Upper West Side Penthouse/Wine Room Wrangle: Improper Cooler Selected for Vintage Italian Artisanal Wines?

This was originally posted on the SGR Blog.

The COVID-19 pandemic has fomented lawsuits relating to frustration/impossibility of performance, taking of property by Executive Order, and insurance coverage for casualty losses. But our Courts must still hear and determine less consequential, non-recurring fact-specific disputes. And, as a recent case illustrates, what would appear to be rather banal to some is “essential” to others.

Ellen Mathias and Enrico Dealessandrini brought suit arising from their almost $1m renovation of PH-2B at 200 Riverside Drive–more $800K under a construction contract; in excess of $156K in change orders; and over $32K in direct payments to subcontractors.

The mammoth project included the installation of a wine room by Fiskaa Engineering, LLP, at a budgeted cost of $12,000. Fiskaa is a professional engineering firm “that concentrates its practice on mechanical, electrical and plumbing engineering”—and “has designed plans for numerous different commercial businesses, including retail, hospitality and general office space, and for different residential spaces, including units within multi-dwelling unit buildings and single-family homes.”

The wine room was not simply a “vanity” project,” a useful and desired adornment. The room allegedly was “an integral part” of the renovation that had “a very important business purpose.”

Dealessandrini operated a winery business in Italy—Sassai, LLC—featuring “[o]ld world varietals planted in the 1940s and 1950s[.].” Located in the Monferrato region of Piedmont, “known for traditional crafted limited production wines.” Sassai “employ[ed] sustainable agricultural practices in caring for the vineyard and solar energy in the winemaking process. “The estate managed more than 60 acres of its own vineyards. And “each vintage [was] harvested by hand to ensure the selection of superior grapes for artisanal wines.”

The wine room was more than a vanity project. Dealessandrini “expected to have wines shipped to and stored at the [unit] in order to further the business in the United States.”

The suit against Fisskaa alleged that the wine room failed to maintain an adequate temperature for the storage of wine. Fiskaa moved for summary judgment dismissing the complaint. And contended that its professional engineering services were within the locally accepted standard of care: properly calculated the heat load for the wine room; and selected a wine cooler with sufficient capacity to cool the wine room to the objective temperature of 55 degrees. Fiskaa alleged that the purported failure of the wine room to maintain the desired objective temperature was caused by construction issues for which Fiskaa was not responsible as it was not the special inspector for this matter.

Fiskaa submitted the affidavit of Stephen Papadakis, a partner, and New York licensed (since 2003) engineer. Papadakis stated that Fiskaa drafted plans and specifications only for the procurement and installation of the wine room AC unit and associated air ducts. But was not responsible for the design, architectural work, or the special inspections. Fiskaa also submitted the parties’ contract, “Proposal for Engineering Services,” dated August 22, 2014.

Fiskaa stated that it properly determined the heat load of the wine room and determined that the wine room AC unit needed to have the capacity to remove 2,353 British Thermal Units per hour of heat from the wine room. And that Fiskaa also determined that the wine room AC unit would need to possess the capacity to remove that amount of heat from the wine room through the air circulating in the air ducts — a “fully ducted” system.

Fiskaa specified a WhisperKOOL Model 3500tiR Extreme Fully Ducted AC unit and provided specifications for that Model– which stated that such system had a rated capacity of 2,688 BTUH for a room size of 800 cu. ft. Such unit– if installed in a wine room as specified in the architectural plans and manufacturer’s specifications and operated pursuant to manufacturer’s specifications– should have been able to maintain an interior wine room temperature of 55°F to 60°F. And Fiskaa specified the wine room AC unit with the understanding that the contractor would install the wine room AC unit in conformance with the manufacturer’s specifications.

The unit owners offered the deposition testimony of Denise Rotondi, a cooler installer; the affidavit of Enrico de Alessandrini, one of the owners; and business records from Whisper Kool. And also offered the affidavit of Raymond Locicero, PE, who identified himself as a professional engineer, although he did not attest that he possessed a license to practice as a professional engineer in New York.

The owners contended that Fiskaa was responsible under the contract for determining the necessary heat-removal specifications to chill the wine room to the required temperature and for selecting a specific cooling unit that had the capacity to chill the space to the appropriate temperature. And asserted that Fiskaa designed a dysfunctional wine room and miscalculated the cooling specifications, which led to the selection of an undersized cooling unit.

The Court found that Fiskaa met its burden for summary judgment. But the owners successfully raised material questions of fact as to whether Fiskaa accurately calculated the heat load of the wine room and selected the appropriate cooling unit to maintain a temperature of 55 degrees. Accordingly, Fiskaa’s motion for summary judgment was denied.

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