Surfside collapse defendants deflect responsibility in new court docs

Terra-led development entity, John Moriarty filed motions to dismiss victims’ complaint

Miami /
Jan.January 04, 2022 02:37 PM

The Champlain Towers South condo association sued Morabito Consultants, Becker & Poliakoff and the Eighty Seven Park development team (Getty Images, 11th Judicial Circuit in and for Miami-Dade County, Florida/Photo Illustration by Steven Dilakian for The Real Deal)

The defendants in the lawsuit filed by survivors and families who lost loved ones in the deadly Surfside condo collapse deflected responsibility for the tragedy that killed nearly 100 people, newly filed court documents show.

The Champlain Towers South condo association, through its receiver Michael Goldberg, filed its response and cross claims against Morabito Consultants, Terra Group, 8701 Collins Development LLC and Terra World Investments, as well as Eighty Seven Park’s general contractor John Moriarty & Associates, geotechnical engineer NV5 and structural engineer DeSimone Consulting Engineers. The association is among the group of defendants that were sued by the plaintiffs seeking class action status.

With the exception of the condo association and Morabito, all defendants – including the law firm Becker & Poliakoff – filed motions to dismiss the amended complaint filed in November, which alleged that the Terra-led development team of the neighboring tower, Eighty Seven Park, ignored warnings about the damage construction allegedly had on Champlain Towers South that ultimately resulted in the collapse.

In its court response, the condo association argues it met its duty to take care of the building, as it is not an engineering or structural integrity professional, but hired experts to examine the Champlain building. But the association acknowledges that its reliance on these experts was “misplaced,” according to its suit against other defendants.

A 2018 report by Morabito Consultants, the engineer the association hired to do the 40-year recertification inspection, failed to warn that any of the issues identified “threatened the life or safety” of residents, or posed “an imminent threat to the structural integrity” of Champlain, the association argues.

In its suit against other defendants, the association further alleges that it is unclear whether Morabito finished and turned in the 2018 recertification report, as the town of Surfside reported the document was submitted in the late afternoon of June 24, hours after the collapse. Morabito did turn in to the association a nine-page structural field survey report, dated Oct. 8, 2018, that in part determined failed waterproofing below the pool deck and entrance drive was causing “major structural damage” to the concrete slab underneath these areas.

Morabito’s report ended up in the hands of Becker & Poliakoff, the Champlain association’s law firm. Yet, the law firm allegedly ignored the engineer’s findings, rather than recognize the report disclosed serious problems with the building, and failed to advise the association to inquire whether the issues posed safety concerns, according to the association’s suit. Other allegations include that Becker should have advised the association that it had emergency powers to fund needed repairs.

The Morabito report had put a $10 million price tag on the needed repairs.

Champlain unit owner Susana Rodriguez sent Becker & Poliakoff a letter in 2018 along with an attachment of the Morabito report, seeking the law firm’s advice regarding the issues raised in the report. Becker’s response letter was “terse and dismissive,” ignoring Rodriguez’s concerns and telling her that the law firm technically is retained by the association and does not provide legal opinions to anyone else other than the association through its board of directors, according to the countersuit.

The association’s countersuit also points out an alleged conflict of interest that Becker & Poliakoff had, as one of its attorneys, Michael Góngora, advised the association on disputes with the Eighty Seven Park development team while he was a Miami Beach commissioner, court documents show. The association had questioned the city’s development agreement with the Terra-led entity that allowed the developer to take over the street separating the two properties, moving Eighty Seven Park’s footprint closer to Champlain.

Góngora’s affiliation to the city of Miami Beach was not disclosed to the association, according to the countersuit. He ended his last term in 2021 and also had served on several Miami Beach boards.

Góngora did not immediately respond to a request for comment. Góngora told the Miami New Times in July that he never worked directly with the association or received compensation from Champlain Towers South. He attended one board meeting, likely in 2019, to help another Becker attorney tabulate board election ballots, Góngora told the New Times.

In its motion to dismiss the collapse survivors’ suit, Becker & Poliakoff argues that it was retained by the association and not by the individual residents now suing the law firm. The firm alleges that the claim against it for gross negligence is inappropriate and “creatively rebadging a malpractice claim as something else.”

In an emailed response, Becker & Poliakoff said including the firm in the litigation is “misguided,” as the firm’s representation of the association “did not include counsel on property management, structural engineering or technical matters related to construction or maintenance.”

“Rather, the firm advised that the board seek counsel from experts in those areas to inform its knowledge and decision making,” Becker & Poliafoff said in its statement, adding that the firm “stands behind its professional counsel.”

Morabito denied it is at fault for the collapse in its court response to the second amended complaint, adding it believes other defendants could be found liable.

In a statement, a Morabito spokesperson said the engineering firm submitted a 40-year recertification report to the Champlain association in 2018 and then again in 2020. Morabito sent it to the town of Surfside on June 24 in response to a town email concerning the report.

“The firm conducted two comprehensive inspections of the Champlain Towers South Condominium, most recently in 2020, which offered a thorough set of findings and recommendations for repairs. None of those findings indicated the building was at risk of complete structural failure or that it was at imminent risk of collapse,” the spokesperson said in the statement. “Morabito Consultants performed its duties at Champlain Towers South Condominium consistent with industry standards.”

Sheet pile driving next door
The association again alleges in its suit against the other defendants that 8701 Collins Development, Terra Group, Terra World, John Moriarty & Associates of Florida, NV5 and others ignored warnings from Champlain Towers South residents regarding the use of sheet pile driving. The suit argues that sheet pile driving is “an ultrahazardous and abnormally dangerous construction activity” and alleges that the defendants failed to adequately monitor the work.

A subcontractor of John Moriarty performed sheet pile driving from February 24, 2016 to March 28, 2016. On the north side of the Eighty Seven Park property bordering Champlain Towers South, the piles were driven about 10 feet away from the Surfside building’s foundation wall, according to court documents.

The association alleges that the Terra defendants, John Moriarty, NV5 and DeSimone “made a purely profit-driven decision” by using sheet piles to develop Eighty Seven Park.

The complaint cites emails from the Radulescu family, residents of a fourth-floor apartment at Champlain, to Francisco Canestri, then a Terra project manager. The 2016 emails state the family was “very concerned because of the daily TREMORS we encounter, in our apartments, sitting, standing, laying in bed.” The emails refer to damage caused by construction of Eighty Seven Park, including a crack on the balcony of the unit the family lived in.

Maria Popa Radulescu and Mihai Radulescu, two of the family members, died in the collapse.

“We write this message to inform you of what our residents encounter, daily, because you must be aware of what happens with your workers, and heavy machinery, and you must be concerned of what happens to us the residents of our building, Champlain Towers, South,” one of the emails stated.

The association also alleges that the other defendants, excluding Morabito, did not monitor the dewatering at Eighty Seven Park, which resulted in an asymmetric drawdown of the water table underneath Champlain Towers South, creating structural stress and load redistribution. It alleges that photographed damage of step cracking in the south foundation wall of the Champlain building in 2020 was a “telltale sign” that the building “suffered from differential settlement caused by Terra Defendants’, JMA’s, NV5’s, and DeSimone’s improper and unmonitored dewatering,” according to the court filing.

In their response, Terra’s affiliates called the allegations in the second amended complaint that Eighty Seven Park construction led to the collapse “an astonishing proposition” that will be disproven.

In its court response, John Moriarty also disagreed with the claim Eighty Seven Park construction caused the collapse, and cited a law that says a contractor is not liable after a project has been finished and accepted by the owner.

NV5 responded in court by saying that even the lawsuit filed by survivors and families who lost loved ones claims NV5 issued reports to the Eighty Seven Park development team warning of construction risks. In its motion to dismiss, DeSimone points out that the second amended complaint itself says that others involved in Eighty Seven Park construction and not DeSimone oversaw pile driving, excavation, compaction and dewatering that allegedly led to the collapse.









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