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United States Court of Appeals for the Second Circuit
June 11, 1992, Argued ; January 14, 1993, Decided
Docket No. 92-7140
[*1178] CARDAMONE, Circuit Judge:
On this [**2] appeal we are called upon to apply New York's law of privity, familiar to lawyers from Chief Judge Cardozo's memorable phrase: "The assault upon the citadel of privity is proceeding in these days apace." Ultramares Corp. v. Touche, 255 N.Y. 170, 180, 174 N.E. 441 (1931). That case involved plaintiff's attempt to hold defendant liable for words negligently spoken. In this suit by contractors, working from plans prepared for the state dormitory authority, against the architects who prepared them, we also must construe the contract documents. The record before us reveals a bungling bureaucracy that approved bid plans that had obviously been prepared in a slipshod manner. The bureaucracy's--in this case the state dormitory authority--contrary opinion that the plans would do became its dogmatic ruling to that effect, which set the stage for the litigation presently before us.
We set forth those facts relevant to the resolution of the issues on appeal. The Dormitory Authority of the State of New York is a public benefit corporation that provides financing for construction of new facilities for the City University of New York (CUNY). In November 1985 it engaged [**3] The Gruzen Partnership, Architects, Planners and later its successor firm, Gruzen Samton Steinglass, (Gruzen or the architects) to design a Marine Academic Center at the Kingsborough Community College in Brooklyn, New York. Gruzen was asked to provide architectural services during the design and construction phases of the project, and also to prepare contract documents for construction of the project that the authority could distribute to prospective bidders. The architects were required to respond to questions posed by bidders regarding these project documents.
The architects retained several consulting firms to aid them in designing certain elements of the project. One was Ewell W. Finley, P.C., who was to put together the structural engineering design. Gruzen together with its consultants spent almost two years in design work and prepared more than 150 drawings and a massive book of specifications. In June 1987 when construction documents were 60 percent complete, the dormitory authority's internal design review board as well as CUNY staff architects and engineers reviewed the submitted designs, in which they found major defects. For example, the architects' design showed the [**4] project's roof was to be sloped; the structural plan failed to correspond and did not include such slope. When these inconsistencies were pointed out to Gruzen and Finley, they said the errors would be corrected.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
983 F.2d 1176 *; 1993 U.S. App. LEXIS 598 **
WILLIAMS AND SONS ERECTORS, INC., Plaintiff, v. SOUTH CAROLINA STEEL CORPORATION, Defendant. SOUTH CAROLINA STEEL CORPORATION, Third-Party-Plaintiff, v. MARS ASSOCIATES, INC.; NORMEL CONSTRUCTION CORPORATION; and FEDERAL INSURANCE COMPANY, Third-Party-Defendants. MARS ASSOCIATES, INC.; NORMEL CONSTRUCTION CORPORATION; and FEDERAL INSURANCE COMPANY, Fourth-Party-Plaintiffs-Appellants, v. THE DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Fourth-Party-Defendant-Appellee. THE DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Fifth-Party-Plaintiff-Appellee, v. THE GRUZEN PARTNERSHIP, ARCHITECTS, PLANNERS; and GRUZEN SAMTON STEINGLASS, Fifth-Party-Defendants-Appellees. THE GRUZEN PARTNERSHIP, ARCHITECTS, PLANNERS; and GRUZEN SAMTON STEINGLASS, Sixth-Party-Plaintiff-Appellee, v. EWELL W. FINLEY, P.C., Sixth-Party-Defendant.
Prior History: [**1] Appellants Mars Associates, Incorporated, Normel Construction Corporation, and Federal Insurance Company appeal from the October 9, 1990 order of the United States District Court for the Eastern District of New York (Wexler, J.) dismissing their cross-claim for negligent misrepresentation against The Gruzen Partnership, Architects, Planners, and Gruzen Samton Steinglass (its successor) and from the district court's October 28, 1991 order (Jordan, M.J.) granting partial summary judgment to the Dormitory Authority of the State of New York.
Disposition: Affirmed in part, reversed in part, and remanded.
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