good morning may it please the court i'm charles kelly i'm here on behalf of the liquidating trustee of the key well estate kelly bohdan stapleton and i would like to address  two issues one is were there facts that were presented below that would allow for the trial court to have found the functional  and the trustees tort claim the same question is at issue here with respect to the functional equivalent of privity on the contract claim and if i do have a couple minutes at the end  also like to try to clarify some of the confusion that comes over whether or not the trustee raised a new claim with respect to the issue of third party beneficiary so first with respect to the turn goes to the issue of proximate care that issue was not raised before the trial court below and there are factual disputes about whether that's a material deviation the first and most important is end walls weren't there that were in the drawings right that's correct that certainly sounds like a material deviation well your honor i would first bring your attention to the record and mr mann himself who was the engineer of record in this case by new york law those were his drawings he testified that in his analysis for this structure  he considered this to be close to the issue of whether or not it was open or partially enclosed was relevant to his analysis second on the issue of proximate cause  have in the record and we brought to the court's attention that both of the experts in this case the expert hired by the appellant and the expert hired by the defendant had to say that the material fact in this case related to the fact that there was bracing in the structure that did not comply with new york state law there was a failure to have adequate bracing that led to the buckling in the structure and both defendants same say the same thing what's material here is is that a structural engineer i think is this court knows is the starting point for and he structure that structural engineer performing calculations that involve calculus in sophisticated physics issues doesn't let that out the door unless he or she is satisfied that the drawings are done properly that's the engine that's the starting point  and these calculations is also undisputed that the engineers had no contact or communications with the company  yes i think the most dramatic contact of all is is that these drawings which were done in the first instance by mr barrett and then thereafter signed by the engineer of record for the general contractor yes that's that's a direct contract is there any other contact any communique let's do this with any communication yes you would argue that that was a communication as well i think that there's nothing if you're a structural engineer that's more direct than that the mischief that is occurring here and that makes this a very significant case is that the only other three cases that have been cited by the parties here where there were structural engineers involved in that's rotterdam and that's actis and that is it will come to me i'm sorry but there's a third case in each one of those purpose of the drawings was to induce action by another party either to proceed with a structure to build it or to fix it there is nothing cases was that the only contacts i might  but that's true in each of the other cases but here's here i think is in social policy and here is the mr so if this court rules that that's not enough then structural engineers say hey look  don't enter into an oral contract my god that's a disaster there's another layer of protection that the second circuit has just put into place don't ever get on a conference call with  beneficiary because my god you could have liability the second circuit has just ruled that as long as all you do is your drawings you're off the hook that is a stunning precedent to set that is horrible social policy  and the reason why all these other courts in new york it's actually cited in each of these cases if a truism that it's inconceivable inconcievable logan baldwin case says that a engineer would not know that he or she is acting for the direct benefit of the owner of a property as a result and here that's the case the real issue is that these engineers know that they were acting for the direct benefit of he well the record is replete with answers that say yes they knew that this building was for p well and they knew without them stamping the drawings that there would be no structure there's nothing more direct it's or it seems as if it were an informal would you take a look at these drawings for me that's what it sounds like and yes your honor that's been the defense what are the what are the realities and what's in this record this record reflects that mr barrett was working on his own drawings the underlying drawing for the structure was first created by him too he's reviewing an engineer who was working by himself for the first time on a set of dr he's hired as mr barrett himself testified in order to make sure these drawings were done properly i would bring the court's attention to the brown well case which i think states this very beautifully at that moment mr barrett is standing in the shoes of prevailing and he says direct with key well at that point is prevailing was when they sat there and said we're going to find not just ourselves for what we can do but sub contractors who are qualified to provide you with what you need mr barrett then and this will be part of the trial if pray god we get there mr barrett the record shows also saw the same exact structural problem that led to the testimony and i bring the court's attention to pages eight to five one nine through eight to five to zero of this record the buckling issue that's at stake here he adana fide as an engineer he said that ratios were missed that the member ratios were missed and he still allowed it to go on what he's saying actually is i was incredibly negligent  engineer again the social policy here is stunning if the second circuit says look if what you say in the end is i was here just to actually check a typo or two even though i was an engineer i was here actually to make sure the coloring on the drawings is right even though i was an engineer allows for the kind to mischief that's actually at work in this case they're admitting that mind dressing said you have to get to the third party beneficiary argument your adversary says this wasn't a raise until the on whether or not you need to plead specifically a claim and a complaint and style it as if a third party beneficiary claim or whether it's satisfactory to bring a claim which is for breach of contract which is stablished through the establishment of rights as a intended third party beneficiary the rather dim case that i've just brought to your attention the logan baldwin case are brought to your attention act this which both parties have sided with approval brown well what happened there were there were contract cases that were at the heart there was no third party beneficiary claim the right analysis here is and as those cases point out do you establish that there are facts that reflect that you as the owner were the intended beneficiary of the work of the engineers and incredibly here and importantly for us in urging you to reverse the trial court said there is evidence that we are a third party beneficiary pleat such a claim below  yes i would bring your attention your honor to all of the following paragraphs in a minimum per paragraph thirty eight is the paragraph where we first say and our ally case cited with approval by judge scrutiny below says that the sub contractors are party to this contract paragraph thirty eight excuse me paragraphs forty seven through fifty five  mind and beret were working for the benefit of and on behalf of the well and that in the context of what they were doing they were failing to meet their duties because of multiple failures of wind load of stresses on the fabric i would also bring your attention to paragraphs eighty four and eighty five as it relates to mr mine there we say that mr  working for the direct benefit of he well and had a duty if you look in the contract cases we cited for you and the tort cases they all say that if you reference benefit and duty you've satisfied your pleading obligation again with barrett we reach that because we use the expressed term for key wells benefit and duty in paragraphs ninety five and ninety six of the amended complaint so yes  or honors there were no fewer than ten to twelve paragraphs in the last point on that that's really significant i think is is that hopefully you'll reverse and send this back so we can have a trial on this  structure but in the normal course and as the judge below found we have facts in the record there was discovery and the issue of third party beneficiary what the underlying contracts to the extent th existed were and what duties and for whom those duties runner taken that's in the record in the trial court said it appears that we can establish a third party beneficiary claim at worst we should be  allowed pursuant to rule fifteen at this point to amend if what we have to do is actually state a claim that says that the top third party beneficiary and do that but i would urge you i don't think we need to do that under new york law especially in a lot of the other cases where no one else has had to do it thank you very  much if it if it please the court i'm on bryant's what i represent mr barrett and his company right up till today the claim has been made that mr barrett prepared these drawings there's no proof in the record for record is an contradicted that he had an oral contract with pavilion to provide some edits to the drawings and he gave examples of that the clips don't look right you've got the same detail twice you don't need it that kind of thing it's on contradicted that he never agreed to review the design review the calculations was never provided the calculations eight how much five hundred dollars your  canadian i don't know how that works out back then but that's what it was this would be an incredible extension of the functional equivalent of privity to consider mr barrett and he well to have the functional equivalent of privity he never heard a key while until some point some undetermined point when he originally got the drawings they said which is a little town near jamestown new york and even the company at a location he never contacted keywell they never contacted him simply put this is being done for some clients of course that's it that's it there is not that linkage that closeness between keywell and mr barrett to allow for the functional equivalent of privity absent that these claims must fail there is no direct contract there was no breach of any direct contract by mr barrett he didn't have a contract with a bit to somehow say that because the contract implied that sub contractors were somehow tied into it would be unfair to hold mr barrett to that standard because he never saw it he never knew what the terms were and he have never agreed to be bound by those terms and conditions the lower court got it exactly right if for some reason you want to look further his oral contract describes a very circumscribed duty he didn't breach it he did what he was asked to do and there's no proof for proximate cause in any event all we ask is that you affirm the lower court's decision thank you very much my name is peter lorre i am here on behalf of your honor's the lower court's decision granting summary judgment to mr who's been should be affirmed and should be affirmed for several basic reasons on the breach of contract claim number one there was no contract whatsoever between mr uzma and key well number two there was no functional equivalent of privity between mr newsman and he was the the engineer of record he stamped the drawings yes should that stand for something human he stamped drawings putting his name on it knowing that it was going to the client certainly he did know that it was going to a client like mr barrett mr men only knew was hired by pavilion had a standing order agreement with pavilion had done about ten of these projects before very similar with pavilion was provided the drawings from pavilion and reviewed those drawings to see if they c that it was going to a company called he well that's all he knew had never had any direct contact with key well key well zone representatives that testified said that they didn't even know who mr who's been was never  communications with him there's certainly he was not to respond to the argument that the drawings are a key contact or communication there is no  key support that i'm aware of that simply drawings that are communicated between the general contractor the engineer to the general contractor and general contractor to the owner constitutes a communication and and enough that case i think your your honor noted that it involved other communications it was not just the school district the engineer sending engineering plans to the school district who was the owner it was the school district had recommended an engineer to be hired by the general contractor the school district in the engineer had communicated directly numerous times with each other and the engineer was sending his bills directly to the school district so there was vast amounts more of direct contact in the ossining case and i believe in the other two cases that he cited as well the there is a lot of discussion about the r l the r l sub contractors were going to agree to the master agreement it was that it was based upon the brownell decision which said that and in addition in the are all our case there was a direct relationship between the owner and the sub contractor because there was direct payments between those parties so there was a functional equivalent of property in that case with respect to the professional claim that was also properly dismissed for many of the same reasons we just discussed there's only a limited exception to the economic loss doctrine we discussed it at length in our brief and it's only when there's linking conduct between the sub contractor and the owner where there would be the engineer here and the owner where there would be a again a close relationship that would lead to  same sets of facts are usually found in most of those cases and we believe that it is the same and with respect to the third party beneficiary claim there  well the only claim of breach is that those min barrett breached the master agreement the court was well within its discretion to find that that was not pled that was not nor was it nor could it be proved in any event and finally with respect to well i'll just say that that there was a material deviation we don't think we need to get into that because that was not really addressed but mr mr plans were not was what was implemented by key will he well on its own changed the plans that mr had stamped and had approved by the removal of and walls so even if we got to that issue that would be another clean another reason to uphold the district court's decision for those reasons i respectfully request that you do thank you thank you both cannot reserve any rebuttal time or thank you all well argued that is the the last case on the calendar to be argued this morning so i will ask the