Selective Ins. Co. v Ron Schmidt Constr.

[*1] Selective Ins. Co. v Ron Schmidt Constr. 2006 NY Slip Op 51073(U) [12 Misc 3d 1166(A)] Decided on May 15, 2006 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2006
Supreme Court, Broome County

Selective Insurance Company AS SUBROGEE OF P.R.T.M. ENTERPRISES, INC. T/A NIRCHI'S RESTAURANT, Plaintiff,

against

Ron Schmidt Construction, Defendant.



2002-1880



APPEARANCES:

COUNSEL FOR PLAINTIFF:WHITE & WILLIAMS, LLP

BY: Brian E. Tetro, Esq.

Office & P.O. Address

1800 One Liberty Place

Philadelphia, PA 19103-7395

COUNSEL FOR DEFENDANT

AND THIRD-PARTY PLAINTIFF:BUCK, DANAHER, RYAN and McGLENN

BY:John J. Ryan, Esq.

Office & P.O. Address

100 Baldwin Street, Suite 305-311

Elmira, NY 14901-3013

COUNSEL FOR THIRD-PARTY

DEFENDANT:COUGHLIN & GERHART, LLP

BY:Keith A. O'Hara, Esq.

Office & P.O. Address

20 Hawley Street

Binghamton, NY 13901

Ferris D. Lebous, J.

Third-party defendant, Matzo Electric Signs, Inc. (hereinafter "Matzo"), moves for summary judgment dismissing the third-party complaint pursuant to CPLR § 3212. Defendant and third-party plaintiff Ron Schmidt d/b/a Ron Schmidt Construction (hereinafter "Schmidt") opposes the motion.

Oral argument on this motion was held on March 10, 2006, and, at the parties request,

the matter was adjourned until the court's next motion term on April 12, 2006 at which time the matter was deemed submitted. This matter is scheduled for a jury trial the week of June 12, 2006. As further agreed by the parties, this matter will be tried jointly with the related matter of

Fallen Oaks Associates, LLC versus Schmidt (Broome County Index No. 2004-0272).

BackgroundThis action arises out of a fire that occurred at Nirchi's Restaurant located at 215 Washington Avenue in Endicott, New York (hereinafter "the Building") on June 19, 2001. Some background regarding the Building's history is necessary.

In 1995, the Building was owned by Fallen Oaks Associates, LLC (hereinafter "Fallen Oaks") and leased to Jim & Nick's Bar-B-Q restaurant (hereinafter "Jim & Nick's"). During 1995, Jim & Nick's conducted extensive renovations to the Building including the installation of a neon lighting system on the front exterior wood fascia. Jim & Nick's entered into a contract with Matzo to install said neon lighting system which work was performed by John Matzo and Eric Lee, president and vice president of Matzo, respectively. Mr. Lee testified in his deposition that he specifically recalled placing rubber boots over the wiring connections of the neon system according to standard practice (Exhibit M, pp 31-33).[FN1] Fallen Oaks, the out-of-possession owner of the Building, inspected the work upon completion and no electrical problems were noted (Exhibit K, pp 18-19). Matzo was never contacted with respect to any problems with the installation of the neon lighting system on this Building after the initial installation work in 1995.

In 1997, Jim & Nick's restaurant closed and the Building remained vacant for the next 2½ years until late 1999.

In 1999, Nirchi's Restaurant entered into a lease with Fallen Oaks and began remodeling the Building. Prior to opening in February 2001, Nirchi's insurance company inspected the Building without issue (Exhibit N, p 18).

In June 2001, Mr. Nirchi hired Schmidt with the assistance of Douglas Ford, to replace the wood fascia with metal fascia behind the neon lighting on the exterior of the Building. In his [*2]deposition testimony, Mr. Schmidt states that he removed the neon lighting system, replaced the wood fascia with metal fascia, and then reattached the neon lighting system using the same materials. Additionally, Mr. Schmidt indicated that he found all the connections in the neon lighting system with bare wires twisted together with no covering caps or rubber boots.

On June 19, 2001, one week after Schmidt finished his work, a fire occurred at the Building causing significant damage to real and personal property.

Thereafter, Plaintiff Selective Insurance Company as Subrogee of P.R.T.M. Enterprises, Inc. T/A Nirchi's Restaurant (hereinafter "Selective"), hired Peter Vallas Associates Inc. to inspect the Building which issued a report stating, among other things, that "[t]he cause [of the fire] is the improper clearance between the lighting equipment and the metal fascia that had recently been installed" (Exhibit J).

On September 1, 2002, Plaintiff commenced this litigation against Schmidt to recover $230,946.32 for loss of business income, loss of business personal property, and improvements. On September 30, 2002, Schmidt filed a Verified Answer. On February 7, 2003, Schmidt filed a third-party action against Matzo for contribution and indemnification alleging Matzo had negligently installed the neon lighting system in 1995. On April 8, 2003, Matzo filed a Verified Answer in the third-party action.

Discussion

On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). The court must accept the non-moving party's evidence as true and grant him every favorable inference (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047 [1991]).

Matzo contends that it complied with industry standards in existence at the time when it installed the neon lighting system in 1995. In support of its position, Matzo relies on the deposition testimony of Mr. Matzo and Mr. Lee stating that they complied with the applicable Underwriter Laboratory ("UL") standards and used rubber caps or boots to cover the bare wire connections during the 1995 installation. The court finds that the deposition testimony of Mr. Matzo and Mr. Lee is sufficient to meet Matzo's initial burden on this motion for summary judgment. Consequently, the burden shifted to Schmidt as the non-moving party to come forward with evidentiary proof in admissible form raising material questions of fact for trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition, Schmidt submits an affidavit and supplemental affidavit of a forensic electrical investigator, William Patrick, Jr., who visited the scene on three occasions all within one month of the fire. Mr. Patrick opines that Matzo's original installation of the neon lighting system in 1995 did not meet the 1993 National Electrical Code and UL - 48 which were in effect [*3]at the time of the 1995 installation in the following respects: (1) the exterior insulated portion of the cable was of insufficient length as shown in photos and as noted by Mr. Schmidt; (2) the spacing of the original installation was insufficient; (3) the connection lacked boots, caps or cups; and (4) the lack of securing nuts.

With respect to the presence or absence of caps or boots, Mr. Schmidt and Mr. Ford testified during their depositions that they saw no caps or boots in 2001, while Mr. Patrick states that post-fire photographs do not show rubber boots.

In reply, Matzo objects to Mr. Patrick's opinion to the extent that it is "[b]ased on the assumption that between 1995 [the date of installation] and 2001 [when Patrick inspected the scene after the fire] the neon installation was never altered, repaired, or changed" (Reply Affidavit of Keith O'Hara, Esq. sworn to March 8, 2006, ¶ 4).

Here, the Court is presented with the deposition testimony of Matzo employees that they properly installed the neon tubing in 1995, and Schmidt's expert's opinion outlining defects in said installation. In view of the foregoing, the Court finds that there are numerous material questions of fact warranting denial of Matzo's motion for summary judgment on the third-party complaint including whether the 1995 installation by Matzo of the neon lighting system was done in accordance with then existing codes; whether Matzo used caps or boots to cover the connections; and whether the 1995 installation defects, if any, were a proximate cause of the 2001 fire.

Conclusion

For the reasons stated, third-party defendant Matzo's motion for summary judgment on the third party complaint is DENIED. The joint jury trial set for the week of June 12, 2006 will proceed as scheduled.

The foregoing constitutes an Order of the court. The mailing of a copy of this Decision and Order by this court shall not constitute notice of entry.

It is so ordered.

Dated: May 15, 2006

Binghamton, New York s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court [*4]

ALL PAPERS SUBMITTED IN CONNECTION WITH THIS MOTION HAVE BEEN FILED, ALONG WITH THE ORIGINAL DECISION AND ORDER, WITH THE BROOME COUNTY CLERK Footnotes

Footnote 1:All referenced exhibits are attached to the Affidavit of Keith A. O'Hara, Esq. sworn to November 11, 2005.