PITTSBURGH – A housing community owner who alleged that its neighbor’s construction caused nearly $250,000 in severe damage to retaining walls and surrounding property, now seeks a default judgment in that same amount against one of the defendants.
Graybul Ascent 430, LLC of Wexford first filed suit in the Allegheny County Court of Common Pleas on June 14 versus Vainshtein Nursing Corporation and Igor Vainshtein of Wexford, plus Green Fox Ventures, LLC of Pittsburgh.
“Graybul is the owner of the Ascent 430 multifamily community at 430 Ascent Drive, Wexford, PA 15090. Several of the buildings in Ascent 430 abut downhill slopes and are secured by retaining walls built during the construction of the Ascent 430 buildings, to guard against landslides or other destabilization of the ground. For the same reason, the structural integrity of the downhill portion of the Ascent 430 property from the buildings and retaining walls is critical to the stability of the rest of the property, and the health and safety of the residents of Ascent 430,” the suit said.
“Upon information and belief, Vainshtein is the owner and chief executive officer of VNC. VNC owns two adjacent parcels located at 165-167 Warrendale Bayne Road, Warrendale, PA. In late 2020 or early 2021, VNC and Vainshtein engaged certain contractors, including defendant Green Fox, to conduct certain development and/or construction work on the VNC Property. Prior to beginning any work on the VNC Property, Vainshtein went to Ascent 430’s main office on or around Feb. 5, 2021 and asked representatives of Graybul if VNC and its contractors, including Green Fox, could cross over Graybul’s property at Ascent 430 as part of VNC’s construction project.”
Graybul refused to grant such permission to Vainshtein on Feb. 5, 2021. Despite that refusal, the defendants allegedly decided to ignore the prohibition and did whatever they wanted to do anyway. The plaintiff insisted VNC and Vainshtein knowingly, intentionally and repeatedly trespassed onto the Ascent 430 property throughout the construction project.
“Defendants did not merely cross over Graybul’s land, but also caused substantial damage to the Ascent 430 property. Defendants installed an unpermitted road across the Ascent 430 property over which defendants moved equipment, vehicles, and heavy machinery. Defendants also engaged in excavation on the Ascent 430 property, spread a substantial amount of spoil material, rocks and other refuse, including from the VNC Property, on Ascent 430’s property, and damaged numerous trees on the Ascent 430 property. Even more troubling, defendants’ work has impacted the slope where the retaining wall was constructed,” the suit stated.
“This has left several buildings on the Ascent 430 property vulnerable to a potentially catastrophic destabilization or collapse if there is a severe rainstorm or other disturbance to the ground. Defendants’ renovation project was also unpermitted and illegal. VNC was cited by the Marshall Township for ‘numerous violations of the Township’s Grading Ordinance’ and ‘significant disturbance of the adjoining properties.’ Indeed, the disturbance caused by defendants was massive, outlined on the map on page 7 of the Marshall Township citation and spreading across plaintiff’s, VNC’s, and other neighboring landowners’ properties.”
After being compelled to investigate the scope of the damage, the plaintiff said it has already incurred or will incur at least $3,620 for surveying, $1,974 for emergency ambrosia beetle treatments and $8,500 for civil engineering and permitting because of defendants’ intentional and reckless behavior from engineering firm PVE, for a total of $14,094.
Moreover, PVE estimated that the repair work to ensure the integrity of the retaining wall and other parts of the property affected by defendants’ actions would cost at least an additional $231,913.
Though Vainshtein claimed he would repair the damage that defendants caused to the Ascent 430 property, he also has stated that he disagrees with, apparently with no basis, PVE’s professional judgment and refused to come up with a plan to fix the retaining wall and surrounding property.
“Graybul is left to conclude that Vainshtein and VNC is attempting to shirk responsibility for the damages caused and avoid the hundreds of thousands of dollars of damage defendants have caused. For its part, Green Fox never bothered to respond to plaintiff’s March 12, 2021 letter or otherwise attempt to resolve the matter, leading Graybul to believe that Green Fox too is attempting to shirk responsibility for its own misconduct,” per the suit.
“Graybul cannot wait for defendants any longer, and thus brings this complaint against them for all damages caused by defendants in an amount to be proved at trial.”
Vainshtein Nursing Corporation and Vainshtein filed an answer to the complaint, plus a cross-claim against its co-defendant Green Fox Ventures, on Oct. 14.
Both filing defendants denied the plaintiff’s claims in their entirety.
“Plaintiff’s complaint fails to state a claim upon which a claim upon which relief may be granted. Plaintiff’s claims may be barred by the applicable statute of limitations. Plaintiff’s claims may be barred by the doctrine of justification. VNC is a Pennsylvania corporation. VNC contracted with Green Fox for certain construction work,” the new matter said.
“Vainshtein is not individually liable for any acts or omissions of VNC. Vainshtein and VNC are not liable for any acts or omissions of Green Fox, an independent contractor. Plaintiff’s damages, if any, were caused by intervening and superseding causes not within the control of these defendants. Plaintiff’s damages, if any, were caused by acts or omissions of third parties not within the control of these defendants. Plaintiff’s damages, if any, may be barred or reduced by its failure to mitigate damages.”
The defendants additionally asserted the defenses of public necessity, privilege and consent, and reserved the right to assert any affirmative defense identified in Pennsylvania Rule of Civil Procedure 1030, which may prove applicable in the course of discovery.
UPDATE
Counsel for Graybul filed a praecipe to enter default judgment against Green Fox Ventures on Nov. 22.
“Kindly enter judgment of default in favor of Graybul Ascent 430, LLC and against Green Fox Ventures, LLC, for default in not filing an answer or preliminary objections to the complaint, and assess the plaintiff’s damages as follows: Amount claimed in plaintiff’s verified complaint: $246,007 (without limitation to additional future damages),” the praecipe stated.
Counsel explained that the notice of praecipe to enter judgment by default was mailed to the defendant in question on Nov. 12, 2021, at least 10 days prior to the date of the filing of this praecipe.
For counts of permanent and injunctive special relief, negligence and negligence per se, trespass and continuing trespass and nuisance, the plaintiff is seeking, jointly and severally, various reliefs:
• Injunctive relief prohibiting VNC and/or Vainshtein, or any individual or entity acting for or on their behalf, from entering plaintiff’s property without express written permission from plaintiff;
• An award of money damages suffered by plaintiff as a result of defendants’ negligence and negligence per se against defendants, in an amount to be proved at trial;
• Injunctive relief prohibiting continued and recurrent trespasses, and entering an award of money damages suffered by plaintiff as a result of defendants’ trespass against defendants, in an amount to be proved at trial;
• Injunctive relief prohibiting the continuing nuisance, and entering an award of money damages suffered by plaintiff as a result of the nuisance caused by defendants against defendants, in an amount to be proved at trial;
• An award of attorneys’ fees and costs of litigation, together with interest and all other costs permitted by law, and providing any other relief as the Court deems just and proper at law or in equity.
The plaintiff is represented by Jesse R. Loffler of Cozen O’Connor, in Pittsburgh.
The defendants are represented by Brian S. Kane of Burns White, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-006736
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com