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Morris v. Attia3/15/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
In this wrongful death action, Defendant Eli Attia ("Attia") moves to dismiss the complaint or, in the alternative, for summary judgment. Plaintiff Diane Morris, as Personal Representative of the Estate of Brian Morris ("the Estate") cross-moves pursuant to CPLR § 602 (a) for an order consolidating the matter with a related one pending before another justice of this Court.
For the reasons set forth below, Attia's motion is denied, and the Estate's cross-motion is granted.
Background
In May 2001, Brian Morris ("Morris"), the deceased husband of Diane Morris and an apparently well-compensated British executive transferred to New York by his employer, rented a duplex apartment comprising the fourth and fifth floors of a building located on East 67th Street in Manhattan. At the rear of the fourth floor were two seven foot, five inch high sliding glass windows that flanked a picture window. (The parties dispute whether they should be referred to as doors or windows). The windows stood upon a riser that ran the length of the back wall, which the Estate's expert measured at 18 inches high and 29 inches deep. Significantly, these windows opened directly to the outside of the building, as there was no balcony, nor were there any protective measures in place to prevent them from opening to their full 29 inch width.
In the early morning hours of August 3, 2001, Morris fell through one of the open windows and plunged to his death on the concrete patio below. The Estate contends that opening the windows required an unreasonable amount of force, so that in opening one while standing on the polished wood riser, Morris slid and accidently fell out of the window.
Pursuant to a June 18, 1979 agreement, Attia, a licensed architect, designed the building in question along with ten other contiguous townhouses on the same block. Then, on August 5, 1987, he contracted by letter with Sheldon Solow, owner of the buildings, to convert two of the townhouses, including that which Morris rented, "from single family to two-family buildings," including design of the window from which Morris fell. The second agreement incorporated the terms of the first.
Specifically, section 1.5.4 of the original contract states:
The Architect shall visit the site at intervals appropriate to the state of construction or as otherwise agreed by the Architect in writing to become generally familiar with the progress and quality of the Work and to determine in general if the Work is proceeding in Accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.
Attia contends that he designed the windows to include a stopping mechanism to prevent them from opening more than 4.5 inches and a safety bar to prevent an individual from falling out; he alleges that both devices were intended to be used together to provide additional protection. The plans he submits in support of his motion are not easily read, and the court cannot glean from them whether they call for either protective measure.
In his reply affidavit to the current motion, Attia contradicts himself and argues that a window subcontractor, Thermal Insulated Products ("Thermal"), was responsible for design of the windows and the stopping device. He refers to the provision of a subcontract, at Rider 2, paragraph 105, dated October 4, 1988, between Thermal and contractor E. 67th
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