OS Obtains Pre-Answer Dismissal for Structural Engineer in Construction Defect Litigation

November 7, 2022

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It is common for defendants in construction defect litigation to join or “third party” contractors, subcontractors, or design professionals under theories of indemnification and contribution. The unfortunate truth is that targets of this third-party practice often have no involvement in the defects at issue. Last week, OS attorneys Anthony Capasso and Brant Forrest secured a pre-answer dismissal in the Supreme Court of the State of New York, Westchester County, on behalf of a structural engineer that had no involvement in the design or construction of the defects at issue.

On October 27, 2022, the Honorable David S. Zuckerman ordered the dismissal of a third-party complaint based on the Espinal doctrine. Specifically, the plaintiff filed suit against a contractor, claiming that the contractor failed to properly test and inspect a fire sprinkler and suppression systems at Port Chester High School, which led to water damage. The defendant-contractor, who performed the testing and inspection, joined multiple parties as third-party defendants, including a structural engineer, under theories of indemnification and contribution.

OS demanded that the defendant-contractor withdraw the third-party complaint, alleging it was frivolous because the structural engineer was not involved in the design, installation, or inspection of the fire sprinkler and suppression systems, and the claims were barred by the Espinal doctrine (see Espinal v. Melville Snow Contractors, Inc., 97 N.Y.2d 136 (2002)). The contractor refused to withdraw the complaint, citing the need for discovery and potential theories of structural components being the cause for damages.

OS filed a motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(1), (3), and (7). The court held that the documentary evidence demonstrated two things. First, the structural engineer was not involved in design, installation, or testing of fire protection or suppression systems. Second, the structural engineer’s services related to designing a gymnasium, classroom, and vault, whereas the alleged property damage was in a different location of the school.

Next, the court analyzed whether the Espinal doctrine precluded common law indemnification and contribution claims. The court noted that the third-party complaint failed to allege any Espinal exceptions. Therefore, the defendant-contractor could not assert that the structural engineer owed a duty to plaintiff or the defendant-contractor to warrant common law indemnification or contribution.

The decision by Judge Zuckerman is yet another example of the importance of having a sound factual and legal basis for third-party claims in construction defect litigation and the court’s reluctance to allow parties to join anyone involved in a construction project. The courts have made clear that third-party plaintiffs cannot cite the need for discovery or speculative theories for third-party claims to survive dismissal if there is no nexus to the underlying defect claims. The refusal to withdraw claims in the face of evidence or contradicting legal theories, such as the Espinal doctrine, may subject pleadings to immediate dismissal and potential sanctions.


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