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.
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The Champlain Towers South condo association sued Morabito Consultants, Becker & Poliakoff and the Eighty Seven Park development team. |
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 [Lawsuit Pages 20-22: Conflict of
Interest], 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.