NYS Thruway Auth. v. CHA Consulting Inc.

This action arises from a construction project undertaken by the New York State Thruway Authority (“NYSTA”) to install wind turbine generators at five sites in Western New York (“Project”). The Project was completed in 2015, but the four wind turbines manufactured by defendant Vergnet S.A (“Vergnet”) did not function properly and became unusable by 2018.¹ NYSTA commenced this action to recover the sum of $8,482,040, representing the cost of the failed Vergnet turbines, together with collection fee of 22 percent under State Finance Law (“SFL”) §18. NYSTA seeks this recovery from five defendants: (1) CHA Consulting, Inc. (“CHA”), which served as NYSTA’s design engineer; (2) Kandey Co., Inc. (“Kandey”), the prime contractor; (3) Vergnet; (4) Prudent Engineering, LLP (“Prudent”), which served as an on-site inspection engineer; and (5) Ravi Engineering and Land Surveying, P.C. (“Ravi”), an engineering firm to which Prudent subcontracted certain inspection work. The case began as two separate actions: one against CHA (see NYSCEF Doc No. 73 ["CHA Complaint"]), and another against Kandey, Vergnet, Prudent and Ravi (see NYSCEF Doc No. 74 ["Complaint"]). On October 5, 2020, the Court entered a Stipulation & Order consolidating the two actions for all purposes. The parties conducted extensive fact and expert discovery over about 18 months,² and each defendant now moves for summary judgment dismissing NYSTA’s claims and the codefendants’ cross claims. The motions were returnable on March 11, 2022, and this Decision & Order follows. I. CHA A. Procedural History NYSTA commenced suit against CHA on November 9, 2018 by filing a Summons with Notice “to recover damages for negligence, professional malpractice and breach of contract arising out of services provided with respect to wind turbine projects in western New York, pursuant to a term agreement for design support services in the Syracuse and Buffalo Divisions of the Thruway Authority, contract No. D214038″ (NYSCEF Doc No. 72). NYSTA served CHA with a complaint on February 21, 2019, alleging four causes of action: (1) breach of the term agreement for design support services; (2) negligence; (3) professional malpractice; and (4) collection costs under SFL §18 (see CHA Complaint). CHA answered NYSTA’s complaint on March 18, 2019 (see NYSCEF Doc No. 75) and later served an amended answer (see NYSCEF Doc No. 78). As is pertinent here, CHA’s thirteenth affirmative defense alleges that NYSTA’s claims are barred by the expiration of the statute of limitations (see id., 51). Codefendants Kandey, Vergnet, Prudent and Ravi cross-claim against CHA for common-law indemnification and contribution (see NYSCEF Doc Nos. 79-82), and Kandey further alleges a cross claim against CHA sounding in “misrepresentation” (NYSCEF Doc No. 82,

219-259; see NYSCEF Doc No. 83, 13). B. CHA’s Role in the Project On January 31, 2011, CHA entered into a “Term Agreement for Design Support Services Primarily in the Syracuse and Buffalo Divisions” (NYSCEF Doc No. 91 ["Term Agreement"]), pursuant to which CHA agreed to provide “as-directed engineering services for [NYSTA]” (id., Schedule A). The Term Agreement is a master services agreement that “provides the framework for negotiation of individual project Assignments” to be initiated by NYSTA through issuance of “specific Scopes of Services and associated work plans” (id.). CHA’s assignments under the Term Agreement may include studies, surveys, preliminary design development, environmental assessment, plan review and the development of design documents (see id.). The Term Agreement had an initial expiration date of December 31, 2013 (see id., 3.1), but it was twice extended by the parties to September 30, 2015 (see NYSCEF Doc Nos. 92-93). CHA therefore maintains that its professional and contractual relationship with NYSTA terminated no later than September 30, 2015 (see generally NYSCEF Doc No. 90 ["DelSignore Aff."],