Brooklyn Bridge Park Lawsuit

7/23/2019 Brooklyn Bridge Park Lawsuit

1/13

SUPREME

COURT OF

THE STATE

OF

NEV/

YORK

COUNTY

OF NEW

YORK

BROOKLYN

BRIDGE

PARK

CORPORATION

Plaintiff

x

Index

No

V

SUMMONS

MICHAEL

VAN VALKENBURGH

ASSOCIATESO

LANDSCAPE

ARCHITECTS

P.C.

HNTB

CORPORATION

HNTB

NE\ry

YORK

ENGINEERING

AND

ARCHITECTURE

P.C.

Defendants.

Date filed

YOU ARE

HEREBY SUMMONED

and

required

to

serve upon

Plaintiffls

attorney an

answer

to

the

Complaint

in this

action

within

twenty days

after the service

of

this

summons

exclusive

of

the day

of service

or

within thirty

days

after service

is complete

if

this

summons

is not

personally

delivered

to

you

within

the

State

of New

York.

In

case

of

your

failure

to

answer

judgment

will

be

taken

against

you

by default

for

the

relief demanded

in

the

complaint.

[This

space is

intentionatty

left blank.J

X

ILED: NEW YORK COUNTY CLERK 11/27/2015 02:43 PM INDEX NO. 453138/

YSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/27/


2/13

Plaintiffls

designation

of venue accords

with CPLR 503(a)

in

that

one

or more of

the

parties

reside

in New York County.

Dated:

New York, New

York

November

27,2015

ZACHARY V.

CARTER

Corporation

Counsel

of

the

City

of

New

York

Attorney

for

Plaintiff

Brooklyn Bridge

Park Corporation

100

Church

Street,

Rm.

20-100

New York, New

York 10007

(2rz)

356

2033

By:

Alan

H

Assi

stant

Corporation Counsel

To:

Michael Van Valkenburgh

Associates, Landscape

Architects,

P.C.

l6

Court

Street, I lth

Floor

Brooklyn,

New

York

ll24l

HNTB

Corp.

350 5th

Ave., 57th Floor

New

York, NY 101l8

HNTB

New York

Engineering and

Architecture,

P.C.

5 Penn Plaza,6th

Floor

New

York,

New

York

10001

2


3/13

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK----------------------------------------------------------------------- x

VERIFIED COMPLAINT

Index No. _____________/2015

Filed:________________, 2015

BROOKLYN BRIDGE PARK CORPORATION,

Plaintiff,

v.

MICHAEL VAN VALKENBURGH ASSOCIATES,LANDSCAPE ARCHITECTS, P.C., HNTBCORPORATION, HNTB NEW YORK ENGINEERINGAND ARCHITECTURE, P.C.

Defendants.

----------------------------------------------------------------------- x

Plaintiff BROOKLYN BRIDGE PARK CORPORATION (BBP) by its attorney

Zachary W. Carter, Corporation Counsel of the City of New York, for its complaint against

defendants Michael Van Valkenburgh Associates, Landscape Architects, P.C. (MVVA), and

HNTB Corporation and HNTB New York Engineering and Architecture, P.C. (collectively

HNTB), respectfully alleges upon personal knowledge as to itself and upon information and

belief as to all other matters, as follows:

PRELIMINARY STATEMENT

1. This action is brought to recover damages suffered by BBP as a result of

defective design and construction supervision by MVVA and HNTB in connection with the

construction of light poles and shade sail structures (together, the Shade Sail Structures) at Pier

5 of Brooklyn Bridge Park (the Park).

2. BBP contracted with MVVA to design the Park, including the

construction of the Shade Sail Structures at Pier 5 of the Park.


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3. MVVA in turn subcontracted with HNTB to design the Shade Sail

Structures and perform related services.

4. The defendants agreed to produce a design that was capable of

withstanding foreseeable wind conditions of 100 miles per hour or more. But the design proved

incapable of withstanding even much lower winds. As a result of the defective design, the Shade

Sail Structures suffered widespread failure under wind conditions far less taxing than those set

forth in the design parameters. As a result of MVVAs and HNTBs contractual and professional

failures, the Shade Sail Structures had to be substantially redesigned and rebuilt, at great cost to

BBP. This action seeks to recover these costs.

THE PARTIES

5. Plaintiff BBP is a not-for-profit corporation duly organized and existing

under the laws of the State of New York, with its principal place of business at 334 Furman

Street, Brooklyn, New York 11201.

6. BBP is responsible for the planning, construction, maintenance and

operation of Brooklyn Bridge Park, an 85-acre sustainable waterfront park stretching 1.3 miles

along Brooklyns East River shoreline. BBPs mission is to create and maintain a world-class

park that is a recreational, environmental and cultural destination enjoyed by the residents of, and

visitors to, New York City. BBP operates under a mandate to be financially self-sustaining.

7. Defendant Michael Van Valkenburgh Associates, Landscape Architects,

P.C. is a limited liability partnership organized and existing under the laws of the State of New

York, with an office at 16 Court Street, 11th Floor, Brooklyn, New York 11241. MVVA is a

licensed architectural firm holding itself out to the general public as being possessed of the skill,

expertise, and knowledge of that profession.


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8. Defendant HNTB Corp. is a corporation organized and existing under the

laws of the State of Delaware, with an office at 350 5th Ave., 57th Floor

New York, NY 10118. HNTB is a engineering firm holding itself out to the general public as

being possessed of the skill, expertise, and knowledge of that profession.

9. Defendant HNTB New York Engineering and Architecture, P.C. is a

professional corporation organized and existing under the laws of the State of New York, with an

office at 5 Penn Plaza, 6th Floor, New York, New York 10001. HNTB is an engineering firm

holding itself out to the general public as being possessed of the skill, expertise, and knowledge

of that profession.

FACTS

THE CONTRACT AND SUBCONTRACT

10.

BBP has been converting abandoned piers along the East River to provide

recreation facilities for neighborhoods that previously had little outdoor recreation space. Pier 5

was converted to a playing field. BBP decided that Park users would benefit from shade on the

playing field.

11. BBP had an ongoing contract with MVVA, dated February 3, 2004 (the

Contract), which provided design, engineering and construction administration services for the

Park. BBP asked MVVA to design and oversee the construction of overhead lighting and

subsequently asked it to modify the design to provide shade on the Pier 5 playing field. Under

the Fifth Amendment to the contract, MVVA and its subcontractors were to provide not only

design but also construction administration services.

12. MVVA in turn entered into a subcontract with HNTB on July 11, 2011

(the Subcontract). Pursuant to the Subcontract, HNTB was responsible for the initial design,


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the incorporation of comments during a design development period, and construction

administration services that included attending site meetings, review of contractor submittals,

and responding to contractor Requests for Information.

13. In entering into the Contract and its amendments with MVVA, BBP relied

on MVVAs skill, expertise, and knowledge as a licensed architect. Implied in the Contract was

MVVAs obligation to, at a minimum, perform its duties with the reasonable skill and care

expected of the architectural profession, and in accordance with generally accepted design

practices.

14.

In approving the Subcontract with MVVA, BBP relied on HNTBs skill,

expertise, and knowledge as a licensed engineer. Implied in the Subcontract was HNTBs

obligation to, at a minimum, perform its duties with the reasonable skill and care expected of the

engineering profession, and in accordance with generally accepted design practices.

PARTIES NEGOTIATION OF THE SHADE SAIL DESIGN

15. BBP told both MVVA and HNTB that it would like to provide some shade

for the playing fields on Pier 5, but that it had a limited budget to do so. The playing field was

exposed to winds coming off the Upper Harbor and East River.

16.

BBP had repeated meetings and communications with MVVA and HNTB

concerning the design and construction of the Shade Sail Structures. At these meetings, BBP,

MVVA and HNTB repeatedly discussed the need to produce a design that was capable of

withstanding foreseeable wind conditions of 100 miles per hour or more.

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

BBP.

18. BBP reasonably relied upon HNTBs designs and actions.


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

20. BBP accepted HNTBs design proposal.

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

are spelled out on HNTBs drawing SH1, Structural Notes. The drawing explicitly calls for a

design wind speed of 100 miles per hour. The drawing references ASCE 7-05, Minimum

Design Loads for Buildings and Other Structures for the calculation of wind and other

environmental loads. ACSE 7-05 lists basic wind speeds along coastal New York City of

between 100 and 110 miles per hour.

22.

The 100 mile per hour load requirement is essentially restated in the Citys

Building Code. New York City Administrative Code, Title 28, 1609.3 states:

The basic wind speed for New York City which is measured at 33 feet(10.058 mm) above ground as 3-second gust speed is 98 mph (43.8m/s0. This wind speed is based on local wind climate with annualprobability of 0.02 (50-year mean recurrence interval).

MALFUNCTION OF THE SHADE SAILS

23. Following installation of the Shade Sails, the Park area containing the

Shade Sails was opened to the public on or about December 13, 2012.

24. On December 21, 2012, less than a month after the Shade Sails were

installed, wind gusts of less than 75 miles per hour caused extensive damage to light poles and

shade elements of the Shade Sail Structures along the north side of Pier 5. The damage included,

but was not limited to, sheared connection bolts, broken fixtures, bent and snapped support rods,

broken fixture arms and torn shades.

25. The damage to the Shade Sail Structures endangered the public, which

was threatened by falling components of the Shade Sail Structures.


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26. As a result of the damage, BBP had to cordon off Pier 5 from the public

and remove dangling components on an emergency basis.

PEER REVIEW AND RETROFIT OF THE SHADE SAILS DESIGN

27. Following the malfunction of the Shade Sails, BBP engaged Ove Arup &

Partners P.C. (Arup) to conduct a Structural Peer Review of the Shade Sails design.

28. Arup finalized its Structural Peer Review and issued its Peer Review

Report on November 19, 2013. In the Report, Arup concluded that there were fundamental flaws

in HNTBs design of the Shade Sails. Specifically, Arup concluded that the tie rods, the light

poles, base plate and reinforced concrete foundations were each inadequate as a matter of design

to withstand 100 mile per hour winds.

29. To date, HNTB has never provided any analysis to dispute Arups Peer

Report or to otherwise show that its initial design was proper.

30. However, when asked to fix the damage to the Shade Sails, HNTB no

longer stood behind its own original design and instead submitted on March 7, 2013 a

significantly changed design (the Retrofit Design).

31. BBP, HNTB and Arup met multiple times to review and revise HNTBs

Retrofit Design. The final version of the Retrofit Design was approved on April 15, 2013.

32. Construction and installation of the Retrofit Design Shade Sails was

completed on July 26, 2013.

33. BBPs damages include the costs of removal of the failed Shade Sail

Structure and the redesign and installation of a new structure that now meets the initial

specification that the structure be capable of withstanding wind conditions of 100 miles per hour

or more. It also includes additional losses incurred by BBP, including the diversion of its staff to


9/13

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oversee the additional work created and the resulting loss of its ability to afford the use of the

playing field at Pier 5 to the public.

FIRST CAUSE OF ACTION (AGAINST MVVA)

(Breach of Contract)

34. As described above, pursuant to the Contract, MVVA was responsible for

the feasibility analysis, design, and construction support services for the Shade Sail Structures.

35. MVVA was required to perform the Contract with the skill and care

expected of the landscape architectural profession, and in accordance with generally accepted

design principles.

36. Pursuant to the contract, MVVAs design was also required to comply

with BBPs Design Requirements.

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

breached the terms and conditions of the Contract by reason of its deficient design, as described

above, as well as by failing to ensure that the Shade Sail Structures were constructed in

accordance with the construction documents, all of which resulted in defects in the Shade Sail

Structures requiring their removal and replacement.

38. As a direct result of MVVAs aforesaid breaches of the contract, BBP has

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

SECOND CAUSE OF ACTION (AGAINST MVVA)

(Professional Malpractice)

39. By undertaking the design and construction supervision of the Shade Sail

Structures, MVVA assumed a duty to BBP to perform the work in accordance with the

professional standards expected of a licensed landscape architect.


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40. MVVA was careless, failed to use reasonable and customary care,

departed from accepted practice, and failed to perform services in accordance with professional

standards, and therefore committed professional malpractice in its design and in its construction

supervision of the Shade Sail Structures.

41. As a direct result of MVVAs aforesaid professional malpractice, BBP has


THIRD CAUSE OF ACTION (AGAINST HNTB)

(Breach of Third Party Contract)

42. Pursuant to its Subcontract, HNTB was responsible for the design and

some construction administration services for the Shade Sail Structures and was required to

comply with all applicable requirements of the Subcontract.

43. BBP was an intended beneficiary of the Subcontract.

44. BBP reasonably relied upon HNTBs designs and actions.

45. HNTB breached the Subcontract by failing to exercise due care in its

performance, and breached its terms and conditions by reason of its deficient design, and by

failing to ensure during construction that the Shade Sail Structures were constructed according to

the design plans and that any modifications in the plans did not compromise the structural

integrity of the Shade Sail Structures.

46. As a direct result of HNTBs breaches of the Subcontract, the City has



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FOURTH CAUSE OF ACTION (AGAINST HNTB)

(Professional Malpractice)

47. By undertaking the design and construction supervision of the Shade Sail

Structures, HNTB assumed a duty to BBP to perform the work in accordance with the

professional standards expected of a licensed engineer.

48.

HNTB was careless, failed to use reasonable and customary care, departed

from accepted practice, and failed to perform services in accordance with professional standards,

and therefore committed professional malpractice in its design and in construction supervision

services of the Shade Sail Structures.

49.

As a direct result of HNTBs professional malpractice, BBP has been

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

FIFTH CAUSE OF ACTION (AGAINST HNTB)

(Negligent Misrepresentation)

50. HNTB negligently misrepresented to BBP that its design would be able to

withstand winds up to 100 miles per hour.

51.

As a direct result of HNTBs misrepresentations, BBP has been damaged in

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

WHEREFORE, plaintiff BBP demands judgment against defendants as follows:

(a) On the First Cause of Action, against MVVA, in an amount to be

determined at trial, but not less than $1,294,931, with pre-judgment interest;

(b) On the Second Cause of Action, against MVVA, in an amount to be


(c) On the Third Cause of Action, against HNTB, in an amount to be



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(d) On the Fourth Cause of Action, against HNTB, in an amount to be


(e) On the Fifth Cause of Action, against HNTB, in an amount to be


(f) Together with the costs and disbursements of this action; and

(g) For such other and further relief as the Court deems just and proper.

Dated: New York, New YorkNovember 25, 2015

ZACHARY W. CARTERCorporation Counsel of theCity of New YorkAttorney for Plaintiff Brooklyn Bridge Park

Corporation100 Church Street, Rm. 20-100New York, New York 10007(212) 356-2033

By: /s/ Alan H. Kleinman

Alan H. KleinmanAssistant Corporation Counsel


13/13

VERIT''ICATION

STATE OF

NEW

YORK

)

,

ss.,

coLNTY

OF

KINGS

)

Patricia Kirshner,

being

cluty sworn,

says

that she

is

Vice

Prcsidcnt,

Capital

planning

& Consuuction

of

BROOKLYN

BRIDGE

PARK

CORPORATION;

thatBROOKLYN

BRIDOE

PARK

COIfOILATION

is plaintiff

in

the

within

action;

that

the allegations

in the

Complaint

as

to

plaintiff

are

truc

io

her knowledge;

that

the

matters

allcged

therein

upon

information

and

belief,

she

believss

to

be

true;

ancl

thnt

the basis

of

hcr

knowleclge

is

the books

and records

of

the

plaintff

and/or

statemonts

mnde

to

hcr

by otti'*'1ro' tt#fJftlT*u r

lrtiu

verification

is

nor made by

BROOKLYN

BRIDOE

PARK

CORPOR A,TTON

bocause

it

is

a

not'

for-

profit

c orp

oration.

Swom

to before mc

this

zftav

of

November,

20

I

5'

NOTARYPUBLIC

::$m*u'i

-

l1-

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Brooklyn Bridge Park Lawsuit

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