PELHAM, NY (April 13, 2022) — A company operating a Rubicco family “Treehouse” daycare brand location sued its architect, alleging faulty design work cost the facility six children’s worth of state-licensed capacity and, by the company’s own estimate, more than $1 million in damages. The litigation is ongoing.
According to a Verified Complaint filed April 13, 2022, in Westchester Supreme Court, Anna & Jack’s Treehouse, LLC — the entity behind the Rubiccos’ New Rochelle-based daycare operation — hired KTM Architect, PLLC on Aug. 31, 2020, to design a fit-out of roughly 8,568 square feet of former commercial office space at 629 Fifth Avenue in Pelham. The goal was to convert the space into a licensed daycare center for “under 100 children,” according to the complaint.
KTM is named in the summons at a Mamaroneck address, 700 Fenimore Road, 2nd Floor. The firm’s contract letterhead lists a separate office address at 42 North Main Street, Port Chester.
The signed contract, filed twice in the litigation — once as an exhibit to the original complaint and again by KTM in later motion practice — set architect Kimberly Tutera Martelli’s fee at $24,000 plus construction administration, payable in stages from feasibility study through construction documents and permit filing. The contract required that KTM’s design “be in accordance with” the local zoning ordinance, New York State Building Codes and New York State Office of Children and Family Services regulations, according to the filing.
KTM’s drawings called for 10 classrooms designed to house 22 staff and 86 children — 30 four- and five-year-olds, 16 three-year-olds, 24 toddlers and 16 infants — according to the complaint.
Construction ran through much of 2021. A fit-out budget proposal from general contractor StructureCraft Contracting, dated May 17, 2021, priced the interior buildout at roughly $493,000. Following construction, in late July 2021, the facility was inspected by an OCFS representative — identified in later filings as Chinee Dunn — along with fire inspector Joe Romano, ahead of the state issuing a Day Care Center license, according to the complaint.
The complaint states OCFS measured several classrooms as too small to support the capacities shown on KTM’s drawings and cut the facility’s total licensed capacity from the designed 86 children to 80. The reduced license took effect Sept. 1, 2021.
Anna & Jack’s said the six-child reduction caused significant, ongoing financial harm and retained architect and planner Mark Harris Berman of Berman & Wright Architecture, Engineering & Planning, LLC to investigate. Berman’s Jan. 28, 2022, report, filed as an exhibit to the complaint, concluded that KTM’s drawings contained inconsistent and non-code-compliant occupancy figures, and that infant and toddler classrooms in particular failed to account for required sleeping and circulation space separate from the 35-square-foot-per-child activity space mandated by OCFS regulations for those age groups.
Berman’s report also identified internal contradictions in KTM’s paperwork, including a staff/child ratio chart that listed a total of 76 children where the floor plans and occupancy diagrams called for 86. The report estimated that returning the facility to its originally intended capacity would cost roughly $323,000 in construction work, on top of an estimated $1,024,935.46 in lost revenue and related damages if the facility shut down temporarily to complete it.
The complaint asserts two causes of action against KTM — breach of contract and professional malpractice/negligence — both seeking damages “in excess of $1,024,935.46,” plus interest, costs and attorneys’ fees.
KTM, sued as “KTM Architect, PLLC” but formally answering as Kimberly Tutera Martelli, Architect, PLLC, which its attorneys say was incorrectly named in the complaint, filed a Verified Answer on May 24, 2022, denying the substantive allegations and asserting 27 affirmative defenses. Those defenses include failure to state a cause of action, the economic loss rule, Anna & Jack’s alleged failure to mitigate damages, comparative negligence and waiver, among others. The firm’s attorney, Richard Berne of Brooks & Berne, PLLC, also asserted that the court lacked both personal and subject matter jurisdiction, according to the answer.
Talk of the Sound has not yet reviewed the underlying OCFS inspection file itself — only its characterization within the Berman & Wright report and the license document reflecting the reduced 80-child capacity. OCFS records anticipated through a FOIL request due in August 2026, may add detail to how and why the July 2021 inspection reached the conclusions it did. This article will be updated or followed by additional reporting as those records are reviewed.
This is the first in a series with a series examining the litigation. A second article will cover KTM’s third-party impleader of an additional defendant and the resulting motion-to-dismiss fight; a third will cover the outcome of that motion, the pending appeal and the current discovery dispute.
Editor’s note: On July 9, 2026, four plenary summonses were served on Robert Cox in the Irish High Court (Record Nos. 3331, 3337, 3338, 3339/2026P) by Sheehan & Partners LLP on behalf of Rubicco-associated LLCs. Talk of the Sound continues reporting on matters of public record, including the litigation detailed above.
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This article was prepared with the assistance of AI tools under the direction and editing of Robert Cox.
Have information about this story? Email robertcox@talkofthesound.com (preferred) or contact via WhatsApp: +353 089 972 0669.