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ARTICLE ID 34031

$________ - ENGINEERING MALPRACTICE - DEFENDANT p73 HIRED BY PLAINTIFF TO PROVIDE ENGINEERING AND SURVEYING SERVICES IN CONNECTION WITH PROPOSED SUBDIVISION OF PROPERTY - FAILURE OF DESIGN PLAN TO ALIGN NEW SANITARY SEWER WITH EXISTING SEWER - FAILURE TO CORRECT ERROR - COMPENSATORY DAMAGES AND LOST PROFITS IN CONNECTION WITH SALE OF LOTS AND HOMES - FURTHER MOTIONS PENDING.

Erie County

The plaintiff, Thomas Tasseff, owned a parcel of land in the town of Hamburg. On February 29, ________, the plaintiff entered into a contract with the defendant whereby the defendant would provide engineering and surveying services to the plaintiff for a proposed subdivision of his property with the anticipated goal of building and selling private homes. The defendant was to be paid $________ as compensation for its services. The services the defendant was to provide included the grading, designing, layout and approvals for the subdivision prior to and including construction. Thereafter, the plaintiff Tasseff conveyed the property to the plaintiff Tasseff Terrace Homes, Inc., of which Tasseff was the sole director, officer and shareholder. After the defendant completed the design plans, a development company began construction. During the construction, the development company discovered that the new sanitary sewer could not be aligned with the existing sanitary sewer because of a five foot difference in the height of the pipes. The defendant implemented a corrective plan whereby the road would be raised by five feet so that the sewers could be aligned.

The defendant explained that this could be accomplished by using ________ cubic yards of fill to raise the road. The plaintiff realized after this corrective plan had begun and after expending a substantial amount of money implementing the plan that this would be an unreasonably expensive route to take. The plaintiff retained the services of a different professional engineer to assess the situation. That professional engineer, Richard San Giacomo, advised the plaintiffs that the defendant’s original design plan did not accommodate the difference in the height of the new and existing sanitary sewers and that there would have been a less costly way to rectify the problem than that proposed by the defendant. The plaintiffs sued the defendant for malpractice, breach of contract, and fraud in its representation that it would cure all deficiencies in its design and other engineering and surveying services.

The defendant denied that it had performed an improper design and contended that the area where the problem arose could not be redesigned because the town planning board would not allow it. Both parties moved for summary judgment. The court dismissed the plaintiffs’ claims for breach of contract because the claims were duplicative of those for malpractice and for fraud, because the relief sought was the same as that sought for the malpractice. The Appellate Division reversed a decision of the Supreme Court which dismissed the action by the plaintiff Tasseff Terrace Homes. The Appellate Division held that there was a triable issue of fact as to whether Tasseff Terrace Homes was the intended beneficiary of the contract between Tasseff and the defendant. As support for the plaintiff’s argument that the corporation was the intended beneficiary of the contract, the court cited the facts that the corporation had made all payments on the contract and that the performance by the defendant was clearly for the benefit of the corporation which by then was the sole owner of the property.

An expert engineer and Richard San Giacomo testified on the plaintiffs’ behalf that the defendant had committed engineering malpractice, both p 7 3 in design and in its proposed corrective actions. The president of the defendant corporation testified that it could not have redesigned the problem area because the town planning board would not allow it.

He asserted that he had a letter from the planning board which stated as much, but he was unable to produce the letter. The defendant’s engineering expert testified that the way the defendant had designed the layout of the new sewers was the only way it could have been done.

The parties introduced photographs of the site and the plaintiff introduced a half-hour video which showed flooding caused by the defendant’s design.

The trial lasted ten days. After deliberating for two hours, the jury returned a verdict finding the defendant liable for engineering malpractice.

It awarded the plaintiff $________, of which $________ was for compensatory damages and $________ was for lost profits on the sale of lots and homes. The defendant has moved to set aside the verdict. The plaintiff cross-motioned to seek interest for the past five years.

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