INDEX NO.

453138/2015

FILED: NEW YORK COUNTY CLERK 11/27/2015 02:43 PM

NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 11/27/2015

SUPREME COURT OF THE STATE OF NEV/ YORK

COUNTY OF NEW YORK

BROOKLYN BRIDGE PARK CORPORATION,

Index No

Plaintiff,
V

SUMMONS

MICHAEL VAN VALKENBURGH ASSOCIATESO

LANDSCAPE ARCHITECTS, P.C., HNTB
CORPORATION, HNTB NE\ry YORK ENGINEERING
AND ARCHITECTURE, P.C.

Date filed

Defendants.
X

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

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

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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BROOKLYN BRIDGE PARK CORPORATION,
Plaintiff,
v.

VERIFIED COMPLAINT
Index No. _____________/2015
Filed:________________, 2015

MICHAEL VAN VALKENBURGH ASSOCIATES,

LANDSCAPE ARCHITECTS, P.C., HNTB
CORPORATION, HNTB NEW YORK ENGINEERING
AND ARCHITECTURE, P.C.
Defendants.
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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.

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 nancially 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

18.

BBP reasonably relied upon HNTBs designs and actions.

BBP.

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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 (43.8
m/s0. This wind speed is based on local wind climate with annual
probability 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

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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

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

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

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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

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

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

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

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(d)

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

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

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

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

Dated:

(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.

New York, New York

November 25, 2015
ZACHARY W. 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
(212) 356-2033
By:

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/s/ Alan H. Kleinman

Alan H. Kleinman
Assistant Corporation Counsel

VERIT''ICATION
STATE OF NEW

coLNTY

OF

YORK )

KINGS

ss.,

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

information and belief, she believss to be true;

ancl thnt the basis

and records of the plaintff and/or statemonts mnde to hcr by

upon

of hcr knowleclge is the books

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

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