LLC to investigate the cause and extent of the damage.
13. On April 28, 2017, Building Science Services, LLC prepared a report with
respect to the cause of the damage to the Burchfield Center (the "Report"). A copy of the
Report and its relevant exhibits are attached hereto as Exhibit B.
14. The Report determined that the Burchfield Center was improperly designed
and constracted and that the cause of the current property damage was an original design
failure.
15. The Report also determined, among other things, that the "confusing,
improperly designed, and poorly coerdinated specification as to where the ground
elevations were intended to be was very likely caught during construction activities and
quickly became a significant and open problem that faced the designertand project
managers,"
and that "it's clear that someone determined that the conflict in finished grade
specifications was to be resolved by leaving the finished floor elevatica at 625 feet and
details."
shown in the civil/site drawings and
16. According to Building Science services, LLC, the original design created a
violation of the then applicable 1984 (Rev. 1996) NYS Uniform Building Code, and the
ERNSTROM
&Drgsrs configuration and condition and the Burchfield Center is in violation of the current NYS
925cUNTONSQUARE Property Maintenance Code.

NY14604
ROCHESTER,
17, Most importantly, the Town learned that the improper design setting the
grade and ground elevatióñs around the Burchfield Center led to the exterior wood wall
surfaces being exposed to periodic condidens of moisture for years, and that exposure
caused the current damage to the Burchfield Center.
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18. The Town had no prior knowledge of the property damage to the Burchfield
Center because it took years of repeated exposure to manifest.
19. Based on the Report, the Town determined that there was a substantial basis
in law to believe that Louis Design's negligence was a cause of the property damage to the
Burchfield Center.
STATUS OF THE BURCHFIELD CENTER
20. As presently ascertained, the Burchfield Center is only capable of limited
use and has experienced, among other things, the following property damage: wall
settlement manifested by locking hardware that bursts off double hung windows, a
significant amount of differential wall settlement near window locations, wood rot at the
bottom of the walls of the Burchfield Center, and overall differential settlement of the stud
walls to the extent that collapse is not out of the question.
21. With winter approaching, the Burchfield Center will be consistently
exposed to rain and snowmelt that.will continue to rot the wood at the bottom of the walls
and further damage the structural integrity of the Burchfield Center.
22. Contrary to any allegations stating otherwise, the Town has suffered
property damage to the Burchfield Center and is alleging that the Burchfield Center has
suffered property damage.
ERN9S
925CLINTONSOUARE
ROCHESTER,NY14604
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NYSCEF DOC. NO. 18 RECEIVEDNYSCEF: 09 7/2 018
JO F 4, ESQ.

1 2018
, day of September,
Notary Public
ALINAIt IRWIN
Stateof NewYork
trotorf Public,
Qualmed In Eric Cou ty
Commission Expires
Wly
925CUNTONSQUARE
NY14604
ROCHESTER,
s of s
FILED: ERIE COUNTV CLERK 09727 /2018¯04 : 50 PM INDEX NO. 815187/2 017
NYSCEF DOC. NO. 19 RECEIVED NYSCEF : 09/27/2018
TOWN OF WEST SENECA - JOB # B-9902

PAUL T CLARK SUPERVISOR
JERRYM. HICKS CHRISTOPMERF
OSMANSKI
VINCENT./ 2 CD
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WROBLEWSKI CD
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PROUDPAST 3 UNLMf/TEDFUTURE \¶
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LIST OF DRAWD1QS
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129
PLAINTIFF'S UNIFORM/JOINT MEMORANDUM OF LAW,

DATED SEPTEMBER 27, 2018
DETERMINING PRESERVATION ONLY] [129-148]
[FILED: ERIE COUNTY CLERK 0 9 / 27 / 2 018 0 4 : 43 INDEX NO. 817954/2017

Pli
STATEOF NEW YORK

Plaintiff,
-against-
Index No. 815185/2017
NUSSBAUMER & CLARK, 1NC.
Defendant.
STATE OF NEW YORK

THE TOWN OF WESTSENECA, NEW YORK,
Plaintiff
-against-
Index No. 815187/2017

Defendant.
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STATE OF NEW YORK

THE TOWN OF WEST SENECA, NEW Y ORK,
Plaintiff
-against-
Index No. 817954/2017
KIDENEY ARCHITECTS, P.C.

Defendant
THE TOWN OF WEST SENECA, NEW

UNIFORM/JOINT
YORK'S MEMORANDUM
OF LAW IN OPPOSITION TO MOTIONS
TO DISMISS OF ALL DEFENDANTS AND
IN SUPPORT OF ITS MOTION TO AMEND THE COMPLAINT AGAINST
NUSSBAUMER & CLARK, INC.
DATED: September 27, 2018

Rochester, New York

Attorneys for The Town of West Seneca, New York
925 Clinton Square
Phone: (585) 473-3100
JDreste@ed-110.com
MHolmes cd-11u.com
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PRELIMINARY STATEMENT
Defendants'
The me6ons before this Court primarily require that CPLR secties 214(6)
and 214-d, both enacted in 1996, be har=rhed and applied. The Charles E. Burchfield Nature
("Town"
& Art Center ("Burchfield Center") owned by Town of West Seneca or "West Seneca")
is essentially settling and collapsing as a result of damages due to the design errors of one or
more of the named Defedsts. That the damages are due to negligently prepared landscape
supported.1
design is c0ñceded, and is otherwise The Dêfendâñts instead seek dismissal on
technical grounds that should not be allowed, especially at this initial stage of litigation.
The Town brought separate actions against each Defad ant based in part on CPLR 214-
d. Each D='=A=t has moved to dismiss, incorrectly alleging that the actions are timc-barred.
Separate affidavits are prcscnted in opposition to each motion, but to avoid unnecessary
duplication, this unified/joint Memorsdüm of Law is submitted in opposition to each motion.
Once these motions are determined, the separate actions may be cemolidated or atherwise
joined.
FACTUAL_BACKGROUND
The Town respectfully refers the Court to the affidavits of John Fenz, Esq. in rêsp0ñsc to
each motion to dismiss. Each affidavit of John Fenz, Esq., and their respective exhibits, as well
Defendants'
as the affidavits in support of each modens to dismiss are fully incorporated herein
by reference. The operative facts are generally undisputed.
The Town retained Nüssbaumer & Clark, Inc. ("NCI") to provide professional
eñgiñccring services for the design and construction of the Burchfield Center (sometimes
referred to as the "Project") (Fenz Aff. in Opposiden to NCI, 13). NCI rctaiñêd Louis Design
1 See Ex. 4 to Holmes Affidavit in epposition to Na«ha"- motion, and report of Building Science Services, LLC.
3
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Design"
Group (now Louis Design Solutions Architecture, LLC, or "Louis herein) and Kideney
"Kideney"
Architects, Laping Jaeger Associates, P.C (now Kideney Architects, P.C, or herein)
as sub--w·*=-+s on the Project (Id. at 15). Louis Design and Kideney both agree that they
served as sub-==*==u to NCI on the Project (Brian Louis Aff., ¶3; Raymond Bednarski Aff.,
16). During the course of the Project, Louis Design provided NCI with professional architectural
design services for the Project and Kideney provided NCI with profcssional landscape
architectural design services for the Project (Fenz Aff. in Opposition to NCI, 15).
The Town did not retain Louis Design or Kideney to provide professional design services
for the Burchfield Center (Id. at ¶6). Therefore, the Town had no contractual privity with either,
nor did the Town bear responaibility for the work performed by Louis Design and Kideney (Id.
at 129). NCI, as the firm rct±ii; both Louis Design and Kideney, does retain responsibility for
any negligent performance by those sub-consultants.
NCI, Louis Design, and Kideney were each involved with the design of the grade and
ground clevatian surresadi-g the Burchfield Center (see collectively Fenz Aff's in Opposition to
Motions to Dismiss). NCI, Louis Design, and Kideney were also each involved with providing
professicaâl design or consulting services with respect to the grade and ground elevation
surrounding the Burchfield Center (Id.).
In or about June 1999, the Town received design drawings, plans, and specificatiers for
the Bürchficid Center (Fenz Aff. in Opposition to NCI, Exhibit B; Fenz Aff. in Opposition to
Louis Design, Exhibit A). When NCI provided these drawings, plans, and specifications, the
Town understood that to mean that NCI took profcssional responsibility for the work on the
Project and represented that the work in the design deenments was accurate, in coñformance
with the applicable codes at the time of submission, and had been prepared in conformance with
normal and customary standards of practice and with a view to the safeguarding of life, health,
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property, and public welfare (Fenz Aff. in Opposition to NCI, ¶30). Construction of the
Burchfield Center began in or about July 1999 and on March 11, 2012, the Town certified that
the Burchfield Center was complete.
In January 2017, the Town first.noticed property damage to the Burchfield Center (Id. at
114). To investigate the extent of the damage, the Town retained the services of Building
Science Services, LLC (Id. at 115). Based on this investigâ‡ion, the Town discovered that the
problems facing the Burchfield Center were caused by an original design failure (Id. at ¶18, see
also Exhibit C). More specifically, the Town learned that the original design failure with the
setting of the grade and ground elevatisñ around the Burchfield Center caused the property
damagc (Id. at119-22). NCI, Louis Design, and Kideney have not disputed this fact. In fact,
architcct"
counsel for NCI confinned that the "landscape it hired on the Project (i.e. Kideney
and/or Louis Design) was resp0ñsible for the damage caused to the Burchfield Center (Holmes
Aff. in Opposition to NCI, Exhibit 4).
LEGAL STANDARD
When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard to be
applied is determining whether the picading states a cause of action, not whether the proponent of the
pleading has a cause of action (See Guggenheimar v. Ginzburg, 43 NY2d 268, 275 [1977]; Foley v.
D'Agostino, 21 A.D.2d 60, 64-65 [1964]). In considering such a motion, the Court must "'accept the
facts as alleged in the complaint as true, accord plaintiffs the benefit of every passible favorabic
theory.'"
inference, and determine only whether the facts as alleged fit within any cogñizable legal
v. City o/New 9 NY3d 84 NY2d 87-

Nonnon York, 825, 827 [2007] [quoting Leon v. Martinez, 83,
calculus."
88 [1994]). "Whether a plaintiff can ultimately establish its allegations is not part of the
(EBC 1, Inc. v. Goldman, Sachs & Co., 5 NY 3d 11, 19 [2005]).
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On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations
the moving 4-ª^=ª==÷ must prima "that the time in which to com-mence
grounds, establish, facie,
the action has eXpired ... The burden then shifts to the plaiñtiff to raise a question of fact as to
whether the statute of limitations is talled or otherwise inapplicable, or whether the plaintiff
period."
actually commenced the action within the applicable statute of liñ1itations (Coleman v.
Wells Fargo & Co., 125 A.D.3d 716, 716 [2d Dept 2015]).
On a motion to dismiss a complaint pursüâñt to CPLR 3211(h), a Court rcviewiñg the
sufficiency of a complaint must detcññinc whether the claim alleged is supported by such
relevant proof as a ressonsble mind may accept as adequate to support a conclusion or ultimate
fact (Castle Village Owners Corp. v. Greater New York Mutual Insurance Co., 868 NYS2d 189
[1st
Dep't 2008]).
Under any motion to dismiss pursüânt to CPLR 3211, "pleadings are to be liberally
construed ... The court is to accept the facts as alleged in the [pleading] as true ... [and] accord
infeence."
[the prepencñt of the pleading] the benefit of every possible favorable (Emman
[4*
Realtors, Inc. v. First Columbia Century-30, LLC, 152 AD3d 1215, 1216 Dep't 2017]).
As indicated in the Affidavits of John Fenz, Esq. and as set forth in more detail below,
Profcssionals'
the Court should deny the Design motions to dismiss and should grant the Town's
addi±4==='
cross-motion to amend its complaint to assert an cause of action for indenmification
against NCI.
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ARGUMENT
POINT I
DESIGN PROFESSIONALS NOT IN PRIVITY WITH THE TOWN

ARE SUBJECT TO CPLR §214-d FOR NEGLIGENTLY
PERFORMED SERVICES CAUSING DAMAGES
The deeme®tinn and affidavits submlited by all parties confirm that neither Kideney nor
Louis Design had coñhcts with the Town for professional design scrvices. The issue presented
§214(6).2
to the Court is how to harmonize the application of CPLR §214-d with CPLR
A. CPLR Section 214(6) Applies to Malpractice Actions Against Design Professicaâls in

Privity.
CPLR §214(6) provides for a three-year statute of limitaticüs for:
An action to recover damages for malpractice, other than reedical,

dental, or pediatric malpractice, regardless of whether the
underlying theory is based in contract or tort.
The Court of Appeals has repeatedly been called upon to rule on the meaning of CPLR
"malpractice"
§214(6), but has definitively instructed that the thrcshold issue of what means in the
statute is praised on the "given that malprecuee is pr ssional malfcasance toward one's
client...."
(See Chase Wientine Research, Inc. v. NIA Group, Inc., 96 NY2d 20, 24 [2001]; see
also Cubito v. Kreisberg, 69 AD2d 738, 742 [2d Dep't 1979], aff'd, 51 NY2d 900 [1980]
[malpractice in the statutory sense describes the negligence of a profcssional toward the person for
whom he rendered his service, while wrcñgful coñduct of the professional resulting in injury to a
party outside the client relationship is simple negligeñce]). Thus, the threshold predicate for the
application of the three-year statute of limitations under CPLR §214(6) is that the potential action
"malpractice"
be one for brought by the client with whom the design professional is in privity. It
is undisputed that neither Kideney or Louis Design were in privity with the Town.
2Both sections were enacted in 1996 legislation.

7
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Further, the statute of limitations applicable to the liability of a design professional for
injuries suffered by third parties due to negligcace runs from the date of the injury. Cubito, at 744.
As the present actions have been brought within three years of the property damages = 3
by
the Town, the present actions, especially as to Kideney or Louis Design, cannot be time-barred by
CPLR §214(6). Thus, the accrual cases cited by Kideney and/or Louis Design are inapplicable.
The Cubito court observed that it is for the Legislature to change such rules, and it did so
in 1996 when it added §214(6) to alter the rule as to non-madual malpractice claims as bctwcca
parties in privity. It cannot be coincidence that §214-d was enacted by the Legislaims at, or close
time.3
to the same
B. CPLR §214-d Permits the Present Actions to be Maintained by the Town.
CPLR §214-d (8) does provide that such section shall not be construed to alter or extend any
applicable statutes of limitation (except as expressly provided therein). The shortened time period
under CPLR §214(6) is inspplicable, at least as to Kideney and Louis Design as set forth above,
while per CPLR §214-d, claims are appropriately asserted for:
...pctscñal injury, wrongful death or property damage...against a

licensed architect, engineer, land surveyor or landscape
architect...based upon the professional perfe.-o, conduct or
omission by such licensed architect, engineer, land surveyor or
landscape architect, occurring more than ten years prior to the date
of such claim.
The present actions by the Town fall squarely within the ambit of CPLR §214-d. Gelwicks
v. Campbell, 257 AD2d 601 (2nd Dep't 1999), as cited by Kideney and Louis Design is
inapplicable. While the plaintiff there did attempt to utilize CPLR §214-d, the underlying facts
show that the claim was not for property damages, rather it was for costs associated with a
defectively constructed septic system that had been certified by the preLes=:1 as properly
3Per McKinney's, addedL.1996, c. 682, §1.

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constructed. Unlike the damages alleged by the Town, no property damages were asserted in
Gelwicks. Castle Village Owners Corp. v. Greater New York Mutual Insurance Co;ñpañy, 58
(1"
AD3d 178 Dep't 2008) also does not advance Kideney's arguments. In that case, the Court
dealt with, and denied, a motion by one conmking engineer against another engineer to dismiss a
third-party action. The Court was not presented with a motion to dismiss the action by the owner,
rather, it related to claims between design professionals akin to what may PM=='dy be brought
by Kideney against Louis Design for contribution, for example. The Court denied dismissal of the
cortuibuticñ claim brought by one design professional against another.
Louis Design's sepa'·ate arguments are likewise anavailing. State v. Lundin, 60 NY2d 987
(1983) is acknowledged by Louis Design to relate to an action for defective construction and
design, not to property :'a=ges such as are alleged by the Town. Regency Club at Wallkill, LLC
v. Appell Design Group, PA, 112 AD3d 603 (2d Dept 2013) relates (as do Kideney's cases), to a
"malpracticc"
true claim based on privity of conkaet with the offending design professional.
Neither counters the Town's ability to invoke CPLR §214-d to recover for property damages
suffered as a result of professional negligence by Kideney and Louis Design, neither of whom
were in privity with the Town.
Likewise, Louis Design's citation of Cubito, supra., is =3splaced. While Louis Design
confirms that it was a sub-consultant to NCI, it then seemingly asserts that it may consider itself
to have been in privity with the Town regardless to suit its position. As Louis Design
acknowiédges, the Cubito court "concisded that it would be unreasonable to apply the statute so
as to extinguish a claim against the defendant architect for his negligêñcc prior to the time that
the injury had been sustained or that an action could have been brought to recover damages for
the injury (Emphasis in original) (Louis Design MOL, p. 4). The Town's position is no different
and it would be unreasuñable to now extinguish the Town's rights to proccad against the design
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professieñels rcspoñsible for the property damages the Town only began to sustain within the last
three years.
The Town is at a loss to üñdcrstand how Kideney or Louis Design may, on the one hand
claisviledge that they had no contractual privity with the Town and then on the other, make a
jump in logic to seek dismissal premised on misplaced assertions that this matter involves "purely
contract."
eceñemic loss arising from a claimed breach of (Kideney MOL p. 4). In Kideney's
case, the agreement it entered with NCI (not the Town) expressly prohibits the Town from
asserting any contractual rights or benefits under that Kideney/NCI agreement (See Kideney Ex.
D, §6.7.3). The Court of Appeals has confirmed that the Town would not have been able to assert
rights under that Kideney/NCI contract under any third-party bcñcficiary theory (See Dormitory
Authority v. Samson Construction Co., 30 NY3d 704 [2018]).
The efforts of both Kideney and Louis Design to urge the Court to find that they were both
"malpractice"
essentially in privity with the Town in order to fall under the timing protections of
CPLR §214(6) cannot prevail. The frailty of that position is made apparcñt simply by obscrying
that they would both =2=±tadly vehemently oppose any action by the Town against either based
brought.4
on privity-based male actice, had such been Hart v. Moray Homes Limited, 158 AD2d
890 (3d Dept 1990) does not help Louis Design either. That case did not involve claims against a
design preféssieral, nor the app&dòñ of CPLR §214-d. This case is of no utility to the issues
presented.
New York City Sch. Constr. Auth. V Adam's Eur. Contr. Inc., 55 Misc3d 1223(A)(Sup Ct.
Bronx Co., 2017) is likewise inappliesble. Louis Design again incorrectly asserts that the Town
4 While it is possible to maintain actions for negligent:ni-representation for purely --4 losses against design
prefeedonale absent privity, see Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson, 73 NY2d 417
(1989), that is inapplicable here in any event in light of the fact that the Town is pursuing non-ecenemie losses in
the form of property damages.
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is not seeking injury to property, which is clearly incorrect. Witt v. Merrill, 19 AD3d 1998
Dept 2005) also does not help Louis Design for the simple fact that it iñvalved a malpractice claim
by a property owner in contractual privity with the defcñdâñt design professional. CPLR §214-d
was not at issue. Because the Town is not seeking pure economic loss and is, indeed, seeking
damages for property damages falling within the unambigüüüa ambit of CPLR §214-d, the other
cases cited by Kideney or Louis Design are likewise inapposite.
(18t
Structure Tone, Inc. v. Universal Services Group, Ltd., 929 NYS2d 242 Dept 2011),
also cited by Kideney and Louis Design, does not advañcc any basis to dismiss. First, their wholly
unsupported jump in logic analogizing CPLR §214-d to CPLR §1401 is apparcñtly the foundation
for citing Structure Tone. However, Structure Tone does not remotely discuss CPLR §214-d, and
"contribution"
the Town is not seeking CPLR §1401 from any of the named defendants Design
Profesiesâld Contrary to Kideney's and Louis Design's assertions, the Town is indeed seeking
non-eceñomic loss, not arising from any contractual relationship with at least Kideney and Louis
Design, for property damage to a building that has s=+ened substantial water and associated
damages and is now in danger of collapse.
Cases cited by NCI are also distinguishablm City School District of City of Newburgh v.
Hugh Stubbins & Associates, Inc., 85 NY2d 535 (1995), apart from being pre-enactment of §214-
d, pertain to an action by an owner against contmeton and design professionals with whom it was
in ccñtractüã1 privity. Subsequent to that decision, the Legislature enacted both §214(6) and §214-
"mapractice"
d creating a distinction between claims for between parties in privity, and claims for
negligêñce between parties not in privity. Thus, while NCI's position as to itself may have merit,
the caselaw cited does not help Louis Design or Kideney.
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All other cases cited by NCI at page 3 of its Memarandum of Law, are simply variants of
the same principle relating to malpractice claims arising from contractual relationships, not from
actions for property daniagcs against design professionals not in privity with the Owner.
In Belunes v. Minkoff Grant Realty & Management Corp., 278 AD2d 143 (1st Dep't
2000), the Court reversed the dismissal of an action against a design professional, discussing CPLR
§214-d. There, the court held that because ten years had not elapsed from the date of injury, §214-
d did not apply, thus reversing a prior disiñlseal of the complaint based on arganicnt:; that the
plaintiff had not adhered to the §214-d conditions precedent. The Belunes Court confirmed that a
personal injury action against the design professional by a party who did not retain the architect
accrues on the date of injury, and that under the facts presented, ten years had not elapsed, thus
making §214-d inapplicable. Howcver, in the context of the clear provisions of §214-d, which
extend to property damage claims as well as personal injury claims, the same doctrine must apply
and the accrual of a property dañiage action against a design professional by a party not in privity
will accrue on the date of injury. Here, the damages sustained by the Town, and the associated
cause of action, accrued no earlier than January 2017,
"counterintuitive"
NCI contends that it is to presume a ten-year statute or other extended
liinitation is created by §214-d, although the court inBelunes, cited by NCI, so provides. What is
counterintuitive is that the Legislature would concurrently enact CPLR §214(6) and §214(d), but,
according to Defendants, intend that the latter would essentially have no effect in instances of
property damage claims, despite clear statutory authority to the contrary.
At core, the position of the design professionals, and especially those of Kideney and Louis
Design, is that CPLR §214-d may never be utilized by a property owner. The Legislature has not
so provided, nor have the courts. While a cogent argument can be made that CPLR §214(6) applies
to malpractice claims between parties in contractual privity, that shortened time period cannot
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apply where privity is absent and the claim is brought by a third-party, such as the Town. The
plain terms of §214-d providc that the Town may seek the property damages it began to incur
within the last three years, at least against Kideney and Louis Design. Any suggesticñ that the
Town was in a pacition years ago to make claims for property damages that had not yet accu11ed
is unavailing.
C. West Seneca's Claims Against Louis Design and Kideney are for Malpractice AND
Negligence.
Louis Design's assertion that West Seneca's claims are solely based on malpractice and
thus subject to dismissal is meritless because the Complaint asserts a cause of action for
malprac±e and ñêgligence (Holmes Aff. in Opposition to Louis Design, Exhibit 2). Malpractice
and negligence are two entirely different causes of action. Louis Design is correct in noting that
inalpractice, "in its strict sense, means the negligence of a member of a profession in his relations
patient"
with his client or and that negligêñce would result from "the wrongful conduct of the
professional in reñdering services to his client resulting in injury to a party outside the
relatioship."
(Louis Design Memorandum of Law at P.3, 4). In this case, Louis Design's own
admissions contend that it was a sub-cossltant to NCI (Brian Louis Aff., 13). Being a sub-
consultant to NCI, Louis Design was not in privity with the Town. As alleged in the complent,
Louis Design's negligent actions in rendering services to NCI resulicd in property damage to the
Burchfield Center (Holmes Aff. in Opposition to Louis Design,Erhihit 2). Therefore, the Court
should disregard Louis Design's silegahm To the extent the Complaint makes
completely
reference to malpractice, such may be viewed as mere surplusage in the face of the admined
alternate reference to professional negligcace.
The mones to dismiss based on the statute of limitanom must be denied.
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POINT II
WEST SENECA HAS MET THE HEIGHTENED THRESHOLD CONTAINED IN

CPLR §3211(h)
The review of conditions prepared by Building Science Services, LLC (the "Report") and
the allegations made by NCI against Kideney and/or Louis Design clearly dcmêñstrate that West
Seneca has satisfied its burden under CPLR §3211(h), because there is a substantial basis to
Profes:sinnals'
believe that each of the Design negligent acts and omissions were a proximate
cause of the property damage that occurred and coñtiñücs to occur at the Burchfield Center.
In order to meet the burden under CPLR §3211(h), the Town must provide "such relevant
fact."
proof as a ressunable mind may accept as adcquatc to support a conclusion or ultimate
(Castle Village Owners Corp., supra at 183). This stsñdard is intcñded to be less than a
standard."
"preponderance of the evidence (See 300 Gramatan Avenue Associates v. State
Division of Human Rights, 45 NY2d 176 [1978]).
With respect to NCI and Louis Design, the =!nera ==±Aed in the Report
demonstate the substâütial basis to believe that NCI's and Louis Design's negligent acts and/or
omissions caused the property damage to the Durchñcid Center (Fenz Aff. in Opposition to NCI,
Exhibit C). The Report also specifically notes that Building Science Services, LLC reviewed
drawings and specifeations prepared by NCI and Louis Design and d±minad, among other
things, that such documents relating to the ground elevations and grade surmanding the
Burchfield Center were confusing, improperly designed, and poorly coordinated (Id.).
With respect to Kideney, the conchminns contained in the Report regarding the ground
elevaticñs and grade surróüñding the Burchfield Center, along with the asserticas made by NCI
design"
that Kideney "used an improper elevation in its and did not pwporly follow NCPs plans
or properly inspect the structure prior to building up soil beds deseñstratc the substâñtiâI basis
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to believe that Kideney's negligent acts and/or emissions caused property damage to the
Burchfield Center (Holmes AfE in Opposition to Kideney, Exhibit 3).
No party has disputed the findings and ennchminns of the Report. No party has disputed
that the wood walls of the Burchfield Center have been exposed to years of moisture which
caused the property damage. Therefore, West Seneca has provided enough relevant proof for a
reasonable mind to accept as adequatc to support the = that the Design Professionals
design of the Burchfield Center caused the property damage. As such, the Court should deny the
Professionals'
Design motions to dismiss.
POINT III
WEST SENECA SHOULD BE ALLOWED TO AMEND ITS COMPLAINT

AGAINST NCI TO ASSERT AN ADDITIONAL ACTION FOR
INDEMNIFICATION
By its cross motion, West Seneca seeks leave of Court to amend its Complaint pursuant
to CPLR §3025(b) to assert a cause of action for indcmr·‰ation against NCI. As set forth in
more detail below, the Court should grant West Seneca's motion because the indemnification
cause of action closely relates to the original action commenced against NCI and therefore, NCI
cannot be prejudiced or surprised by the amendmant
The Town's proposed indemnification cause of action is also meritorious because NCI
certified to the Town that it took professiond resper. for the design work on the Project
ibility
and togomonted that the work in the design dccumcñts was âcesste, onnfn-d to code, and had
been prepared in conformañce with industry standards. Additiondly, the Town had no
responsibility for the negligent acts of NCI's sub-consultants. Furthermore, the cemen law
dictates that the Town should be entitled to indeñutification from NCI'== the Town, having
no fault on its own in causing the property damage to the Burchficid Center, will have to pay for
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NCI's negligcace, as well as for the negligence of its sub-consultants for their work on the
Project.
A. NCI cannot be Prejudiced or Surprised by the Proposed A:nended Cerp!rin±_
As this Court knows, requests for leave to amend a pleading are subject to a liberal
standard and should be freely granted in the abseñee of prejudice or surprise resulting from
delay, except in situations where the proposed amendmat is wholly devoid of merit (NY CPLR
[4*
3025[b]; Carro .v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276, 1277 Dep't 2008]). In
this case, the Proposed Amended Complaiñt attached to the Holmes Affidavit (Exhibit 3) in
opposition to NCI's Motion to Dismiss and in support of the Town's Cross Motion to Amend
does not prejudice or surprise NCI.
Prejudice requires that the opposing party have "been hindered in the preparation of his
position"
[or her] case or has been prcycñted from taking some measure in support of his [or her]
(Pansini Stone Setting, Inc v. Crow and Sutton Assocs, Inc, 46 AD3d 784, 786 [2d Dept 2007]
[quoting Loomis v. Civetta Corrino Const Corp, 54 NY2d 18 [1981]). There is no prejudice
when the proposed arñéñdmêñt is based on the same factual allegations contained in the
[4*
complaint (Meyer v. University Neurologj, 133 AD3d 1307 Dep't 2015]),
Here, NCI is not prejudiced or surprised by the Proposed Amended Complaint because
the indcmñification claim is based on the same factual allegations contained in the compisiñt,
mainly, the design, ccñstruction, and property damage to the Burchfield Center.
B. West Seneca's Proposed Amended Cemp!rint Asserting a Cause of Action for

Inde=Wñcatiun Against NCI is Meritorious.
The proposed cause of action against NCI for iñdemñification is meritorious because it is
based on NCI's duties under the New York State Education Law and because it is based on
generally accepted principles of cemmoñ-law indemnhtion. Indemnification is "[t]he right of
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another"
one party to shift the entire loss to and "may be based upon an eXpress contract or an
obligation"
implied (Bellevue S. Assoc. v. HRH Constr, Corp., 78 NY2d 282 [1991]). Ede--nity
may be appropriate because of a separate duty owed to the iñdemñitee by the iñdcñmiter, or
because one of the two parties is considered actively ñcgligeñt or the primary or principal
wrcñgdoer 78 NY2d at 296 [citing Mas v. Two Bridges 75 NY2d 689-

(Bellevue, Assocs., 680,
690 [1991)). A party can also obtain ind==‰ation based on statute (750 Old County Road
[4th
Realty Corp. v. Exxon Corp. 229 AD2d 1034 pep,t 1996] [citing 145 Kisco Ave. Corp. v.
[2"d
Dufner Enters., 198 AD2d 482 Dep't 1993] [holding that a claim for indemnification for
past and future cicañup costs based on statute imposing strict liability for cleanup and removal
costs in ecññêction with discharges of petroleum was properly stated]).
Here NCI, pursuant to Article 145 of the New York State Education Law, Section 7209,
signed, sealed, and delivered design documeñts to the Town that were used in the overall
construction of the Burchfield Center (Fenz Aff. in Opposition to NCI, ¶l l). It is com-monly
known that the purpose of a seal and signature of an engineer on a document indicates that the
cñgisccr takes professicñal responsibility for the work and to the best of its kñcwledge and
ability, represents that the work in the document is accurate, in confe. . w with applicable
codes at the time of submission, and has been prepared in ccñformañce with normal and
customary standards of practice. In fact, guidelines issued by New York State Education
Depaitmeñt Office of the Professions supports this interpretation of the meaning of the seal
(Holmes Aff. in Opposition to NCI, Exhibit 5).
When NCI signed, sealed, and delivered the design documents to the Town, it undertook
the same professioni responsibHity for the work and the work in the documeñts. Therefore,
NCI owed a duty to the Town to be respoñsible for the work on the Project, the work contaiñêd
in the design documents, and its sub-consultants Louis Design and Kideney.
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NCI is also liable to the Town for common-law indemnihation because the Town,
through no-fault of its own, is in a sinistioñ where it will be required to pay for the property
damage to the Burchfield Center that was caused by the negligence of NCI and its sub-
coñsultsts Louis Design and Kideney. NCI has admitted that the cause of damages is due to
design errors (Holmes Aff. in Opposition to NCI, Exhibit 4). The Town had no respeñsibility
for the design (Fenz Aff. in Opposition to NCI, 14, 28, and 29). A party seeking common law
indcñmification must have delegated exclusive respeñ-ibility for the duties giving rise to the loss
to the party from whom indemnification is sought and must not have committed actual
wrongdoing itself (Tiffany at Westbury Ccñdcmizi::: by Its Bd. of Mgrs. v.. Marelli Dev. Corp.,
40 AD3d 1073, 1077 [2d Dept.2007] [quoting 17 Vista Fee Assoc. v. Teachers Ins. & Annuity
Assn. of Am,, 259 A.D.2d 75, 80, 693 N.Y.S.2d 554 [1st Dept.1999] [remaiñing internal citations
omitted]).
10th
For example, in Board of Managers of 125 North Condotritraum v. 125 North10,
LLC, the Court held that the sponsors of a condcn±±n construction project sufficiently alleged
a cause of action against the general contractor for commoñ-law indamnification because the
sponsors alleged that the exclusive responsibility for design and construction of the
condominium was acicgated to the contractor and that sponsors were not responsible for any
wrongdoing (51 Misc3d 585 [Supreme Court, Kings County, January 26, 2016]).
This case presents exactly the same situation that existed in Board of Managers of 125
North. West Seneca had no responsibility for the design and constructi0ñ of the Burchfield
Center (Fenz Aff. in Opposition to NCI, 128). West Seneca had no responsibility for the work of
Louis Design and Kideney (Id. at 129). West Seneca also did nothing to contribute to the
property darsage sustained by the Burchfield Center, and no party has made any allegation to the
contrary (Id. at 15).
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Any time-related arguments of NCI are unavailing, based on the well-recognized
principle that a cause of action for indemmity may not even accrue until the damages are
[4th
an±ir.ed (Orlikowski v. Cornerstone Community Federal Credit Union, 55 AD3d 1245
[4th
Dep't 2008]; Conley v. Salt City Energy Venture, L.P., 234 AD2d 909 99
Ridge Air Rights, Inc. v. State, 44 NY2d 49 [1978]). Thus, the Town's right to inderññity from
NCI accrued, at the earliest (if it yet has at all) in January, 2017.
Therefore, West Seneca should be peññitted to amend its compleñt against NCI to assert
a claim for iñdemnification pursuant to Article 145 of the New York State Education Law,
Section 7209 and common-law.
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CONCLUSION
Based on the f0regaing, The Town of West Seneca, New York respectfully requests that
Defcñdañts'
the Court deny the Design Professional motions to dismiss and grant its motion to
amend the Complaint pursuant to CPLR §3025(b).
DATED: September 27, 2018

Rochester, New York
ERNSTROM & DRE E, LLP
John V . dreste, Esq.

Attorneys for The Town of West Seneca, New York
925 Clinton Square
Phone: (585) 473-3100
JDreste@ed-llp.com
MHolmes@ed-1lp.com
i Dole v. Dow for personal

Chemical, 30 NY2d 143 (1972) is irrelevant as well. That case, involving cûñtributicñ
injuries,wasthe precursor to the CPLR contribution rules.
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REPLY MEMORANDUM OF LAW, DATED NOVEMBER 9, 2018

DETERMINING PRESERVATION ONLY][149-163]
(FILED ; ERIÊ COUNTY CLERK 11/0 9 / 2 018 0 2 : 03 P INDEX NO. 815187/2017

NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 11/09/20L8
STATE OF NEW YORK

Plaintiff
vs. REPLY MEMORANDUM OF
LAW
Index No. 815187/2017

Defendant
COUNTER STATEMENT OF FACTS
In Plaintiff's response to Defendet's motion to dismiss, Plaintiff icpeatedly asserts that
it is deleing "property damages". However, although it is underste=deble while Plaintiff wants
to use that phrasing, the fact of the matter is that they.are seeking damages for remediation and
rep.air of a building that they allege is necessary due to the segligence in the professional design
work performed by Defendant. The Summons and Camplaint states as follows:
lawsuit relates to the design and coristruction of a building

"This
and surrounding park in the Town of West Seneca, New York,
commonly known as the Charles E. Birchfield Nature and Art
Center . . . and latent defects that were directly and proximately
caused by Louis Design's negligence in performing its professional
services"
architectural (Plaintiff's Surnmons and Complaint,
Paragraph 4).
Plaintiff's Complaint goes on to state:

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"West Seneca, through Building Science Services, LLC,

investigated the cause of the property damage to the Birchfield
Center and determined that the Birchfield Center's latent defects
were caused by an improper design of the Birchfield Center".
(Plaintiff's Summons and Complaint, Paragraph 18).
Further;
"As presently ascertained, West Seneca determined, among other

things, that the original design ofthe Birchfield Center contained
improper and poorly coordinated specifications as to where the
ground elevations to be, and such improperly
were intended
designed specifications lead to wood wall framing sitting
approximately 6-7 inches below the Birchfield Center's floors
lap
elevation, 2-3 inches below the surrounding earth grade, and 8-9
below grade at door entry and walkway perimeter areas".
(Plaintiff's Summons and Complaint, Paragraph 19).
Finally:
"As presently ascertained, this improper design caused exterior

wood wall surfaces to be exposed to continuous and extended
conditions of moisture exposure and led to the damage that the
experienced."
Birchfield Center (Plaintiff's Summons and
Complaint, Paragraph 20).
damage"
Therefore, although Plaintiffs repeatedly use the term "property
in a huphazard attempt to pigeontole this case into those envisioned by CPLR
§214-d, it is blatantly obvious that Plaintiff's claim is simply that the building was
improperly designed and therefore repairs and remediations need to be done to the
structure because of the alleged professional malpractice by LOUIS DESIGN.
"non-economic"
Plaintiffs further appear to allege that they are claiming
loss. Again, a review of the Suramoñs and Complaint does not mention a single
word about non-economic loss. The only remedy sought by the Plaintiff, and that
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could be sought by the Plaintiff in this case, is the cost of repair of the structure.
This is, by definition, "economic loss". Plaintiff's statement that they are seeking
non-economic loss has absolutely no basis and is patently wrong.
Finally, Plaintiff alleges that this claim is not one for professicñal
malpractice and thereby subject to the three year statute of limitations set out in
CPLR 214(6) because they claim WEST SENECA was not in privity with
LOUIS DESIGN. Again, returning to the Summons and Complaint filed in this
case, Plaintiff alleged as follows:
6. On or about January 20, 1998, Nussbaumer & Clarke, Inc.
("NCI") issued a proposal to West Seneca for professional

engineering services at the Birchfield Center. Attached hereto as
Exhibit A is a copy of the January 20, 1998 proposal.
7. The January 20, 1998 proposal indicates that Louis Design

would work as a sub consultant to NCI on the project.
8. Upon information and belief, and/or about November 1998,

NCI and Louis Design prepared a first set of construction
drawings, including a site plan that West Seneca intended to rely
on and use in the construction of the Birchfield Center.
9. In or about M.ay 25, 1999, NCI informed West Seneca of a

supplemental proposal to change the structure of the Birchfield
Center building from modular construction to a custom build,
indicated that Louis Design would proceed with architectural work
on the Birchfield Center, indicated that NCI would provide
structural plans, elevations, sections, and details of the foundation
and framing for the Birchfield Center, and stated that twenty-five
sets of plans and specifications will be provided to West Seneca to
use for bidding the construction of the Birchfield Center. A copy
of NCI's May 25, 1999 supplemental proposal is attached hereto as
Exhibit B.
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10. Thereafter, upon information and belief, Louis Design

proceeded to design the Birchfield Center in accordañce with the
West Seneca's goals, objectives, and expectations and
otherwise for the benefit of West Seneca.
12. WestSeneca relied on the advice, recommendations, and

drawings of Louis Design before bidding out the construction of
the.Birchfield Center.
25. Upon information and belief, Louis Design was retained by

NCI to help design the Birchfield Center for the benefit of West
Seneca and to provide all those professional architectural services
necessary to construct and complete the Birchfield Center.
27. Louis Design knew that its professional design services

were for the benefit of the Plaintiff.
28. Louis Design knew that its professional skills, its

development of the Birchfield Center, and its final design
dacaracats including drawings, plans, and recomtnendations,
would be used and relied upon by the PIsiatiff for the
construction of the Birchfield Center.
30.
In providing its professional design services in connection
with the construction ofthe Birchfield Center, Louis Design owed
the Plaintiff a duty to use that degree of skill and learning normally
possessed and used by a professional architect in good standing in
a similar practice and under like circumstances.
(Emphasis added)
Therefore, relying on the Plaintiff's Sutnmenoand Complaint, it is clear
based on the case law cited below, that the WEST SENECA was in privity with
LOUIS DESIGN and therefore CPLR §214(6) applies to this action and the
claim is thereby time barred.
Furthermore, even if one were to accept Plaintiff's argnment raised for
the first time in the responding Affirmation, that WEST SENEC is not in
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privity with LOUIS DESIGN, then this claim is barred in its entirety under the
economic loss doctrihs which bars recovery in tort for purely economic losses
caused by a Defendant's negligence. Once again, Plaintiff herein is not claiming
non-economic loss, but purely =nomic loss, that is, the cost of repair to the
Birchfield Center because of flaws which Plaintiff claims were as the result of
negligent architectral design. So even if this Court finds that WEST SENECA
and LOUIS DESIGN are not in privity the Complaint must be dismissed in any
event as the claim is barred by the economic loss doctrine.
The Court should note that Plaintiffs do not cite a single case in their
entire brief wherein the type of claim as asserted in this case was permitted by any
Court under CPLR §214-d.
ARGUME_NJ
L PLAINTIFF'S CLAIM, MADE FOR THE FIRST TIME IN THE

RESPONDING BRIEF, THAT WEST SENECA AND LOUIS
DESIGN ARE NOT IN PRIVITV, IS INCORRECT
Plaintiff's only argument in opposition to Defendant's motion to dismiss is
privity"
that WEST SENECA was not "in with LOUIS DESIGN because it did
not have a direct contract with it. However, it is elear that WEST SENECA and
LOUIS DESIGN are in the functional equivalent of privity, or, that WEST
SENECA is a third-party beneficiary of the agreement between Nussbaumer &
Olarke arid LOUIS DESIGN. It was noted in the initial proposal that LOUIS
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DESIGN would work as a sabee sultant to the project. Nussbaumer & Clarke
and LOUIS.DESIGN prepared construction drawings which, as it admits, WEST
SENECA iñtendcd to rely on and use in the construction of the Birchfield Center.
Then a supplencñ‡al proposal was submitted indicating that LOUIS DESIGN
would proceed with the architectural work on the Birchfield Center. As noted in
the Summons and Complaint, LOUIS DESIGN designed the Birchfield Center in
accordance with WEST SENECA's goals, objectly6s, and expectations and
otherwise for the benefit of WEST SENECA. As alleged by WEST SENECA,
LOUIS DESIGN knew that its professional design services were for the benefit
of the Plaintiff.
In Credit All. Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 541,
493 N.Y.S,2d 435, 436, 483 N.E.2d 110, 111 (1985) the Court of Appeals
answered the questicil of if an accountant may be held liable, absent privity of
contract, to a party who relies to his detriment upon a negligently prepared
financial report. The analysis used was that certain prerequisites must be
satisfied; (1) the gecountants must have been aware that the financial reports were
to be used for a particular purpose or purposes; (2) in the furtherance of which a
known party or parties was intended to rely; and (3) there must have been some
conduct on the part of the accountants linking them to that party or parties, which
acecüñtañts' parties'
evinces the underranans of that party or reliance, The Court
found that these criteria pennitted some flexibility in the application of the
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accountants'
doctrine of privity to liability. Credit AIL Corp. v. Arthur
Andersen & Co., 65 NJ.2d .@ 551.
In Parrott v. Coopers & Lvbrand. LLP, 95 N.Y. 2d 479, 741 N.E. 2d
506, 718 NY.S. 2d 70.9 (2000) the Court of Appeals hn cani this analysis to
dctóññinc if the parties had a rehtionship so close as to approach that of privity in
a cause of action for negligent misrepresentation. Again, the three prongs are (1)
an awareness by the maker of the statement that it is to be used for a particular
purpose; (2) reliance by a known party on the statement in furtherance of that
purpose; and (3) some conduct by the maker of the statemet making it to the
relying party and evincing its üñdersseding of that reliance. Parrott v. Coopers
& Lybrand, L.LP., 95 N.Y.2d @ 484, citing PriideñGal Ins. Co v. Dewev
Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 384, 590 N.Y.S.2d 831,
605 N.E.2d 318 (1992), citing Credit Alliance Corp., supra, 65 NV2d at 551.
Therefore, under the three-prong analysis as set out by the Court of
Appeals in Ciredit Alliance.Corp. and Parrott, supra, there clearly is privity
between WEST SENECA and LOUIS DESIGN and clearly this action is one for
professional malpractice, whether or not it is considered a claim in contract or in
tort and not a claim by a separate and non-related third party for "property
damage"
In Táñibrañds. Inc. v. Lockwood Green Engi;;cers.Inc., 576 N.Y.S. 2d
883, 178 A.D. 2d 406 (2nd Dept., 1991), Plaintiff's Complaint asserted causes of
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action sounding in breach of contract and professional malpractice against each of
the Defeñdañts. In that case, the architect chimed that in the absence of
contractual privity, the Plaintiff could not mentain a professional malpractice
claim against it. Hüwevct, the Court found that it was well settled that such a
claim may be asserted absent privity of contract where relationship of the parties
is so close as to approach that of privity. Evidence on the record shewed that
there were factual issues regarding the architect's understanding that the Plaintiff
was relying on his report for the purpose of determining whether asbestos was
present in the fireproofing material at the subject premises. Tambrañds, Inc.,
576 N.Y.Sad @ 885. The Court also.noted that a malpractice claim is governed
by the three-year period set forth in CPLR §214(6) and that Pleistiff's attempt to
invoke the extension provided in CPLR §214-c was to no avail as the malpractice
clairn was NOT one to recovery for personal injury or injury to property caused
by the latent effects of exposure to asbestos. CPLR §214-c is analogous to §214-
d and in that case, the Second Department rejected Plaintiff's attempt to use that
section to broaden the statute of limitations for prdfessional malpractice.
Tambrands, Inc., 576 N.Y.S.2d @ 885.
IL SINCE THERE IS PRIVITY BETWEEN WEST SENECA AND

LOUIS DESIGN, THE THREE-YEAR LIMITATION OF CPLR.
§214(6) CONTROLS
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In IFD Constr. Corp. v. Corddry Carpenter Dietz & Zack, 253 A.D.2d 89, 685
N.Y.S.2d 670 (App. Div. 1999), Plaintiff was the labor and materials contractor under a contract
with the City of New York for the construction of a bus facility. Defendants were the
cñgiñccring firms that the City retained to prepare the contract drawings and plans. In its
complaint, Plaintiff alleged that its work was delayed and additieñal work necessitated because
the contract documents prepared by the eñgiñcêrs were deficient. Although the enginc‡rs
contracted with the City only, Plaintiff alleged that they were aware that Plaintiff would rdy on
their contract drawings and specifications in preparing a bid for the construction project. Thus,
Plaintiff argued, the defcñdant engineers had a duty to it that required them to prepare the bid
docusicñts in confonnity with a professional standard of care. IFD Constr. Corp., 253 A.D.2d
@ 90-9L
The Court held that an owner's claim against a construction contractor for defective
workmanship accrues upon cenplêticñ of the construction. An owner's claim against an architect
or engineer accrues when the professional r46nnahip ends, usually upon issuance of the final
payrñêñt certificate under the contract, In a =g'lgence action based upon reliance on a design
professional's allegedly defective work product, such as contract documents upon which a
contractor's bid decisions are based, the cause of action cannot accrue until the date that the
work prüduct is recéivêd, since that is the earliest date on which the injured party, who did not
retain the professional, could have relied upon it. The gravamen of the wrong compkined of was
that Plaintiff calculated its bid price on the basis of documents and specifications prepared by the
defendant cñginscrs, who negligently misrepresented the soil conditions at the project site. Thus,
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Plaintiff was injured when the forces alleged to have produced that injury were put in
motion, that is, at least by the time Plaintiff agreed to its formulated bid price by entering into a
construction contract with the City, more than three years before the comm Ancement of the
engineers'
action. Having allegedly relied on the negligent misrepresentations in the contract
documents in foreiletiñg its bid, Plaintiff was, for purposes of the Statute of Limitations, injured
at that time. In that regard, the aggrieved party need not be aware of the wrong or injury for
the cause of action to accrue. IFD Constr. Cora, 253 AA2d @ 92-93.
Therefore, even though the Plaintiff and engineers in that case were not in cúñtractúal
privity, and it was a negligence cause of action based on allegedly faulty design documents and
plans, the three-year statute of limitation in CPLE 214(6) applied, and the action was time-barred
because the doctments relied upon were received more than three years prior to the
comraêñcement of the action. The fact that the Plaintiff did not know about the wrong or injury
did not stop the action from accruing.
IIL IF PLAINTIFF CLAIMS IT IS NOT IN PRIVITY WITH. LOUIS

DESIGN, THE COMPLAINT MUST BE DISMISSED UNDER THE
ECONOMIC LOSS DOCTRINE
If this Court agrees with Plaintiff's clairn that it is not in privity with
LOUIS DESIGN, then Plaintiff's claim is necessarily barred by the econo1nic
loss doctrine. Plaintiff in its Complaint claims only co ñorsic loss. In Key Int'I
Mfg. v. Morse/Diesel, 142 A.D.2d 448, 536 NJ.S.2d 792 (App. Div. 1988) the
Second Departraent held: "[t]he owner of a constractles project may not recover
compensanon for econornic damages caused by the negligence of an architect or
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engiñccr with whom it is not in privity of contract. This rule is analogous to the
well-settled rule that the manufacturer of a product may not be held liable to a
party with whom it is not in privity for.ecenemic losses suffered as a result of a
product."
defect in the Key Int'I Mfg., 142 A.D.2d @ 450. The Court continued:
"[t]he rule which eliminates tort liability for neonomic losses in the context of
defective products has been applied in New York to defective buildings as well.
This is logical since there is no visible reason for any distinction between the
structure."
liability of one who supplies a chattel and one who erects a Key Int'I
MA, 142 A.D.2d @ 452. Therefore, an owner of a building has no cause of
action for economic injuries against a finn of cñgiñeers with whom it was not in
privity. The Court noted that the rule which bars recovery for economic losses in
the absence of privity as applied to actions against architects or engineers is
settled as ainatter of New York Law. Key Int'1 Mfg., 142 A.D,2d @ 452.
In Lake Placid Club Attached Lodges v Elizabeth Town Builders, 131
A.D. 2d 159, 521 N.Y.S.2d 165 (App. Div. 1987) the Appellate Division Third
Department held that Plaintiff, an unincorporated joint venture which consisted of
the owners of condominium units, had no negligence cause of action for
ecóñomic losses against either the builder of the condominiùm or its architects.
The gravamen of Plaintiff's claim related to a gradual deterioration of parts of the
structure primarily due to leakage and seepage damage from the elements. The
Court stated that since the Plaintiff had not claimed any damages other than direct
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and consequential non-accidental ecêñomic loss, i.e., the cost of repair to make
the c®±i:= units of habitable quality and loss of market value there
was no recovery in segligence. Lake Placid Club Attached LoJgçå, 131
A.D.2d @ 162. The Court also held that the Plaintiff had no remedy in contract
since there was no privity between it or its members and either the builder or the
architect.
In Stapleton va Paviliont:!!£ña Insulation Systems. 217 U.S. Dist. LEXIS 14097;
2017 W.L. 431801 (W.D.N.Y., Jaññary 31, 2017), Plaintiff, a scrap metal recycling business,
retained the Defendañt Pavilion to design, manufacture and erect a pennanent lightweight
building to cover scrap metal and reduce pollutant runoff at its facility in Frewsburg, New York.
Defendant Uzman, a professional engineer licensed in New York State, was retained by Pavilion
as the engineer of record and was responsible for reviewmg wwuowmg drawings. Pavilion also
retained Barrett, another New York State licensed professional cñgiñear, to review the
engineeriñg drawings. Ultimately, the Plaintiff company sought damages alleging that the
structure exhibited significant structural flaws and was under-designed for the substantial wind
gusts and heavy snowfalls common in Frewsburg, New York. The company notified Pavilion of
cracking in the stracture and tears in the fabric covering but Pavilion failed to correct the defects.
Ultimately the company sued, alleging the structure was inadequately designed seeking more
than $300,000.00 in dainages which included the purchase price of the structure and the price of
removal. The Defendant architects moved to dismiss the professicñal negligence claims arguing
that the claims were barred by the economic loss doctrine because the parties were not in privity.
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The Court noted that New York's economic loss doctrine generally bars recovery in tott for
purely economic losses caused by a d6kedant's negligence In determining whether the
economic loss doctrine applied, the Court noted:
"Critical to a determination of whether a tort claim is barred by the

economic loss doctrine is whether damages are sought for the
failure of the product to perfortn its intended p.urpose, in which
case recovery is barred by the economic loss doctrine, or for direct
and consequential damages caused by a defective and unsafe
product."
Praxair. inc. v. General lims hii Co., 611 F, Supp.
2d 318, 326 (W.D.N.Y. 2009) (citing Hodgson. Russ. Andrews,
300 A.D.2d at 1052--53, 752 NY.S.2d at 769). Thus, for example,
| if the structure at issue had fallen and injured a worker or caused

damage to one of Keywell's
vehicles, then recovery might be
appropriate. However, hecause Plaintiff seeks only damages to
the structure itself arising from the alleged faulty design and
construction, the economic loss doctrine bars recovery under the
theory of professiona1negligence. Stapleton v. Pavilion Bldg.

InstallationSys., No. 09-CV-9348, 2017 U.S.Dist. LEXIS
14097, at *12-13 (W.D.NJ. Jan. 31, 2017) (Emphasis added).
Thercfere, as clearly explained by Justice Skretny, a claim for damages
arising from an alleged faulty design and construction of a structure is economic
. loss and the economic loss doctrine applies. Plaintiff argued that the economic
loss doctrine didn't apply in professional negligence cases, however, the Court
noted the rule that which bars recovery for economic losses in the absence of
privity as applied to actions against architects or cngiñcers was settled as a matter
of New York Law. Judge Skretny found there was no privity between the
architects and the company under the master agreement because the Plaintiff
contract"
failed to establish that it was not a "stranger to the or that the
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relationship between the Plaintiff and the Defendant was the "functional
privity"
equivalent of Because Plaintiff failed to submit any evidence of privity
and did not allege in the Complaint that it was a third-party bcñeficiary of the
subcontracts the architects had with Pavilion, the breach of contract claims as well
as the professional riegligence claims had to be dismissed. Stapleton v. Pavilion
BIdg. 1=#.nadon Sys., No. 09-CV-934S, 2017 U.S. Dist. LEXIS 14097,.at *13
(W.D.N.V. Jan. 31, 2017).
CONCLUSION
Plaintiff and LOUIS DESIGN are in privity even though there was not a
direct contract examwa between them based on the analysis set out by the Court
of Appeals. LOUIS DESIGN knew its reports were to be used for the Burchfield
Design Center, knew WEST SENECA was going to rely on its reports, and was
specifically named in the contract between Nussbaurner & Clarke and WEST ..
SENECA as a sub-consultant. Since there is privity between the parties WEST
SENECA is not an independent third party with no knowledge of the plans or
construction. It was an integral part of the plans from day one. The elaim to
repair the building is econotnic loss based on an allegation of malpractice. As
such, WEST SENECA was required to bring a lawsuit for architectural
malpractice (whether based in contract or in tort) within three years of the
contpletion of the project, at the latest. It did not, so this claini is time barred.
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CPLR §214(6) applies to this action and therefore the complaint must be
dismissed.
If WEST SENECA and LOUIS DESIGN are not in privity, as Plaintiff
now alleges, the economic loss doctrine applies which would also bar Plaintiff's
Complaint. Therefore, Defendant respectfully requests an Order of this Court
dismissing Plaintiff's Complaint.
Dated: November 9, 2018

Buffalo, New York
HILARY C. NKER, ESQ.

496 Main Street
(716) 854-1744
TO: JOHN W. DRESTE,ESQ.

925 Clinton Square
(585) 473-310
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TRANSCRIPT OF ORAL ARGUMENT OF MOTION TO DISMISS,

DATED NOVEMBER 2018 [164-
16, 185]
STATE OF NEW YORK : SUPREME COURT

COUNTY OF ERIE : PART 6
Plaintiff,
- vs - Index #: 817954/2017

(f/k/a Kideney Architects, Laping Jaeger Associates, P.C.)
Defendant.
Plaintiff,
- vs - Index #: 815187/2017

Defendant.
Plaintiff,
- vs - Index #: 815185/2017
Nussbaumer & Clarke, Inc.,
Defendant.
92 Franklin Street
November 16, 2018
MARIA PISAREK
OFFICIAL COURT REPORTER
308

165
B e f o r e:
HONORABLE JOSEPH R. GLOWNIA,
Supreme Court Justice.
A p p e a r a n c e s:
MATTHEW D. HOLMES, ESQ., & JOHN J. FENZ, ESQ.,

Appearing for the Town of West Seneca.
ANDREA SCHILLACI, ESQ.,

Appearing for Kideney Architects, P.C.
HILARY C. BANKER, ESQ.,

Appearing for Louis Design Solutions
Architecture, LLC.
ROBERT D. BARONE, ESQ.,

Appearing for Nussbaumer & Clarke, Inc.
h½RIA PISAREK
309

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1 THE CLERK: All parties in the matter of West
2 Seneca. Please note your appearance for the record.
3 MR. HOLMES: Good morning. Matt Holmes for the
4 Town of West Seneca.
5 MR. FENZ: John Fenz, F-E-N-Z, town attorney,
6 Town of West Seneca.
7 MR. BARONE: Good morning. Bob Barone for
8 defendant Nussbaumer & Clarke.
9 MS. SCHILLACI: Andrea Schillaci, Hurwitz &
10 Fine, for defendant Kideney Architects.
11 MS. BANKER: Hilary Banker for defendant Louis
12 Design Solutions.
13 MR. HOLMES: Your Honor, before we proceed,
14 given that our opposition to the motions to dismiss,
15 there's a number of different -- a number of similar
16 issues raised by each of the separate defendants. I guess
17 I'm asking the Court's preference on how you would like us
18 to proceed. Would you like each defendant to make an
19 argument on their motion and for us to respond separately
20 or may we wait? And given that the defendants all raise
21 similar arguments, may we respond to those arguments
22 collectively?
23 THE COURT: What's your thoughts, because it
24 might be more efficient to just -- I think most of the
25 arguments are the same.
MARIA PISAREK
310

167
1 MR. BARONE: I think mostly, Judge. I think
2 with respect to my client, they may be a little narrower.
3 THE COURT: Right.
4 MR. BARONE: May I?
5 THE COURT: With the contract, yeah. Sure. All
6 right. Go ahead.
7 MR. BARONE: Morning, Your Honor. Yes, Judge.
8 My client is Nussbaumer & Clarke. As it relates to
9 Nussbaumer & Clarke, I think this is a very
10 straightforward statute of limitations motion to dismiss.
11 The Town of West Seneca retained Nussbaumer & Clarke to
12 perform some professional engineering services related to
13 the construction of a building in West Seneca, which is
14 commonly referred to as the Burchfield Center. The
15 construction -- drawings were submitted back in 1998. In
16 mid '99, construction began. March 11, 2002, as is
17 alleged right in the plaintiff's complaint and confirmed
18 in the affidavit of the Nussbaumer & Clarke president, Mr.
19 Borowiak that was submitted, the building was certified
20 complete March 11, 2002.
21 I don't think there's any dispute here, Judge,
22 that the applicable statute of limitations CPLR 214(6),
23 that is the statute of limitations that is applicable to
24 professional malpractice. It doesn't matter how it's
25 characterized. There's case law on that. This is clearly
MARIA PISAREK
311

168
1 a claim of professional malpractice in connection with the
2 design related to that building. It's clearly a
3 three-year statute of limitations.
4 We submitted in our memorandum of law, Judge,
5 there's Court of Appeals decisions. There's decisions
6 from department contained with our memorandum --

every
7 within our memorandum of law, which indicate quite
8 clearly, Judge, it's settled law, that a claim against an
9 architect or an engineer relating to professional
10 malpractice, that claim accrues when the structure is
11 completed. When the work is done, the claim accrues, and
12 there is no question about that, Judge. There's boatloads
13 of case law that -- that make this Judge. And that

clear,
14 to is the critical issue as -- as it

me, Judge, certainly
15 relates to my client, and I believe as it really relates
16 to all of the defendants in these three separate actions.
17 So that being said, Judge, since the building
18 was completed over 16 years ago, and certified by the
19 plaintiff as completed back in 2002, the statute of
20 limitations expired March 11, 2005. This lawsuit was
21 commenced over 13 years late. That --

July 12th, 2018,
22 that is the whole story, Judge, that's all that the Court
23 needs to consider, I would submit. And I think the only,
24 you factor -- I don't even know if

know, complicating
25 that's the way to put it, Judge. The only potential
hmRIA PISAREK
312

169
1 argument that can be made to somehow get around this,
2 would be to cite the provision that has been cited, Judge,
3 CPLR 214-d, the plaintiff, the town in this case, they did
4 file a notice of claim and they did attempt to comply with
5 the provisions of 214-d, but I submit, Judge, it's
6 completely inapplicable to this situation entirely.
7 214-d, Your Honor, is applicable to a situation where
8 there is a timely claim, a claim that did accrue within
9 the statute of limitations and is timely filed within the
10 statute of limitations.
11 of if -- if
By way example, somebody somebody
..
12 were to go to a premises and, let's say, slip and fall, by
13 way of example, Judge, slip and fall in a parking lot.
14 Let's say the allegation was the parking lot was poorly
15 designed by the architects and the engineers, because the
16 water was pooling and it froze. Well, certainly, the
17 person who slipped and fell within the statutory period
18 would bring a timely claim against the property owners,
19 and then the owners could claim -- could make a

property
20 third-party claim against the engineers and the
21 architects. But what's at issue in that scenario, Judge,
22 are the injuries, that's a timely claim by a plaintiff
23 claiming personal injuries. Let's say, they can sue the
24 owners and the owner can third-party sue the architects.
25 But that's what it's limited to. It's limited to the
MARLA PISAREK
313

170
1 personal injury of the claimant. That does not allow the
2 property owner to then go on and say, oh, well, you know
3 it's -- it was so
what, yeah, okay, defectively designed,
4 in addition to the injuries that the plaintiff is
5 claiming, you know, as part of our third-party complaint,
6 we want the engineers to dig up the parking lot and
7 redesign and repave the parking lot or pay for it. That's
8 not a claim that is Judge. 214-d does not --

allowable,
9 does not -- and in its own 214-d

fact, by terms, Judge,
10 subsection eight expressly says that that section shall
11 not be construed to alter or extend a statute of
12 limitations.
13 So, Judge, I would submit that it's completely
14 inapplicable to the facts of this case. And clearly, on
15 the face of 214, the language of 214, this is not intended
16 to create additional exposure to architects and engineers,
17 quite to the contrary. It's -- on its it's designed

face,
18 to provide additional protection under circumstances where
19 they're now being sued 10 years or more after they
20 complete a project. And it's additional protection that
21 requires the filing of the notice of claim, it allows for
22 some discovery and it creates a heightened burden for a
23 plaintiff in the face of a motion for summary judgment.
24 So I would submit, Judge, certainly as it
25 relates to my client who did have a contract with the
h½RIA PISAREK
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171
1 plaintiff, who was in privity with the plaintiff, 214 has
2 nothing to do with it. And this is a straightforward
3 statute of limitations motion to dismiss. Clearly the
4 claim is not timely, Judge. Thank you.
5 MS. SCHILLACI: Your Honor, counsel for
6 Nussbaumer has made basically all of the arguments. I
7 would just like to supplement briefly. The legislative
8 history in the development of the statute of limitations
9 with respect to nonmedical professional negligence, such
10 as we have here, has consistently been moving in the
11 direction of protection of those nonmedical professionals.
12 There was a time which I'm sure the Court will recall not
13 so long ago where professional liability claims were
14 brought with alternate theories of tort and contract. And
15 the courts moved away from allowing the six-year contract
16 statute, very clearly focused on the three-year negligence
17 standard.
18 When 214-d was enacted, the legislature was
19 acutely aware of the threats to design professionals, and
20 specifically providing that this would not extend the
21 three-year statute of limitations, that it was not
22 intended to provide additional opportunities for people
23 who were in privity or near privity to completely ignore
24 that three-year statute. So this is designed for, as
25 counsel stated, strangers to that contract. Where here,
EmRIA PISAREK
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172
1 my client Kideney was not in direct privity with the town,
2 it was a subcontractor of Nussbaumer & Clarke. There was
3 a contract between Kideney and Nussbaumer that
4 incorporated by reference the terms of the contract with
5 the town.
6 In the plaintiff's own complaint, they make
7 specific reference to the fact that the work that was
8 being performed by my client was for the benefit of the
9 town, the town was going to rely on it. If anything, this
10 was a clear near-privity situation. I agree 214-d does
11 not apply. That's attempting to shoehorn something that
12 was never intended. The Cubito case cited by counsel for
13 Louis Design clearly provides a situation where 214-d
14 would apply. Tenant slips and falls in a laundry room,
15 personal injury. That was a situation where it was
16 permitted. But here, this is strictly an attempt to end
17 runaround the three-year statute of limitations, which is
18 not permissible. And if the Court finds it necessary to
19 even reach the question of the heightened burden, which we
20 submit that it does not even come into play, plaintiff has
21 failed to provide that information to support its claim.
22 MS. B.ANKER: Your Honor, thank you. Briefly,
23 counsel has pretty much covered every point. I want to
24 bring up a couple more points. Cubito is really where
25 this all started. The Cubito case, the woman who fell in
MARIA PISAREK
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10
1 the laundry room. In that case, the claim accrued when
2 she fell, when she sustained the injury, so the Court of
3 Appeals allowed that to go forward. In doing so, they
4 specifically noted, the plaintiff was not and never had
5 been in a professional relationship with the architect.
6 That was the difference. That was why they did not allow
7 the architect in that case to utilize the three-year
8 statute of limitations and utilize the accrual date of
9 when he completed the project.
10 In this case, it seems patently clear that there
11 was a professional relationship between the Town of West
12 Seneca and Louis Design. I think it was -- it's quite
13 obvious, but in response to the claim that they were not
14 in contractual privity, I went through and I cited the
15 cases from the Court of Appeals that talks about when --
16 how you know if two entities are in privity, particularly
17 in cases of professional malpractice. And there's a
18 three-prong test that I discuss in my reply memo of law.
19 And I go through each prong, and it's clear that there is
20 near privity as described in those cases.
21 As has already been mentioned, West Seneca
22 relied on the design. They say that Louis Design knew
23 that West Seneca was going to rely on the design. West
24 Seneca was in the terms of the contract with Nussbaumer
25 and said right in the contract with Nussbaumer what --
MARIA PISAREK
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11
1 Louis Design is going to provide these services. There
2 was a counter proposal. Again, Brian Louis is going to
3 provide these services. It's clear that there's a privity
4 relationship there. And that's why the three-year statute
5 applies as it did not in Cubito.
6 There's also some mention that, well, this isn't
7 a claim for economic loss. Honestly, Your Honor, I'm not
8 understanding how this is not economic loss. It's
9 -- want to repair what claim to be

clearly they they
10 problems caused by the failure of the design work. And
11 there is a case that I cited that I think is instructive.
12 It's Lake Placid versus Elizabethtown. It's a Third
13 Department case. And the plaintiffs were claiming that
14 their structure was deteriorating due to leakage and
15 seepage damage from the elements. So that was the claim.
16 And the Court said, look, you haven't made any claims
17 other than direct and consequential, non-accidental
18 economic loss; i.e., the cost of repair to make the

..
19 condominium units of habitable quality and loss of market
20 value. So there's no recovery in negligence.
21 So economic loss is defined as the cost of
22 repairs of this structure, whether you say it's due to
23 seepage, whether you say it's due to mold, it doesn't
24 matter. And just -- I said I would be I guess I

brief,
25 wasn't honest with you, Your Honor, but one more point.
MARIA PISAREK
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___
12
1 Judge Skretny of the Western District, he discussed this
2 very issue and what economic loss is, and he gives an
3 example. If the structure had fallen and injured a
4 worker, okay, that's not economic loss, but in that case,
5 the plaintiff sought damages to the structure itself
6 arising from the alleged faulty design in construction.
7 And in that case they found that the economic loss
8 doctrine barred the claim, because it was a claim in
9 negligence for economic loss.
10 So even if you find that there is no privity,
11 the economic loss doctrine applies, because that doctrine
12 states you cannot make a claim in negligence for economic
13 loss with an entity with whom you're not in privity. So
14 either way, this claim must fail. So we would ask that
15 you dismiss this complaint on statute of limitations
16 grounds. Thank you.
17 MR. HOLMES: Yes. Thank you, Your Honor. Your
18 Honor, a number of issues to address, but before we begin,

..
19 when the town first noticed the damage back in 2017 to the
20 Burchfield Center, the physical damage to the structure
21 itself, it was hoping that those entities involved in the
22 design of the Burchfield Center would step up to the plate
23 and help. Unfortunately, that's not the case that we have
24 here today.
25 Practical considerations on a motion to dismiss
MARIA PISAREK
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13
1 that the Court must take into account is that all of the
2 allegations that we have pled in our complaints against
3 these design professionals must be accepted as true. Yes,
4 there is a heightened standard in CPLR 3211-h. That
5 standard is actually a less than a preponderance of the
6 evidence standard. And the cases cited by the design
7 professionals for those standards say that to survive a
8 motion to dismiss on those grounds, keeping in mind that
9 the allegations that we've alleged must be accepted as
10 true at this point, all a party needs to do is to allege
11 the negligence of a certain design professional, how that
12 caused the damage at issue, specifically, Your Honor, the
13 Castle Village case; and furthermore, how that design
14 professional's negligence caused the personal injury or
15 the property damage that was suffered by the plaintiff.
16 And, Your Honor, in this case, we would submit
17 that we did meet our burden on all of the above to survive
18 a motion to dismiss, because we are seeking noneconomic
19 loss based on the negligent actions of these design
20 professionals. So, Your Honor, the design professionals
21 here --
specifically
22 THE COURT: What -- what is the economic loss?
23 MR. HOLMES: What is the economic loss?
24 THE COURT: Yeah.
25 MR. HOLMES: Your the -- there's specific

Honor,
RARIA PISAREK
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14
1 damage to the structure itself, the walls of the
2 Burchfield Center --
3 THE COURT: No. That's the economic loss.
4 What's the noneconomic loss?
5 MR. HOLMES: Your Honor, we would submit that is
6 not economic loss. That is physical damage to the
7 and what we've alleged is that the -- the --

property,
8 it's not a matter of the Burchfield Center failing to
9 perform, it's a matter of there being physical damage to
10 the structure itself, which is economic loss. And the
11 walls themselves in the photographs that we've provided,
12 and in the report, are rotting from the bottom up.
13 Physical forces from water and snow are intruding into the
14 Burchfield Center to cause this rot. Hardware off of the
15 walls are bursting. The building is essentially crumbling
16 on to itself and will deteriorate. Contrary to the cases
17 cited by the design professionals, we're not seeking the
18 cost to repair, to replace the Burchfield Center. We're

..
19 not seeking the cost to repair their designs. We're
20 seeking the cost because the physical structure itself has
21 been damaged and that is not economic loss. So, Your
22 we would submit that because we --

Honor,
23 THE COURT: Well, I'm having trouble following
24 that, I guess. It's dollars and cents to repair the
25 building, correct?
RARIA PISAREK
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15
1 MR. HOLMES: Well, Your Honor, what we've
2 alleged is that the Burchfield Center has been damaged.
3 Specifically, the structure itself has been damaged.
4 THE COURT: Well, the Burchfield Center is not a
5 person.
6 MR. HOLMES: But, Your Honor, CPLR 214-d allows
7 a claim for -- I'm Your Honor.

sorry,
8 THE COURT: It's a --

building
9 MR. HOLMES: Yes. And CPLR --
10 THE COURT: And it's suffered loss.
11 MR. HOLMES: It's suffered property damage.
12 THE COURT: Property damage.
13 1 MR. HOLMES: And that is in the statute, CPLR
14 214-d.
15 THE COURT: As a result of the water seepage,
16 et cetera, okay, and your allegations of the design?
17 MR. HOLMES: That's correct. And that --
18 THE COURT: But you're seeking money to fix it.
19 MR. HOLMES: Your the structure will --

Honor,
20 the structure will be -- you know Your at

what, Honor,
21 this point, the town doesn't know exactly what it intends
22 . to do the with structure. That's what's my understanding
23 but the fact --

is,
24 THE COURT: All right. So fix it or replace it
25 or but I guess --
whatever,
MARTA PISAREK
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16
1 MR. HOLMES: we -- and Your Honor --

Well,
2 THE COURT: It's economic loss. It's not pain
3 and suffering or another issue.
4 MR. HOLMES: Your it doesn't need -- we

Honor,
5 respectfully say it doesn't need to be pain and suffering.
6 It doesn't need to be -- the cases on are

they rely
7 personal and a few cases -- the cases where

injury, they
8 were discussing property are talking about the failures of
9 the products to perform were not all -- and in those cases
10 where the Court held that claims were barred by the
11 economic loss doctrine, that was based on the basis of the
12 products to -- the failure of the products of construction
13 to perform. We're not alleging that the Burchfield Center
14 did not perform as its intended purpose. We're alleging
15 that in 2017, the Town of West Seneca noted direct damage
16 to the structure of the Burchfield Center itself and
17 because of that, that is property damage that falls under
18 CPLR 214-d, which we would submit that the Town of West
19 Seneca is not in privity with Louis Design or Kideney as
20 well.
21 So, Your Honor, switching gears then, we believe
22 that the most important aspect of this motion to dismiss
23 are two separate sections of the CPLR that were enacted
24 after the Cubito case that Kideney and Louis Design both
25 rely on, Your Honor. And when CPLR 214(6) and 214-d were
RMRIA PISAREK
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180
17
1 enacted, yes, they were enacted to protect design
2 professionals, but they were enacted with two different
3 ideas in mind. One was about -- was

talking 214(6)
4 talking about a statute of limitations between a design
5 professional and its clients which can be an owner, or in
6 CPLR 214-d, it was discussing statute of limitations and
7 additional procedures that one must follow when you're --
8 the parties are not in privity with one another. What the
9 design professionals Louis Design and Kideney are alleging
10 is to read out the property damage portion of CPLR 214-d
11 and to say that an owner can never rely on those sections
12 of the CPLR.
13 I think in our opposition to the parties'
14 motions to dismiss, we made it clear that the legislative
15 history does not mention that strangers to the contract
16 are the only parties who can rely on CPLR 214-d. We made
17 it clear that parties who are not in privity with a design
18 professional and who have a claim based in Court for
19 noneconomic loss are allowed to utilize CPLR 214-d to
20 proceed with their actions. And any arguments by Kideney
21 and Louis Design regarding functional co-privity, as well
22 as any third-party beneficiary status, as we've explained
23 in the opposition, those don't apply here. This isn't a
24 claim for negligent misrepresentation, which as the Court
25 of Appeals has specifically reiterated that the test
AmRIA PISAREK
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181
18
1 for -- as the Court of Appeals specifically reiterates,
2 the functional equivalent of privity tests relates solely
3 to actions based on negligent misrepresentation by
4 professionals that resulted in purely economic loss.
5 That's not the situation that we're contending exists
6 here. So the function of any argument that the functional
7 privity test applies, we believe is wholly inapplicable.
8 And furthermore, any arguments by the parties
9 that we were an intended third-party beneficiary of these
10 is also misplaced as well because of the Court of Appeals
11 decision in Samson versus DASNY. In that case, there's no
12 reference in any of the sub-consultant agreements between
13 Kideney and none that Louis Design has pointed out that
14 the town is an expressed third-party beneficiary of that
15 contract. So we were not in privity with Kideney and
16 Louis Design.
17 We'll concede that we were in privity with
18 Defendant Nussbaumer & Clarke, but we were not in privity
19 with those and because our claims -- we noticed

parties,
20 the property damage to the Burchfield Center in 2017, and
21 we followed the procedures of CPLR 214-d, our claims are
22 timely under that section and they are proper as well.
23 Your I think I've addressed their --

And, Honor,
24 the arguments raised by the design professionals, but if
25 the Court has any further questions, I'm happy to address
h½RIA PISAREK
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19
1 those as well.
2 THE COURT: I'm sorry. I did not hear the tail
3 end of what you just said.
4 MR. HOLMES: If the Court has any other
5 questions, I would be happy to address those as well.
6 THE COURT: No.
7 MR. HOLMES: Okay.
8 THE COURT: Go ahead.
9 MR. BARONE: Just very briefly, Your Honor. I
10 hope I heard it correctly.
11 MR. HOLMES: You did.
12 MR. BARONE: And I think it was indicated in the
13 papers that there is now a concession that at least my
14 client, Nussbaumer & Clarke, was in privity. There's a
15 contract. They were in privity, and therefore 214-d does
16 not apply to them.
17 THE COURT: I thought you might seize on that.
18 MR. BARONE: Yes. Well, I'm not that sharp,
19 Judge. It took me a little while, but in any event, if
20 that's the case, I mean, clearly, we're left with the
21 three-year statute of limitations, the case has to be
22 dismissed as against them. I would just say that and we
23 are relying on the pleadings. I mean, we can assume
24 everything as being true as pled in the original summons
25 and complaint. And the fact of the matter is, the work
MARIA PISAREK
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20
1 was completed. They admitted it was completed many, many
2 years ago, the three-year statute of limitations applies.
3 And on the face of their own pleadings, assuming and
4 accepting them as true as pled, the case has to be
5 dismissed against my client. That's it.
6 MS. SCHILLACI: Your Honor, I'm convinced that
7 had we been here within that three-year statute of
8 limitations, the town would be describing all of the
9 reasons why it was in privity and could maintain this
10 action directly against Kideney. Leaving that aside,
11 however, it's interesting that while counsel states that
12 this is not a purely economic claim, it's I'm sure not a
13 coincidence that the wherefore clause in the plaintiff's
14 complaint is exactly identical to the report which
15 describes the cost of repairs for the Burchfield Center,
16 which is attached as Exhibit F to their complaint. So
17 clearly by the nature of the pleadings themselves, this is
18 purely an economic claim for damages and should be barred
19 on that basis.
20 MS. BANKER: Your Honor, on the privity issue,
21 if I'm the it's that we -- I think

understanding argument,
22 they're saying, you don't use the analysis about near
23 privity in a case involving architects and professional
24 malpractice. That's just simply not the case and I cite
25 Tambrands, Inc. versus Lockwood Green Engineers. That's a
h½RIA PISAREK
327

184
21
1 Second Department case. It specifically states they were

. .
2 asserting an action in breach of contract and professional
3 malpractice. In that case, the architect was alleging
4 there is no contractual privity, so it was a flip flop of
5 what they're saying. The architect in that case was
6 saying no privity. The courts have said, it's well
7 settled that such a claim might be asserted absent privity

..
8 of contract when the relationship of the parties is so
9 close as to approach that of privity. In that case, they
10 found a question of fact regarding the architect's
11 understanding that the plaintiff was relying on his

..
12 report. And that had to do with whether there was
13 asbestos in the fireproofing material.
14 In this case, again, going back to the
15 pleadings, West Seneca itself asserts in its pleadings,
16 Louis Design knew they were going to rely on it. So if
17 you look at the pleadings, there's privity based on their
18 own allegations. And it's just -- it's economic

again,
19 loss. I mean, and as counsel pointed out, it's again
20 looking at their pleadings, it's right there, cost of
21 repair, and they itemize it. This is what we need,
22 structural repairs, roof repairs, and they go down, and
23 that's what they're claiming. Again, I would ask that the
24 complaint be dismissed.
25 MR. HOLMES: Your Honor, just simply, we would
h½RIA PISAREK
328

185
22
1 contend as we've laid out in our reply is that the
2 functional --
3 THE COURT: Can you use the mic?
4 MR. HOLMES: The functional privity test is
5 inapplicable in this case. The Town of West Seneca was
6 not in privity with Louis Design and Kideney for the
7 reasons we've articulated in our opposition to this
8 motion, so we would ask that because of our claim for the
9 negligent performance of their design services led to the
10 damage to the Burchfield Center, to the structure itself,
11 that was first noticed in 2017, accepting the allegations
12 in our complaint as true, we believe that we've satisfied
13 the heightened standard of CPLR 3211-h, and that this
14 claim should be allowed to go forward.
15 THE COURT: Anything further?
16 MS. BANKER: No, Your Honor.
17 THE COURT: I'm granting the motions to dismiss.
18 MR. BARONE: Thank you, Your Honor.
19 MS. BANKER: Thank you, Your Honor.
20 MS. SCHILLACI: Thank you, Your Honor.
21 * * * *
22 Certified to be a true and accurate transcript.
23
24 GAha Pa
25 MARIA PISAREK
RARIA PISAREK
329

186
STATE OF NEW YORK

THE TOWN OF WEST SENECA, NEW YORK, CERTIFICATION

OF SETTLEMENT
Plaintiff/Appellant OF TRANSCRIPT
-against-
Index No. 815187/2017

Appellate Case No.
CA-18-02366

Defendant/Respondent
____
STATE OF NEW YORK )

) ss:
COUNTY OF MONROE )
Matthew D. Holmes, Esq., being duly sworn, deposes and states as follows:
I certify that a true and complete transcript of the proceedings included in the
Record on Appeal were served on counsel for Respondent by means of Notice of
Settlement of Transcript and that Respondent failed to propose amendments or object to
the same in accordance with the time periods prescribed in CPLR 5525(c).
Sworn to me this ___
Day of___, 2019
Notary Public
1
330

ORDER SETTLING
RECORD
331
EXHIBIT 4 -
STIPULATION SETTLING TRANSCRIPT IN LIEU OF CERTIFICATION
STATE OF NEW YORK

Plaintiff
-against- STIPULATION SETTLING

TRANSCRIPT IN LIEU OF
CERTIFICATION
Index No. 815187/2017

Appeal#: CA 18-02366

Defendant
IT IS HEREBY STIPULATED, by and between the attorneys for the parties hereto,
pursuant to Rule 5532 and 5525 of the CPLR, that the foregoing transcript is a true and complete
copy of the transcript of the proceedings that form the basis of this appeal, and that the foregoing
transcript may be considered settled without further objection.
This Stipulation may be executed in one or more counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
DATE: February_, 2019 DATE: February_, 2019
Matthew D. Holmes, Esq. Hilary C. Banker, Esq.

Ernstrom & Dreste, LLP Burgio, Curvin & Banker
Attorneys for Plaintiff!Appellant Attorneys for Defendant/Respondent
925 Clinton Square 496 Main Street
Rochester, New York 14604 Buffalo, New York 14202
(585) 473-3100 (716) 854-1744
332
EXHIBIT 5 -
EMAIL COMMUNICATION BETWEEN COUNSEL [332-334]
Laura Dobbs
From: Laura Dobbs

Sent: Thursday, March 14, 2019 11:01 AM
To: Laura Dobbs
Subject: FW: TWS v Louis Design
From: Hilary Banker <JJ_ilary@bur:gjQcu.rvin.com>

Sent: Thursday, February 07, 2019 9:53AM
To: Matthew D. Holmes <MH_9Jmes@ed:llp.com>
Cc: Hailey Beers <HBe5=rs@ec!:UQ.com>; Kristin M. Tabone
Subject: RE: TWS v Louis Design
Matt, the transcript gives no reasoning at all so that can't be your basis. The transcript contains no facts, just
argument. Therefore like a memo of law, it is not part of the record on appeal. A transcript of a proceeding, like a
hearing or a trial, where there is evidence presented and testimony taken, becomes part of the record on appeal. This is
not a proceeding it was oral argument on a motion.
You tried to get Glownia to include it and he didn't. I'm not letting you backdoor it in this way. Your evidence needed to
be in your papers. Clearly you know it is not proper or you wouldn't have tried to get me to stipulate to adding it.
Hilary C. Banker I hilary@burgiocurvin.com
Burgio Curvin(::.:r'Bank:er l ; \ "
496 Main Street Buffalo, New York 14202

p: 716.854.1744 I f: 716.854.1749 I yvww.Q_t,Jrgio<;;_\.lrVl!l:f_QD.l
This message is being sent by or on behalf of a lawyer; it is intended for the exclusive use of its intended recipient and may contain
information that is privileged or confidential or otherwise legally exempt from disclosure. If you are not the intended recipient or an
employee or agent responsible for delivering this message to the intended recipient, you are not authorized to read, print, retain, copy
or disseminate this message or any part of it. If you have received this message in error, please notify us immediately by email, discard
any paper copies and delete all electronic files of the message. If you are not sure as to whether you are the intended recipient, please
respond to the above e-mail address.
From: Matthew D. Holmes <MHolmes@ed-IIQ.com>

Sent: Wednesday, February 6, 2019 1:29 PM
To: Hilary Banker
Cc: Hailey Beers Kristin M. Tabone
Hilary,
I also wanted to note that CPLR 5526 says that a record on appeal for appeals from a final judgment or an interlocutory
judgment or any order shall include a transcript. See also Mergl v. Mergl, 19 A.D.3d 1146, 1147 (4th Dep't 2005) (holding
that the Fourth Department's rules provide that "the complete record on appeal shall include, in the following order: the
notice of appeal with proof of service and filing; the order or judgment from which the appeal is taken; the decision, if
any, of the court granting the order or judgment; the judgment roll, if any; the pleadings of the action or proceeding; the
corrected transcript of the action or proceeding ... ) (emphasis added).
1
333
Matt
From: Matthew D. Holmes

To: 'Hilary Banker' <bJJ.9.I'L@Q_urgiocl![vin.co_rn>
Hilary,
A TOC for the record on appeal will be forthcoming, but the transcript must be included. As you know, there is no
written decision explaining why the Judge granted your motion to dismiss. The transcript provides the only reasoning for
why the Court granted the motion to dismiss and is the opinion of the Court. The mere fact that it was not attached to
the order does not mean it cannot be part of the record. The affidavits and exhibits were not attached to the order, but
yet those are parts of the record on appeal.
Please let me know if you will consent to including the transcript in the record on appeal.
Matt
From: Hilary Banker <hilar_y..@.!?._um.L9cUr\.'liu:;orn>

To: Matthew D. Holmes <MHolmes@ed-llp.com>
Cc: Hailey Beers <HBeers@ed .. llp.com>; Kristin M. Tabone <KTabone(aJed-llp.com>
I don't understand this. The transcript was not added by Judge Glownia as part of the order thus not part of the record
on appeal. Where is the TOC for the record on appeal?
Hilary C. Banker I hilary@burgiocurvin.com
Burgio 'i ; ' '
496 Main Street Buffalo, New York 14202

p: 716.854.1744 1 f: 716.854.1749 I :w_yy_vy_,PJJ..mi.Q£1lrY.J.ru::Qm
This message is being sent by or on behalf of a lawyer; it is intended for the exclusive use of its intended recipient and may contain
information that is privileged or confidential or otherwise legally exempt from disclosure. If you are not the intended recipient or an
From: Matthew D. Holmes <MHolrnes@ed-llp.com>

To: Hilary Banker <JJliE.r_y_@__i;!_urgiocurvin.CQ.!lP
Subject: TWS v Louis Design
2
334
Hilary,
Please see the attached stipulation and copy of the transcript from the argument on the parties' motions to dismiss. If
acceptable to you, please sign the attached stipulation and return the same to me.
Best,

Ernstrom & Dreste, LLP
925 Clinton Square
(585)473-3100
(585 )242-4960
nlholmes@ed-llp.com
3
335
EXHIBIT 6 -
NOTICE OF SETTLEMENT OF TRANSCRIPT, DATED FEBRUARY 7, 2019
STATE OF NEW YORK

Plaintiff
NOTICE OF SETTLEMENT
OF TRANSCRIPT
-against-
Index No. 815187/2017
Appellate Case No.:
CA-18-02366
(file/a Louis Design Group)
Defendant.
PLEASE TAKE NOTICE that pursuant to CPLR 5525(c), a copy of the annexe
transcript is hereby served upon you and upon your failure to serve upon the undersigne
attorney for appellant your proposed amendments or objections, within the time limited b
subparagraph 1 ofCPLR 5525(c), the provisions of subparagraph 2 ofCPLR 5525(c) shall apply
DATED: Rochester, New York

February 7, 2019

Emstrom & Dreste, LLP
Attorneys for Plaintiff
ERNSTROM
&DRESTE
LLP
925 Clinton Square
925 CLINTON SQUARE (585) 473-3100
ROCHESTER, NY 14604

496 Main Street
336
EXHIBIT 7 -
CORRESPONDENCE FROM HILARY BANKER, ESQ. TO
MATTHEW HOLMES, ESQ., DATED FEBRUARY 15, 2019
Burgio
496 Main I Buffalo, New York 14202 I T: 716.854.1744 ! F: 716.854.1749 I www.burgiocurvin.com
February 15, 2019

925 Clinton Square
RE: The Town ofWest Seneca, New York vs. Louis Design Solutions Architecture, LLC
Our File No. H0-4804
Dear Mr. Holmes:
I am in receipt of your Notice of Settlement of Transcript relative to the above

referenced. However, as we discussed at length via email on February 6th and 71h, the transcript
of oral argument on the motion is not properly included in the record on appeal. Oral argument
is not the same as a proceeding such as a hearing or trial. At a hearing or trial evidence is taken
and therefore is properly part ofthe record on appeal. Oral argument, and Memoranda of Law,
are not properly included as part of the record on appeal.
Please also recall that you wrote to Judge Glownia and specifically requested that he
attach a copy of the transcript of the argument to the Order. Justice Glownia signed your Order
but did not include the transcript of oral argument. If Justice Glownia believed that the oral
argument should be included, he would have attached it. Since he specifically did not include it,
it is not part of the record on appeal.
Please accept this letter as my specific objection to the entire transcript which you
forwarded on February 7, 2019 pursuant to CPLR 5525(c).
Thank you for your consideration of this matter.
V cry truly yours,
HCB/sp
Ernstrom
Date Sent:
&tr t
e, LLP
By: 0 USM /o Overnight 10 pi)'
Rec'd: r:l/ ,.,. aX/Elect. /o Hand 1
James P. Burgio I Steven P. Curvin J Hilat-y C. Banker

337
EXHIBIT 8 -
CORRESPONDENCE FROM MATTHEW HOLMES, ESQ. TO
HILARY BANKER, ESQ., DATED FEBRUARY 27, 2019
RNSTROM
&DRESTE
LLP
February 27,2019
VIA JST CLASS MAIL

Burgio Curvin & Banker
496 Main Street
Re: Town of West Seneca v. Louis Design Solutions Architecture, LLC.

Index No.: 815187/2017
Appellate Case No. CA-18-02366
Dear Ms. Banker:
I am in receipt of your February 15, 2019 letter in which you object to the inclusion of
the transcript in any proposed record on appeal.
As indicated in my Notice of Settlement of the Transcript, the purpose was for you to
provide me with objections or amendments to the content of the transcript, not the inclusion of
it. You did not provide me with any amendments or objections to the content of the Transcript
within fifteen days of February 7, 2019. Therefore, the Transcript will be considered correct and
settled pursuant to CPLR 5525(c).
Very tmly yours,
Matthew
mholmes@ed-llp.com
MDH/led
925 CLINTON SQUARE • ROCHESTER, NY 14604

PHONE 585-4 73-3100 • FAX 585-4 73-3113
ernstromdreste.com
338
EXHIBIT 9 -
CORRESPONDENCE FROM HILARY BANKER, ESQ. TO
MATTHEW HOLMES, ESQ., DATED MARCH 4, 2019
Burgio Curvin BankerA'I"tORNf>YS
496 Street I Buffi,lo, New York 14202 j T: 716.854.1744 I F: 716.854.1749 I www.burgiocurvin.com
March 4, 2019

925 Clinton Square
RE: The Town of West Seneca, New York vs. Louis Design Solutions Architecture, LLC
Our File No. H0-4804
Dear Mr. Holmes:
Reference is made to your letter of February 27, 2019.
Regardless ofwhat the purpose of your "Notice of Settlement ofthe Transcript" was, my
objection was clear. You asked Justice Glownia to attach it to the Order. He did not. You asked
me to stipulate to its inclusion in the record, I would not, and it is not properly part of the record.
Whether or not the transcript is an accurate recording of the proceeding is irrelevant. It is
argument, not evidence, and is not properly part of the record on appeal.
If you include it as part of the record on appeal, I will request that the record be stricken
and also request sanctions.
Very truly yours,
HILARY C. BANKER
HCB/sp
Ernstrom & nreste. r JJ?

Date Sent:_ 3
I '-1
By: o USM lo Overnight jo Fax/Elect.lo Hand I
Rec'd: .3 t<D h
James P. Burgio I Steven P. Curvin ! Hilary C. Banker

339
REPLY AFFIRMATION OF HILARY C. BANKER, ESQ., DATED APRIL 8, 2019 [339-343]
STATE OF NEW YORK

------------------- __ _ _ _ _ _ _ _ _ _..___________________
Plaintiff
vs. REPLY AFFIRMATION
Index No. 815187/2017

Defendant
______.._________________________________
HILARY C. BANKER, ESQ., an attorney duly licensed to practice law in the State of
New York, affirms the following under the penalties of perjury:
1. That she is a partner in the law firm of BURGIO, CURVIN & BANKER,
attorneys for LOUIS DESIGN SOLUTIONS, and as such, is fully familiar with the facts and
circumstances surrounding this motion.
2. That this Affirmation is prepared in opposition to Plaintiff's motion to include the
transcript of oral argument, which oral argument encompassed three separate cases which have
not been consolidated or joined for trial, in the Record on Appeal relative to LOUIS DESIGN
SOLUTIONS's motion to dismiss for failure to commence the action within the three year
Contrary to Plaintiff's position in this case, the transcript of oral argument
does not contain the Court's reasoning and therefore is improperly included in the Record.
Similarly, the Memoranda of Law submitted in this case, including Plaintiff's "Uniforn1/Joint
1 of 5
340
Memorandum of Law in opposition to motions to dismiss of all Defendants and in support of its
Inc."
motion to amend the Complaint against Nussbaumer & Clarke, is not properly included.
3. In reviewing the Affidavit submitted in support of Plaintiff's motion, the sole
basis for inclusion of the transcript of oral argument of the motions to dismiss is to assist the
Appellate Division in
determining why the Court granted the motion to dismiss. However, the
transcript of the oral argument does not contain the reasoning of the Court and therefore all of
the cases cited by Plaintiff are completely irrelevant. Since the Court did not state its
reasoning
in the transcript, the transcript contains only the oral argument of the attorneys, and therefore is
not evidence, and should not be included in the Record on Appeal.
4. Plaintiff in this case decided to commence three separate actions for the exact
same damage allegedly sustained at the Charles E. Birchfield Nature & Art Center. The
Complaint against LOUIS DESIGN SOLUTIONS is attached as Exhibit A, the Complaint
against Nussbaumer & Clarke, Inc. is attached as Exhibit B, and the Complaint against Kideney
Architects is attached as Exhibit C. Plaintiff had the opportunity to commence these actions
together, however, chose not to. Then, when it came to each Defendant's motion to dismiss
"joint"
based on the statute of limitations, Plaintiff chose to do a Memorandum of Law in
opposition to all the motions and also included an additional motion with respect to amending
the Complaint. Per review of the online file, it appears that the Appeal against LOUIS DESIGN
SOLUTIONS is the only one that Plaintiff is pursuing. Therefore, it is improper to include a
Memorandum of Law or a transcript of oral argument which also includes argument against two
completely separate Defendants, from two separate actions, and which also includes a motion
2 of 5
341
that has no bearing on the motions to dismiss. Plaintiff could have commenced all the actions
together, or he could have done separate Memoranda of Law, and had separate oral argument for
each case. He chose not to do so.
5. It should also be noted by the Court is that on behalf of the Defendant I submitted
an Order to the Court which contained the reasoning behind the decision which was that the
Complaint was dismissed on statute of limitations grounds. Ironically, Plaintiff objected to this
Order and insisted that the Order be as vague as possible. Attached as Exhibit D is the email
exchange between the undersigned and Plaintiff's counsel with respect to the proposed Order.
On behalf of Defendant LOUIS DESIGN SOLUTIONS the undersigned submitted an Order
stating that the reason for the dismissal of the Complaint was the statute of limitations.
Plaintiff s counsel responded with an alternate Order which eliminated the reason for the
dismissal. Most pertinently, when asked why he was requesting the change to the Order,
Plaintiff's counsel, via email on November 21, 2018, stated the following:
"Simply that the Court issued no written or verbal decision and
made absolutely no determination at oral argument that the case

grounds."
would be dismissed on statute of limitations
Therefore, contrary to what Plaintiff's counsel is arguing in the instant motion, in November of
2018 he admitted that the Court issued no written or verbal decision and made no determination
at oral argument as to the basis of the dismissal. Plaintiff's argument made now, that the
transcript should be included because it provides the basis for the dismissal, is obviously
incorrect and contradictory. Notably, Mr. Holmes stressed again in a further email from
November 21, 2018:
3 of 5
342
"Because there was no actual verbal or written opinion, I think it is
improper to state the reasoning of the Judge in the proposed

Order."
6. As a compromise, I submitted my proposed Order as well as Plaintiff's counsel's
proposed Order to this Court's Confidential Law Clerk Peter Crotty, Esq. and outlined the
Holmes'
conflict between the parties. As it turns out, this Court signed Mr. Order, which did not .
state the grounds for the dismissal (cover letter to Peter Crotty, Esq. with two proposed Orders,
attached as Exhibit E).
7. As also can been noted in the email stream (Exhibit D), Plaintiff's counsel
requested that the transcript be attached to the Order. I indicated that it was not my custom to
attach a transcript to an Order but that if Mr. Holmes wished to submit it to the Court and request
that it be attached, I had no objection. Mr. Holmes did so by virtue of a faxed letter of
November 29, 2018, a copy of which is attached as Exhibit F. As the Court knows, the Court
declined to include the twenty-two page transcript of oral argument which again is relevant to
two other cases which are not joined or consolidated either for trial or for purposes of this
Appeal.
8. Plaintiff claims that inclusion of the transcript of the oral argument of the various
motions in these three cases is required because the transcript states the Court's reasoning for
dismissal of the Complaint. On the other hand, he objected to my proposed Order which stated
the Court's reasoning for dismissal of the Complaint, and his reason for
doing so was that there
was no written or oral decision. To now claim that there was such a decision
merely for the
purposes of inclusion of this transcript in the Record on Appeal is improper.
4 of 5
343
9. Similarly, including the Memorandum of Law, which was a joint memoranda for
two un-joined cases and an unrelated motion and which contains legal argument only, again is
improper. The Appellate Division should decide the Appeal based on the evidence, exhibits and
facts submitted, not on vague arguments by counsel which are either in connection with cases
against other Defendants, or which were not accurately and adequately briefed in Plaintiff's
motion papers.
WHEREFORE, your deponent respectfully requests an Order of this Court denying
Plaintiff's motion to include Memoranda of Law or transcripts of oral argument in this Record
on Appeal together with such other and further relief as this Court may deem just and proper.
Buffalo, New York
HILARY C.¼ANKER, ESQ.

496 Main Street
(716) 854-1744
925 Clinton Square
(585) 473-3100
5 of 5
344
EXHIBIT A -
VERIFIED COMPLAINT TO LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC,
DATED JULY 11, 2018
345
EXHIBIT B -
VERIFIED COMPLAINT TO NUSSBAUMER & CLARKE, INC.,
DATED JULY 11, 2018 [345-352]

(PILED: ERIt COUNTY CLERK 0 7 /12 /2 018 0 9 : 41 W INDEX NO. 815185f 2017
NYSCEF DOC. NC. 5 RECEIVED NYSCEF: 07/12/2018
STATE OF NEW YORK

Plaintiff

Index No. 815185/2017
Nussbaumer & Clarke, Inc.,
Defendant
Ernstrom & Dreste, LLP, for its Verified Complaint against Nussbaumer & Clarke, Inc.
("NCI"), alleges as follows:
PARTIES
2. Upon information and belief, Defendant NCI is a domestic corporation
organized and existing under the laws of the State of New York with a principal place of
E business located at 3556 Lake Shore Road, Suite 500, Buffalo, New York 14219-1494.
3. At all times relevant herein, NCI was engaged in, among other things, the
925 CUNTONSQUARE
ROcHESTER,NY 14604
business of providing professional engineering services.
PROJECT BACKGROUND
1 of 8
346

INDEX NO. 815185/2017
FILED : ERI H COUNTY CLERK 07 /12 /2 018 09 : 41 AM|
and proximately caused by NCI's negligence in performing its engineering design services.
6. In or about January 20, 1998, NCI issued a proposal to West Seneca for
professional engineering services at the Burchfield Center. Attached hereto as Exhibit A
is a copy of the January 20, 1998 proposal.
7. In or about March 31, 1998, NCI issued a supplemental proposal to the
existing agreement with West Seneca to add the development of the Burchfield Center
Park Master Plan. Attached hereto as Exhibit B is a copy of the March 31, 1998,
supplemental proposal.
8. Upon information and belief, in or about November 1998, NCI prepared a
first set of construction drawings, including a site plan that West Seneca intended to rely
on and use in the construction of the Burchfield Center.
9. In or about May 25, 1999, NCI informed West Seneca of a supplemental
proposal to change the structure of the Burchfield Center building from modular
construction to a custom build, indicated that Louis Design Group would proceed with
ERNSTROM
&Dr¿ysTE architectural work on the Burchfield Center, indicated that NCI would provide structural
925 CLINTONSQUARE plans, eleVatÏOnS,Sections, and details of the foundation and framing for the Burchfield
ROCHESTER,NY 14604
Center, and stated that 25 sets of plans and specifications will be provided to West Seneca
1999 supplemental proposal is attached hereto as Exhibit C.
2 of 8
347

INDEX NO. 815185/2017
[FILED : ERI E COUNTY CLERK 07 /12 /2 018 09 : 41
10. Thereafter, upon information and belief, NCI proceeded to design the
Burchfield Center in accordance with the West Seneca's goals, objectives, and
expectations and otherwise for the benefit of West Seneca.
Center dated June 1999. Attached hereto as Exhibit D are copies of the sets of June 1999
12. West Seneca relied on the advice, recommendations, and drawings of NCI
before bidding out the construction of the Burchfield Center.
14. In or about March I1, 2002, West Seneca certified that the Burchfield
hung windows, a significant amount of differential wall settlement near window locations,
wood rot at the bottom of the walls of the Burchfield Center, and differential settlement of
ERNSTROM
&DRKJSTE the stud walls.
925 CLINTONSQUARE
ROCHESTER,NY 14604
3 of 8
348

I NDEX NO . 815185f 2 017
[FILED : ERIM COUNTY CLERK 07 /12 /2 018 0 9 : 41 AM)
NYSCEF DOC. NC. 5 RECEIVED NYSCEF: 07/12, 2018
Attached hereto as Exhibit E is a copy of Building Science Services, LLC's April 28,
2017 Review of Conditions and Report of Findings.
specifications as to where the ground elevations were intended to be, and such improperly
the Burchfield Center's floors lap elevation, 2-3 inches below the surrounding earth grade,
21. As a result of the improper design of the Burchfield Center, West Seneca
has suffered direct and consequential damages in a sum which shall be determined by the
Court, but which is believed to exceed $1,722,664.00.
22. West Seneca duly provided notice to NCI of its claims pursuant to CPLR
214-d upon discovery of the property damage. Attached hereto as Exhibit F is a true and
complete copy of West Seneca's Verified Notice of Claim Pursuant to CPLR 214-d against
NCI along with the affidavit of service.
E 23. West Seneca has fully complied with the requirements contained in CPLR

925 CLINTONSQUARE
ROCHESTER,NY 14604
4 of 8
349

(FILED INDEX NO. 815185/2017
: ERIb: COUNTY CLERK 07 /12 /2 018 0 9 : 41
(Malpractice and Negligence NCI)
"1" "23"
25. Upon information and belief, NCI was retained by West Seneca to design
the Burchfield Center for the benefit of West Seneca and to provide all those engineering
services necessary to construct and complete the Burchfield Center.
26. NCI possessed special knowledge and skills as it related to the professional
engineering services it provided West Seneca for the design of the Burchfield Center.
27. NCI knew that its professional engineering services were for the benefit of
the Plaintiff.
28. NCI knew that its professional skills, its development of the Burchfield
Center, and its final design documents including drawings, plans, and recommendations,
would be used and relied upon by the Plaintiff for the construction of the Burchfield
Center.
29. By preparing the design of the Burchfield Center, NCI impliedly
represented to Plaintiff that it had the reasonable degree of skill usually possessed by a
professional engineer, that it was familiar with the construction materials and practices in
E s
ÊrÏ use in the construction of the Burchfield and that it was familiar with the
ordinary Center,
Various building code provisions governing construction of the Burchfield Center.

925 CLINTONSQUARE
ROCHESTER,NY 14604
30. In providing its professional engineering services in connection with the
construction of the Burchfield Center, NCI owed the Plaintiff a duty to use that degree of
skill and learning normally possessed and used by a professional engineer in good standing
in a similar practice and under like circumstances.
5 of 8
350

INDEX NO. 815185/2017
[FILED : ERI COUNTY CLERK 07 /12 /2 018 09 : 41 AM|
31. NCI breached its duty to Plaintiff by failing to properly design the
Burchfield Center.
32. As a direct and proximate result of NCI's breach of its duty to use that
degree of skill and learning normally possessed and used by a professional engineer in
good standing in a similar practice and under like circumstances, in delivering its
professional engineering services, the Plaintiff has suffered direct property damages to the
Burchfield Center in a sum which shall be determined by the Court, but which is believed
to exceed $1,772,664.00.
requests judgment against Defendant Nussbaumer & Clarke, Inc. as follows:
a. On its First Cause of Action, judgment in favor of Plaintiff and against
Defendant, in an amount which exceeds $1.772,664.00, but which amount will
ERNSTROM
&D§ysrs
925 CLINTONSQUARE
ROCHESTER,NY 14604
6 of 8
351

INDEX NO. 815185/2017
(F ILED : ERI M COUNTY CLERK 07 /12 /2 018 0 9 : 41 AM)
Dated: July 2018

925 Clinton Square
(585) 473-3100
.IDreste(ii?ed-1lp.com
M1lolmes(ited-IIp.com
925 CUNTONSQUARE
ROCHESTER,NY 14604
7 of 8
352

[FILED : COUNTY CLERK 07/12 /2018 09 : 41
VERIFICATION
STATE OF NEW YORK )

) as.:
COUNTY OF ERIE )
and my involvement with the Burchfield Center after completidn fthe P·oject.

//__*
day of Ju , 2018.
JACOUELINE A. FELSER
Uc. # 01FE4954926
Qualified In Erle County
My Commission Expires August 21, 20c.2/___
8 of 8
353
EXHIBIT C -
VERIFIED COMPLAINT TO KIDENEY ARCHITECTS, P.D.,
DATED JULY 11, 2018 [353-360]

[FILED : ERI U COUNTY CLERK 0 7 /12 / 2 018 0 9 : 51 $ INDEX NO . 8 17 9 5 4 , 2 O1 7
NYSCEF DOC. NC. 8 RECEIVED NYSCEF: 07/12, 2018
STATE OF NEW YORK

Plaintiff

Index No. 817954/2017

Defendant
Ernstrom & Dreste, LLP, for its Verified Complaint against Kideney Architects, P.C. (f/k/a
Kideney Architects, Laping Jaeger Associates, P.C.) ("Kideney"), alleges as follows:
PARTIES
2. Upon information and belief, Defendant Kideney is a domestic professional
ERNSTROM corporation organized and under the laws of the State of New York with a
psTE existing
&Dy
principal place of business located at 143 Genesee Street, Buffalo, New York 14203.
925 CLINTONSQUARE
ROCHESTER,NY 14604
3. At all times herein, Kideney was engaged in, among other things, the
business of providing professional landscape architectural services.
1 of 8
354

INDEX NO. 817954/ 2017
[F ILED : ERI COUNTY CLERK 07 /12 /2 018 0 9 : 51 AM|
PROJECT BACKGROUND
and proximately caused by the Kideney's negligence in performing its professional
landscape architectural services.
6. In or about January 20, 1998, Nussbaumer & Clarke, Inc. ("NCI"), issued a
• proposal to West services at the

Seneca for professional engineering Burchfield Center.
Attached hereto as Exhibit A is a copy of the January 20, 1998.
7. In or about March 3, 1998, Kideney issued a proposal to NCI for landscape
architectural services for the Burchfield Center. Attached hereto as Exhibit B is a copy of
Kideney's March 3, 1998, proposal.
8. In or about March 31, 1998, NCI issued a supplemental proposal to the
existing agreement with West Seneca to add Kideney for development of the Burchfield
Center Park Master Plan. Attached hereto as Exhibit C is a copy of the March 31, 1998,
RNSTROM
STE supplemental proposal.
925 CLINTONSQUARE 9- In Or abOut July 9, 1998, NCI and Kideney executed a contract for
ROCHESTER.NY 14604
consulting services regarding landscape planning at the Burchfield Center. Attached
hereto as Exhibit D is a copy of the contract between NCI and Kideney.
10. Upon information and belief, Kideney was a sub-consultant to NCI during
the construction of the Burchfield Center.
2 of 8
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INDEX NO . 8 17 9 5 4 / 2 017
(FILED : ERI ! COUNTY CLERK 07 /12 /2018 09 : 51 AM)
11. Upon information and belief, in or about November 1998, a first set of
construction drawings, including a site plan that West Seneca intended to rely on and use
in the construction of the Burchfield Center, were prepared with Kideney's assistance and
provided to West Seneca.
12. Thereafter, upon information and belief, Kideney proceeded to provide
professional landscape architectural services for the Burchfield Center in accordance with
West Seneca's goals, objectives, and expectations and otherwise for the benefit of West
Seneca.
Center dated June 1999. Attached hereto as Exhibit E are copies of the sets of June 1999
14. West Seneca relied on the advice, recommendations, and documents
prepared by Kideney before bidding out the construction of the Burchfield Center.
16. In or about March 11, 2002, West Seneca certified that the Burchfield
ERNSTROM
&DR5srs unusual building damage and structural deterioration at the Burchfield Center.

925 CLINTONSQUARE
ROCHESTER,NY 14604
hung windows, a significant amount of differential wall settlement near window locations,
wood rot at the bottom of the walls of the Burchfield Center, and differential settlement of
the stud walls.
3 of 8
356

INDEX NO. 817954 / 2017
(FILED: ERI COUNTY CLERK 07 /12 /2 018 0 9 : 51 AM)
'
Attached hereto as Exhibit F is a copy of Building Science Services, LLC's April 28, 2017
Review of Conditions and Report of Findings.
22. Upon information and belief and as presently ascertained, the property
damage experienced by the Burchfield Center occurred because Kideney used an improper
elevation in its design of the landscaping surrounding the Burchfield Center and did not
properly follow any plans to properly inspect the Burchfield Center building prior to
building up soil beds that surrounded the perimeter of the building.
23. As a result of the improper design of the Burchfield Center, West Seneca
has suffered direct and consequential damages in a sum which shall be deterrnined by the
Court, but which is believed to exceed $1,772,664.00.
ERNSTROM
&DRySTE 24. West Seneca duly provided notice to Kideney of its claims pursuant to
CPLR 214-d upon discovery of the property damage. Attached hereto as Exhibit G is a
925 CLINTONSQUARE
ROCHESTER,NY 14604
true and complete of West Seneca's Verified Notice of Claim Pursuant to CPLR 214-
copy
d against Kideney, along with the affidavit of service.
25. West Seneca has fully complied with the requirements contained in CPLR
4 of 8
357

IND EX NO. 817954/2017
[FILED : ERI U COUNTY CLERK 07 /12 /2 018 09 : 51 AM)
(Malpractice and Negligence against Kideney)
"1" "25"
27. Upon information and belief, Kideney was retained by NCI to help design
the Burchfield Center for the benefit of West Seneca and to provide all those professional
landscape architectural services necessary to construct and complete the Burchfield Center.
28. Kideney possessed special knowledge and skills as it related to the
professional landscape architectural services it provided West Seneca for the design of the
Burchfield Center.
29. Kideney knew that its professional design services were for the benefit of
the Plaintiff.
30. Kideney knew that its professional skills, its development of the Burchfield
Center, and its final design documents including drawings, plans, and recommendations,
would be used and relied upon by the Plaintiff for the construction of the Burchfield Center
and the surrounding landscape architecture.
3 l. By preparing the design of the Burchfield Center, Kideney impliedly
represented to Plaintiff that it had the reasonable degree of skill usually possessed by a
Eas professional landscape that it was familiar with the construction materials and
rW architect,
practiCCS in Ordinary use in the construction of the Burchfield Center, and that it was
925 CUNTONSOUARE
ROCHESTER,NY 14604
familiar with the various building code provisions governing construction of the Burchfield
Center.
32. In providing its professional landscape architectural services in connection
with the construction of the Burchfield Center, Kideney owed the Plaintiff a duty to use
5 of 8
358

(FILED: ERI M COUNTY CLERK 0 7 /12 /2 018 0 9 : 51 W INDEX NO. 817954/2017
that degree of skill and learning normally possessed and used by a professional landscape
architect in good standing in a similar practice and under like circumstances.
33. Kideney breached its duty to Plaintiff by failing to properly design the
Burchfield Center and the surrpunding landscape architecture.
34. As a direct and proximate result of Kideney's breach of its duty to use that
degree of skill and learning normally possessed and used by a professional landscape
architect in good standing in a similar practice and under like circumstances, in delivering
its professional landscape architectural services, the Plaintiff has suffered direct property
damages to the Burchfield Center in a sum which shall be determined by the Court, but
which is believed to exceed $1,772,664.00.
requests judgment against Kideney Architects, P.C. (f/k/a Kideney Architects, Laping
Jaeger Associates, P.C.), as follows:
a. On its First Cause of Action, judgment in favor of Plaintiff and against Kideney
in an amount which exceeds $1,772,664.00, but which amount will be fully
determined by the Court; and
ERN
925 CLINTONSQUARE
ROCHESTER,NY 14604
6 of 8
359

FILED: ERII: COUNTY CLERK 07 /12 /2 018 0 9 : 51 $ INDEX NO. 817954, 2017
NYSCEF DOC. NC. 8 RECEIVED NYSCEF: 07/12,2018
Dated: July t_, 2018
Rochester, New York ERNSTRO & DRESTE, LLP

925 Clinton Square
(585) 473-3100
JDreste(iped-llp.com
MHolmes@,cd-llp.com
ERN9S
925 CLINTONSQUARE
ROCHESTER,NY 14604
7 of 8
360

(FILED : COUNTY CLERK 07 /12 /2 018 09 : 51 AM|
VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
and my involvement with the Burchfield Center after completion f the P oject.
JONNfÉ 25, ES

/ /
day of Ju , 2018.
ota Public
JACOUELINE A. FELSER
Lic.#01FE4954926
NotaryPublic,Stateof New York
Qualified In Erie County
My Commission Expires August 21, 201
8 of 8
361
EXHIBIT D -
EMAIL COMMUNICATION BETWEEN COUNSEL [361-364]

Hilary Banker
From: Hilary Banker

Sent: Thursday, November 29, 2018 11:16 AM
To: Matthew D. Holmes
Subject: RE: HO-4804 The Town of West Seneca, New York vs. Louis Design Solutions
Architecture, LLC
I personally do not usually include itunless the Judgedirects it. I have no objection to you sending t andasking the
Judge to include though.
Hilary C. Banker | hilary@burgiocurvin.com
Burgio Curvin&Banker
496 Main Street | Buffalo, New York 14202
p: 716.854.1744 | f: 716.854.1749 | www.burgiocurvin.com
This message is being sent by or on behalf

of a lawyer; it is intended for the exclusive use of its intended recipient and may contain
information that is privileged or confidential
or otherwise legally exempt from disclosure. If you are not the intended recipient or an
From: Matthew D. Holmes <MHolmes@ed-llp.com>

Sent: Thursday, November 29, 2018 10:51AM
To: Hilary Banker <hilary@burgiocurvin.com>
Subject: Re: HO-4804 The Town of West Seneca, New York vs. Louis Design Solutions Architecture, LLC
I just got your letter sending the order to the court. Do you have any objection to including the transcript as part of the
proposed order? If not I'll send to the court today to include.
Sent from my iPhone
On Nov 21, 2018, at 3:00 PM, Hilary Banker <hilary@hurgiocurvin.com> wrote:
I'm really not trying to be difficult. I just somewhat anticipate an appeal (?) so I am trying to be as
specific as possible so we don't have a mess at the AD. I agree he did not specifically state it was on SoL
grounds, just that he was granting the motions.
How about this: l'll send both versions to Peter Crotty. Then the Judge can pick which one of the 2 he
wants to sign?
Have a nice Thanksgiving.
Hilary C. Banker hilary@burgiocurvin.com
1
362

<image001.jpg>

This message is being sent by or on behalf of a lawyer; it is intended for the exclusive use of its intended recipient
and may contain information that is privileged or confidential or otherwise legally exempt from disclosure. If you
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above e-mail address.

Sent: Wednesday, November 21, 2018 2:55 PM
Subject: RE: HO-4804 The Town of West Seneca, New York vs. Louis Design Solutions Architecture, LLC
Certainly. You explained all of the reasons why our case should be dismissed in your memos of law that
did not relate to the statute of limitations (i.e. economic loss doctrine). Because there was no actual
verbal or written opinion, I think it is improper to state the reasoning of the Judge in the proposed
order.
You are welcome to send your proposed order to the Judge as long as you note my objection to it.
Have a good weekend,
Matt
From: Hilary Banker [mailto:hilary@burgiocurvin.com]

Except that was the only basis for the motion. Do you think there is another ground upon which he
could have dismissed it?
Hilary C. Banker | hilary_@burgiocurvin.com
<image003.jpg>


2
363


Simply that the Court issued no written or verbal decision and made absolutely no determination at oral
argument that the case would be dismissed on statute of limitations grounds.
From: Hilary Banker [mailto:hilary@burgiocurvin.coml

To: Matthew D. Holmes <MHol_mes@ed-llp.com>
HI Matt, what's the theory behind your change?
Hilary C. Banker | hilary@burgiocurvin.com
<image005.jpg>

From: Matthew D. Holmes <MHolmes@ed-IIp.com>

My comments to your proposed order are attached. Please give me a call with questions.
Have a nice holiday.
Matt
From: Hilary Banker [mailto:hilary@burgiocurvin.coml

Sent: Monday, November 19, 2018 3:19 PM
Subject: HO-4804 The Town of West Seneca, New York vs. Louis Design Solutions Architecture, LLC
Dear Mr. Holmes:
Enclosed herewith please find an Order which I have prepared relative to Justice Glownia's decision in
the above referenced matter.
Please review the Order. If you have any changes, please contact me immediately. If I do not hear from
you by November 23, 2018, I will proceed to submit the Order to Justice Glownia for his signature.
3
364

I await your correspondence with respect to the withdrawal of the motion to amend the Complaint to
add a claim for indemnification.
Very truly yours,
Hilary C. Banker | hilary@bu_rgiocurvin.com
<image008.jpg>
p 716.854.1744 ] f: 716.854.1749 www.burgiocurvin.com
365
EXHIBIT E -
CORRESPONDENCE FROM HILARY BANKER, ESQ. TO COURT,
DATED NOVEMBER 27, 2018 [365-369]

November 27, 2018
Hon. Joseph R. Glownia, J.S.C.

Erie Supreme Court
92 Franklin Street, Part 6
Attn: Peter Crotty, Esq., Confidential Law Clerk
RE: The Town of West Seneca, New York vs. Louis Design Solutions Architecture, LLC
Index No. 815187/2017
Our File No. HO-4804
Dear Mr. Crotty:
Reference is made to Defendant Louis Design's motion to dismiss in the above
referenced matter.
Mr. Holmes and I have had a slight disagreement regarding the form of the Order.
Holmes'
Therefore, I enclose two versions of a proposed Order. Mr. version simply states that
Plaintiff's Complaint is dismissed. My version states that the Plaintiff's Complaint is dismissed
for failure to commence the action within the applicable statute of limitations.
Rather than have a motion to settle the Order or a Pre-Trial Conference, we agreed to
submit both versions to the Judge and of course abide by whichever Order he believes best
reflects his decision in this case.
Once one of the Orders is signed kindly advise and I will have the Order picked up and
filed in the Erie County Clerk's office. If there are any additional changes required, please
advise and I will attend to same.
Thank you for your assistance in this matter.
Ve ,truly yours,
HILARY C. BANKER
HCB/sp
Enclosures
cc: Matthew D. Holmes, Esq.
366


16d'
2018.
PRESENT: HON. JOSEPH R. GLOWNIA, J.S.C.

Justice Presiding
STATE OF NEW YORK

_____________________________________________...
Plaintiff
Index No. 815187/2017

vs.
ORDER & JUDGMENT

Defendant
____________________________________________
Defendant, LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC, by its attorneys,
. BURGIO, CURVIN & BANKER, having moved this Court for an Order pursuant to CPLR R.
321 1(a)(5) dismissing Plaintiff's Complaint on the ground that the action was not commenced
within the applicable statute of limitations, and said motion having been opposed by Plaintiff THE
and
NO W, upon the Notice of Motion of Defendant LOUIS DESIGN SOLUTOINS

367

R.A., sworn to on September 4, 2018, all submitted in support of the aforesaid motion; and
Upon the Affidavit in opposition to motion to dismiss ofMatthew·Ds Holmes, Esq., sworn
SENECA, NEW YORK;
it is further
ORDERED, ADJUDGED AND DECREED, that Plaintiff's Complaint is dismissed for
failure to commence the action within the applicable statute of limitations.
HON. JOSEPH R. GLOWNIA, J.S.C.
ENTER:
368

At a Special Tenn of the Supreme Court, held

16d'
2018.
PRESENT: HON. JOSEPH R. GLOWNIA, J.S.C.

Justice Presiding
STATE OF NEW YORK

___________________________________________________
Plaintiff
Index No. 815187/2017

vs.
ORDER & JUDGMENT

Defendant
______________________________________________________
Defendant, LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC, by its attorneys,
3211(a)(5) dismissing Plaintiff's Complaint on the ground that the action was not commenced
within the applicable statute of limitations, and said motion having been opposed by Plaintiff THE
and
NOW, upon the Notice of Motion of Defendant LOUIS DESIGN SOLUTOINS

369

R.A., sworn to on September 4, 2018, all submitted in support of the aforesaid motion; and
Upon the Affidavit in opposition to motiowtedismiss of Matthew D. Holmes, Esq., sworn
SENECA, NEW YORK;
it is further
ORDERED, ADJUDGED AND DECREED, that Plaintiff's Complaint is dismissed.
HON. JOSEPH R. GLOWNIA, J.S.C.
ENTER:
370
EXHIBIT F -
CORRESPONDENCE FROM MATTHEW HOLMES, ESQ. TO COURT,
DATED NOVEMBER 29, 2018

ERNSTROM
LLP November 29, 2018
925 OLNFON SQ LIARE
VIA FASCIMILE - 845-5161

ROHO 58 73-3 (716)
FAX 585-473-3113
Hon. Joseph R. Glownia

Erie County Supreme Court )(Ù
Part 6 - Third Floor \
92 Franklin Street
Re: The Town of West Seneca, New York v Louis Design Solutions
Architecture, LLC (f/k/a Louis Design Group)

Index No.: 815187/2017
Dear Justice Glownia,
Enclosed please find a copy of the transcript from the November 16, 2018
oral arguments on the motions to dismiss. We respectfully ask that the Court
include this transcript as an attachment to the Proposed Order that counsel for
Louis Design Group previously sent you.
Respectfullý,
Matthew . Holmes, Esq.

MHolmes@ed-llp.com
MDH/heb
Enclosures
cc: Hilary Banker

496 Main Street
www.ERNSTROMDRESTE.COM
371
REPLY AFFIDAVIT OF MATTHEW D. HOLMES IN SUPPORT OF
MOTION TO SETTLE THE RECORD ON APPEAL, DATED APRIL 11, 2019 [371-373]

STATE OF NEW YORK

Plaintiff
-against- REPLY AFFIDAVIT IN
SUPPORT OF
MOTION TO
SETTLE THE
RECORD ON
APPEAL
Index No. 815187/2017

Defendant
STATE OF NEW YORK )
1. I am an associate
attorney
at Ernstrom & Dreste, LLP, attorneys for the Town
Seneca"
of West Seneca ("West or the "Town") As such, I am thoroughly familiar with the
ERNST M
LLP
kds ad dramnmas M hma
Sa²oc a eRL
2. I make this affidavit in support West Seneca's Motion to Settle the Record
on Appeal pursuant to 22 NYCRR §1000.7(b), 22 NYCRR §1250.7(b)(4) and CPLR §5526,
et. seq.
1 of 3
372
3. Defendant does not dispute that the plain language of CPLR § 5526 requires
the Transcript to be included in the Record on Appeal.
4. Defendant does not dispute that Rule 1250.7(b)(4) of the Statewide "Practice
Division"
Rules of the Appellate requires the inclusion of the items set forth in CPLR §
5526, including the corrected transcript.
5. Defendant does not dispute Fourth Department case law holding that a record
on appeal must include any relevant transcripts of proceedings before the court.
6. Defendant does not rely on any case law or statute to support its arguments
that the Transcript and the Uniform Memorandum of Law are improperly included in the
Record on Appeal.
7. Every other argument made by Defendant is an attempt to obfuscate the fact
that the CPLR, Statewide Appellate Rules, and case law requires the inclusion of the
Transcript.
7. With respect to the Memoranda of Law submitted in the Record on Appeal,
as this Court is well aware, Plaintiff, as the Appellant, has the burden to establish a proper
and complete Record on Appeal and to make the Appellate Division aware of all issues that
were presented before the Court and preserved on Appeal.
8. The Uniform Memorandum of Law, akin to the Memorandum of Law
Elmsa Ê submitted by Defendant, each state that they are included for "purposes of determining
Only."
preSerVatiOn
They are not being offered as evidence and as such are proper.
925 CLINTON SQUARE
ROCHESTER, NY 14604
9. If Defendant's argument in support of precluding the Uniform
Memorandum of Law was to be accepted as true, then portions of Defendant's very own
Affidavit in Support of its Motion to Dismiss, including Paragraphs 3, 5, 6, 7, 8, 9, and 10
2 of 3
373
must also be excluded, because they clearly

contain the legal argument of Defendant's
counsel (See Holmes Aff. Exhibit 3, p. 11-15).
10. Defendant cannot preclude Plaintiff's ability to present issues for
determination of preservation on Appeal when it offers its own legal arguments in its own
Affidavit in Support of the Motion to Dismiss.
11. If the Court were to deny the relief requested by Plaintiff, Plaintiff would be
unduly prejudiced in this Appeal because the Appellate Division, Fourth Department, would
be unable to conduct meaningful appellate review

th
11 day of April, 2019
otar
JUDY MARTIN
Public, State of New York
Notary
- No. 01MA6260307
Monroe County
Commission Expires April 30, 20s a
ERNSTROM
&D115sre
925 CLINTON SQUARE

ROCHESTER, NY 14604
3 of 3
374
CERTIFICATION PURSUANT TO CPLR 2105
I, Mathew D. Holmes, Esq., an attorney with the firm ofErnstrom & Dreste,
LLP, attorneys for the Plaintiff-Appellant, hereby certify pursuant to Section 2105
of the CPLR that the foregoing papers constituting the Record on Appeal have
been personally compared by me with the originals filed herein and have been
found to be true and complete copies of said originals and the whole thereof, all of
which are now on file in the office of the Clerk of the County of Erie.
Dated: August

CA 19-00850 Town of West Seneca - v. - Louis Design Solutions Architecture, LLC.

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FILED: APPELLATE DIVISION - 4TH DEPT 08/15/2019 08:54 AM CA 19-00850

NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/15/2019

New York Supreme Court

LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

CONSOLIDATED RECORD ON APPEAL

ERNSTROM & DRESTE, LLP

BURGIO, CURVIN & BANKER

Erie County Clerk’s Index No. 815187/2017

STATE OF NEW YORK

THE TOWN OF WEST SENECA, NEW YORK,

Index No. 815187/2017

LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

STATEMENT PURSUANT TO CPLR 5531

1. The action (the “Action”) is identified by Index Number 815187/2017.

Design Group) (“Louis Design”).

Summons and Complaint with the Erie County Clerk’s Office.

7. This appeal is from a series of Orders of the Hon. Joseph R. Glowina,

8. This appeal is on a full printed record.

STATE OF NEW YORK

THE TOWN OF WEST SENECA, NEW YORK,

-against- NOTICE OF APPEAL

LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

at 92 Franklin Street, Buffalo, New York 14202, on November 16, 2018.

INDEX NO. 815187/2017

NYSCEF DOC . NC 75 RECEIVED NYSCEF: 05/07/ 2019

DATED: May 2019

Rochester, New York

ERNSTRO DRESTE, LLP

John W. Dreste, Esq.

Rochester, New York 14604

TO: Hilary C. Banker, Esq.

Burgio, Curvin & Banker

Buffalo, New York 14202

INDEX NO. 815187/2017

STATE OF NEW YORK

THE TOWN OF WEST SENECA, NEW YORK, AFFIDAVIT OF

Index No. 815187/2017

LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

STATE OF NEW YORK )

Hilary C. Banker, Esq.

Burgio, Curvin & Banker

Buffalo, New York 14202

: sERIE COUNTY CLERK INDEX NO. 815187/2017

NYSCEF DOC. NC 69 RECEIVED NYSCEF: 04/22/2019

At a Special Tenu of the Supreme Court,

PRESENT: HON. JOSEPH R. G_LOWNIA, J.S.C.

$TATE OF NEW YORK

THE TOWN OF WEST SENECA, NEW YORK

LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

Defendant, LOUIS DESIGN SOLUTIONS ARCnlTECTURE, LLC, by its attorneys,

DRESTE, LLP; and

NOW, upon the Notice of Motion of Dafcadañt LOUIS DESIGN SOLUTIÒNS

ARCNITECT.URE, LLC, dated September 4, 2018, the Afnrmation. of Hilary C.Banker,

INDEX NO. 815187/2017

thereto, all snhmitted in opposition to the áferesaid motion; and

counsel in support of the motion on behalf of D fdadant LOÚIS .DESIGN SOLOTIONS

ARCHITECTURE, LLC; upon hearing ERNSTRUM & DRESTE, LLP, Matthew D.

WEST SENECA, NEW YORk;

AND, after having due deliberation-upon the matters, it-is hereby

ADJUDGED AND DEUREED, that the, motion on behalf of Defepdard

LODIS DE51GN SOLUTIONS ARCHITECTURE, LLC, is hereby gi anted in its entirety;

OttDERED, ADJUDGED AND DECREED, that upon fui·ther considërstion, pursuant

INDEX NO. 815187/2017

applicable stattite of limitations. .