Vinroz, LLC v Gutierrez

[*1] Vinroz, LLC v Gutierrez 2009 NY Slip Op 50839(U) [23 Misc 3d 1119(A)] Decided on May 1, 2009 Nassau Dist Ct, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2009
Nassau Dist Ct, First District

Vinroz, LLC, Petitioner(s)

against

Jose Gutierrez d/b/a Nassau Deli, Respondent(s)



SP 4918/08



Martin Katzman, Esq.

Attorney for Petitioner

1103 Stewart Avenue, Suite 200

Garden City, New York 11530

516-832-8070

Leonard Rodney, Esq.

Attorney for Respondent

80 Cutter Mill Road

Great Neck, New York 11021

516-498-1717

Scott Fairgrieve, J.

TRIAL DECISION

Petitioner Vinroz, LLC has commenced this non-payment proceeding against Jose Gutierrez d/b/a Nassau Deli, located at 375 Nassau Road, Roosevelt, New York, to recover the sum of $52,332.00 for rent alleged to be owed through February of 2009.

The parties executed a New York Commercial Lease Agreement, effective January 1, 2007, and ending December 31, 2007 for the 1st floor. A fire occurred on May 13, 2007 which damaged the deli on the first floor and the apartments on the second floor.

Paragraph No.14 of the Lease, entitled Damage and Destruction states:

"Subject to Section 8 A above, if the Leased Premises or any part thereof or any appurtenance thereto is so damaged by fire, casualty or structural defects that the same cannot be used for Tenant's [*2]purposes, then Tenant shall have the right within ninety (90) days following damage to elect by notice to Landlord to terminate this Lease as of the date of such damage. In the event of minor damage to any part of the Leased Premises, and if such damage does not render the Leased Premises unusable for Tenant's purposes, Landlord shall promptly repair such damage at the cost of the Landlord. In making the repairs called for in this paragraph, Landlord shall not be liable for any delays resulting from strikes, governmental restrictions, inability to obtain necessary materials or labor of other matters which are beyond the reasonable control of Landlord. Tenant shall be relieved from paying rent and other charges during any portion of the Lease term that the Leased Premises are inoperable or unfit for occupancy, or use, in whole or in part, for Tenant's purposes. Rentals and other charges paid in advance for any such periods shall be credited on the next ensuing payments, if any, but if no further payments are to be made, any such advance payments shall be refunded to Tenant. The provisions of this paragraph extend not only to the matters aforesaid, but also to any occurrence which is beyond Tenant's reasonable control and which renders the Leased Premises, or any appurtenance thereto, inoperable or unfit for occupancy or use, in whole or in part, for Tenant's purposes."

In other words, the lease provides that the Tenant is relieved from paying rent in the event that the premises become unuseable due to fire. However, the above paragraph is subject to Paragraph 8A entitled Insurance which states:

"If the Leased Premises or any other part of the Building is damaged by fire or other casualty resulting from any act or negligence of Tenant or any of Tenant's agents, employees or invitees, rent shall not be diminished or abated while such damages are under repair, and Tenant shall be responsible for the costs of repair not covered by insurance."

The question before the Court therefore is did the instant fire result from "any act or negligence of Tenant or any of Tenant's agents, employees or invitees . . . ?"

TRIAL TESTIMONY

PETITIONER'S TESTIMONY

Vincent Kennedy testified that he is the President/Manager of Petitioner. Ownership of the property by Petitioner was stipulated to by the parties.

A fire occurred at the building on May 13, 2007. Mr. Kennedy described the damage to the building as follows:

"Yes, there was. There was some damage to the back of the deli the back of the upstairs portion of the building. But, there wasn't hardly any damage, other than the water and smoke to the [*3]front part of the deli and to the upstairs portion."

Mr. Kennedy further testified that rent is owing from Respondent from June 2007 through February 2009 for a total of $52,332.00. The Court allowed Petitioner to amend the Petition to reflect the foregoing amount owed over the objection of Respondent who claimed that any claim past three months was stale. Mr. Kennedy states that he made demands for the rent each month from Mr. Gutierrez who responded that "he didn't have the money. He doesn't think he should have to pay because of the fire."

Mr. Kennedy made demand upon Mr. Gutierrez several times about moving the equipment in the deli so he could have the premises gutted and rebuilt. Mr. Gutierrez never made the premises available to the Petitioner to have the same rebuilt prior to commencing the summary proceedings in September of 2008.

On cross examination, Petitioner repeated his testimony that he made demand for access to the premises in November of 2007. Petitioner alleged that he delayed in commencing the summary proceedings until November of 2008 because he had a lot of other items to take care of with respect to the building.

TESTIMONY OF MICHAEL MENNELLA - NASSAU FIRE MARSHALL' OFFICE, SHIELD 102, FIRE INVESTIGATOR

Mr. Mennella has been employed by the Nassau County Fire Marshall's office for 10 years. He holds the position of Fire Investigator Level Two, which is the highest level in New York. He has investigated 400 - 500 fires personally. The Court deemed him an expert in the field of fire investigation.

Mr. Mennella investigated the fire on May 13, 2007 at the request of the Roosevelt Fire Department and arrived at the scene about 6:48 p.m. Mr. Mennella testified to the following:

"Upon my arrival, there was still some smoke emanating from the building. Several fire trucks with multiple firefighters still in operation performing what we call overhaul. It's where the majority of the firemen extinguished still some hot spots remaining and they were extinguishing those remaining areas of fire. And the Fire Chief offers the services of his Department to myself to assist in the investigation of the fire."

Mr. Mennella started his investigation on the second floor where the apartments were located. The K-9 dog found no presence of any accelerants such as gasoline, kerosene, or diesel fuel. The majority of the fire was on the second floor.

Thereafter, Mr. Mennella proceeded to the first floor to investigate. The premises had a great [*4]deal of water damage. There was a back room used as a storage area for beverage cases. Behind the back room was a room that contained a pool table, a juke box, and coin operated gambling machine. Mr. Mennella testified that the fire originated in the storage area of the deli and not from the second floor. The burn marks on the sloped ceiling indicate the fire started from below and not above. He observed a "V" shaped pattern which would indicate that the fire started on the first floor. Specifically, he testified:

THE WITNESS:"The area in the left. This is the obstructed exit from the pool table room. This is the area on the right side of the picture that's underneath the ventilation fan. There's a very deep V shaped pattern in this area.

THE COURT:Which would indicate?

THE WITNESS:Which to me would indicate that which would indicate a fire all the way down to the base of this material, which have to be behind the almost underneath the cases of soda and other beverage there. To me that would not be consistent with fire going on the second floor. Even explained through drop down obviously there is the issue that we had that I had I had to deal with any burning materials coming through the fan and dropping into the premises. There's way too much fire, in my opinion, in the deli area to be consistent with a drop down effect of fire. In 3D, we see a little bit further down that hallway into the pool table room, there are burn marks on the door. This has its own ceiling and is approximately ten to fifteen feet.

THE COURT:The area on the left?

THE WITNESS:Kind of in the center. This open door with white door with the black burn mark is right up against these cases of beer.

This has its own ceiling area, which is only about eight feet or ten foot ceiling approximately ten to fifteen feet away from the other V pattern. There was also no visible connection of these two fires which would lead to me like multiple fires."

Mr. Mennella further testified regarding photographs marked as Petitioner's 3C & 3A:

"In 3C, we see a close up of that access door to the pool table room and a case of beer. Burn pattern indicates fire on the door side closer to the door, not on the side of the box closer to the ventilation fan. That would make me believe that the fire started on this side. My working theory was that this door was opened. it's a you can't walk down there without walking on three feet high of glass puddles. It was either a cigarette was discarded out this door from the pool table room or some type of intentional human like open flame to combustible materials to that box which then spread." [*5]

"And then there is one additional photo reference 3-A same hallway as discussed in the last photo. This is just on the other side of the hallway. If you were in the pool table room you opened that door a box I just described was on the left. This chest freezer was on the right. Also, there's a straight burn pattern unrelated to and seemingly unconnected to the other box."

"It could have been either multiple cigarettes discarded or intentional human act."

Mr. Mennella interviewed Robin Joel who was working at the deli at the time of the fire. The female tenant from the second floor came and told Mr. Joel that the premises were on fire. Mr. Joel reported to Mr. Mennella that he proceeded to the pool table room and told the several people in the room to evacuate. Mr. Joel reported that the pool room was not a publicly occupied available space and that anybody in the pool room would have to be given permission to be there. The premises didn't have a public assembly license.

Based upon his investigation, Mr. Mennella testified that the fire started in the rear storage area. He stated:

"Based upon my investigation, I have determined with a reasonable degree of scientific certainty that the origin is in the rear storage room at the deli, 375 Nassau Road, Roosevelt, on May 13, 2007."

Most important, on cross examination Mr. Mennella stated that he was able to rule out all causes of the fire at the deli except for human activity, namely arson or a discarded cigarette. He testified:

Q"So, you don't know if it was arson or as a result of any negligence on the part of any of the tenants or anybody else who was at the premises at the time of the fire?

AIndicated in my report the last - - I was able to rule out all causes of fire except for arson, human act, or a discarded cigarette. No electrical problem. There was no cooking problems. There was no light reflection off of a piece of glass. No natural cause. No lighting. No spontaneous combustion. All those causes were eliminated. The last two I was left with was arson and discarded cigarette.

QWere you able to eliminate combustion?

ASpontaneous combustion. There were no materials present in that area that would contribute or cause spontaneous combustion.

QWere you able to rule out any electrical fire upstairs? [*6]

AYes, I was.

QHow were you able to do that?

AThrough the examination of the burn pattern and the wiring. There were no I examined the outlets and wiring in the premises on both the first floor and second floor. And while they did suffer fire damage they their location did not match with an appropriate origin of the fire. So they were all deemed to be fire damaged and not causes of the fire.

QDid was there debris on the roof above the deli?

AYes, there was.

QWere you able to examine that debris to determine whether that debris on the roof may have caused the fire?

AYes, I did.

QWhat did you observe?

AWell, the burn patterns present on the building were not consistent with a fire or are you talking about the roof area?

QYes."

Finally, in response to the Court's questions, Mr. Mennella testified that the cause of the fire was human activity either intentional act or discarded cigarette.

THE COURT:"I have a question for you.

Are you indicating based upon your investigation that human activity was the cause of this fire either through arson or through cigarette smoking?

THE WITNESS:Yes. Either discarded cigarette or intentionally."

TESTIMONY OF JOSE GUTIERREZ d/b/a NASSAU DELI

Mr. Gutierrez testified that he operates the deli at 375 Nassau Road, Roosevelt, New York. [*7]

He further testified that Petitioner told him not to pay the rent in June of 2007.

Q"What did Mr. Kennedy say to you; what did you say to him?

AHe said that I needed to get the rent paid. I said, I actually started to make a check. Then I said, you know, I am pretty short on money can you give me a few days. Then he said, "Well you don't have to worry about the rent, you can hold up, you know, until we settle you know, start working on the deli. We are going to renovate the deli. You got my word, you don't have to worry about that."

Respondent testified that no demand was ever made in writing or orally for the rent from the time of the above quoted statement until the summary proceedings were commenced by Petitioner. He further testified that he kept asking for the deli to be renovated but Petitioner was delayed because Petitioner was waiting for permits from the County of Nassau.

Respondent was asked by Petitioner to remove or move his equipment/inventory about six or eight months after the fire. Respondent offered to move the equipment but couldn't remove it out of the store because it was impossible. He did offer to move the equipment to the middle of the store and renovations were eventually done with the equipment present. The Landlord had access to the premises from June of 2007 on, and a key was given to him. Renovations were done in around December/January of 2009.

On cross examination Respondent testified that in the backroom was a pool table, a stereo, and a "machine, non-coin-operated just to play." Four to six people were in the back room on a daily basis.

TESTIMONY OF JAZZ BROWN

Jazz Brown testified she was at the premises on the day of the fire. She arrived at about 11:00 a.m. to have lunch and to check on her cousin who works at the deli. She testified the fire started between 12:30 p.m. and 12:45 p.m. - "During Lunchtime. At the time of the fire, there were two people playing pool, and three others (including herself) waiting to play pool.

Jazz Brown testified that she learned of the fire when smoke came through the open door. She exited through the hallway/storage area to proceed to the front of the deli. There was no smoke or fire in the storage/hallway area. Jazz Brown went past the hallway/storage area three times to retrieve property and to get people out. There was no fire or smoke in the hallway/storage area as she passed through. Jazz Brown described the location of the fire as follows:

Q"When was the first not when, but where did you observe the fire for the first time? [*8]

AThe open doorway to the poolroom, where the alley way was, the garbage and the boxes are stored, flames from the second floor level, up top, I observe gushing out and black smoke."

She further testified that there were two employees working the front of the deli. One employee was her cousin William Boyd. She denied that anybody was smoking at the time of the incident. The witness denied the presence of the video game gambling device.

TESTIMONY OF WILLIAM BACKUS

Mr. Backus testified that he is the cousin of Jazz Brown and has known her for a long time. Curiously, Jazz Brown stated that her cousin's last name is Boyd rather than his true last name, Backus.

Like Ms. Brown, he arrived at the deli about 11:30 a.m. Mr. Backus smelled smoke coming in the back entrance of the store. At the time he was situated near the back entrance of the store. He was in the back playing pool. He testified there were six people in the back room at the time. He further testified the smoke came from the alley, not the storage area. It took 10 minutes for everyone to get out of the store. Mr. Backus stated that only a pool table was in the back, no jukebox and video game. He testified the fire started between 1:00 p.m. and 2:00 p.m.

DECISION

After a careful review of the testimony and exhibits, this Court finds that Paragraph 8(A) of the Lease controls because the fire was due to the conduct of the Tenant's agents, employees, or invitees. This Court finds that the testimony of Mr. Mennella was creditable and supported his findings that the fire was caused by human activity, either by arson or through cigarette smoking. The Court finds the testimony regarding multiple points of origin particularly persuasive. The Court finds that the testimony of Respondent's two witnesses, Jazz Brown and William Backus, to be false and without merit. Both of Respondent's witnesses place the time of the fire at between 12:30 p.m. and 2:00 p.m. which is at odds with the report of the Nassau County Fire Marshall, Bureau of Fire Investigation, which placed the fire at 17:15 (5:12 p.m.).

Furthermore, Mr. Mennella carefully examined the premises and was able to determine that [*9]the fire started in the storage area and that there were multiple fires. This testimony is in contrast to Respondent's two witnesses who placed the origin of the fire on the outside of the building in the alley way.

This Court is aware of a number of cases which have denied recovery to a plaintiff where there is a failure of proof as to causation of the fire. In Easy Shopping Corp. v. Sneakers Center and Sports, Inc., 303 AD2d 361, 755 NYS2d 658 (2nd Dept, 2003), recovery was denied because the claim that the gas space heater in defendant's store caused the fire was "purely speculative." Likewise, in Public Service Mutual Insurance Company v. 99¢ Plus of Fifth Avenue, 5 AD3d 276, 277 NYS2d 679 (1st Dept, 2004), the court dismissed the claim where there was no evidence to demonstrate that the fire started in the stairwell due to defendant's employee smoking 10 minutes before.

In Tower Insurance Company of New York v. M.B.G., 288 AD2d 69, 733 NYS2d 20 (1st Dept, 2001), the court upheld the granting of summary judgment to the defendant where:

Plaintiff claims that an issue of fact exists as to whether defendant's negligence caused the fire. It is argued that such issue is raised by evidence that the fire started in a back room of the store under defendant's exclusive control, that the individual defendant, the store's owner and manager, admittedly smoked a pack of cigarettes a day in the back room, and that the Suffolk County Police Department, which investigated the accident, reported that while the cause of the fire could not be determined, "it could have been caused by an errant lit cigarette left on the shelf in the back room." However, such evidence is insufficient to raise the issue of fact claimed. To infer that defendant caused the fire because he normally smoked in the area where the fire started is to indulge in unwarranted speculation (see, Matter of Burton v. Broadcast Music, 31 AD2d 577, aff'd 24 NY2d 1016; Broder v. MacNeil, 232 AD2d 163, 166, lv denied 88 NY2d 816).

Other cases where the complaint has been dismissed due to lack of proof of what caused the incident include: Cataract Metal Finishing, Inc. v. City of Niagara Falls, 31 AD3d 1129, 818 NYS2d 409 (4th Dept, 2006), affidavit of plaintiff's hazardous material expert as to the cause of the fire was too speculative; Travelers Property Casualty v. Gomez Supermarket, 195 Misc 2d 876, 760 NYS2d 614 (App Term, 2nd Dept 2003), no proper evidence to prove cause of fire and court declined to invoke res ipsa loquitur to place blame for fire; and IDE Pontiac, Inc. v. D.V.G. Electrical General Contractor, 298 AD2d 912, 747 NYS2d 848 (4th Dept, 2002), cause of explosion not properly attributed to gas leak by either unsworn fire investigator report or opinion of plaintiff's expert that leak resulted from the failure of defendants to inspect and maintain the natural gas appliances and piping.

The facts of the case at bar however are more akin to those in Mayorga v. City Express Corp., 298 AD2d 563, 749 NYS2d 52 (2nd Dept, 2002), wherein the court stated:

Where there are various possible proximate causes of an accident, a party "need only prove [*10]that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency" (Gayle v. City of New York, 92 NY2d 936, 937, 680 NYS2d 900, 703 NE2d 758; see Schneider v. Kings Highway Hosp. Ctr., 67 NY2d 743, 500 NYS2d 95, 490 NE2d 1221; Wragge v. Lizza Asphalt Constr. Co., 17 NY2d 313, 321, 270 NYS2d 616, 217 NE2d 666).

Mr. Mennella, who was deemed an expert by this Court, determined that the fire originated in the storage area where the bottles were stored. He testified that human activity caused the fire through either arson or through a thrown cigarette. Significantly, he was able to exclude all other causes of the fire. Access to the social room was restricted. The Court recognizes that the cause of this fire is based upon circumstantial evidence, but the Court is satisfied that the fire was caused either intentionally or accidentally, by one of Respondent's invitees present at the time the fire began.

The Court finds Mr. Mennella's testimony is not speculative and distinguishes this case from the other cases discussed above where the plaintiffs failed to present prima facie evidence of the causes of the incidents involved.

In Spett v. President Monroe Building & Manufacturing Corp., 19 NY2d 203, 278 NYS2d 826, the court enunciated the legal principal on circumstantial evidence which applies to the case:

"Circumstantial evidence is sufficient if it supports the inference of causation or of negligence even though it does not negative the existence of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent. 'It is enough that he [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred."' (Dillon v. Rockaway Beach Hosp., 284 NY 176, 179, 30 NE2d 373, 374). This court has on numerous occasions upheld jury verdicts where it could not be established by direct evidence that the defendant was in fact responsible for the condition causing plaintiff's injury but the probability that under all the circumstances defendant was not responsible was slight. (See, e.g., Jackson v. Associated Dry Goods Corp., 13 NY2d 112, 242 NYS2d 210, 192 NE2d 167; Garippa v. Wisotsky, 305 NY 571, 111 NE2d 443; Hughes v. Borden's Farm Prods. Co., 252 NY 532, 170 NE 132; see, also, Fisch, New York Evidence, § 216, p. 119.)

STALENESS DEFENSE OF RESPONDENT

Respondent raised the defense of staleness or laches on the part of Petitioner to bring this proceeding in a more timely manner. The fire occurred on May 13, 2007 and Petitioner commenced this proceeding in November of 2008 to recover rent due and owing from June of 2007 forward. Respondent failed to set forth a factual basis to show either prejudice or detrimental reliance resulting from this delay. See Bissell v. Pyramid Companies, 125 AD2d 876, 510 NYS2d 462 (3rd Dept, 1986), holding the landlord was not estopped from claiming the imposition of a 3 year retroactive balloon payment representing adjustment for utility services when tenant failed to prove [*11]factually prejudice or detrimental reliance.

In 269 Associates v. Yerkes, 113 Misc 2d 450, 449 NYS2d 593 (Civ Ct, NYC 1982), the court refused to invoke the doctrines of equitable estoppel and laches where the landlord made timely demands for rent on a continuous basis which "thereby renders the rent claims current despite the fact that summary proceedings were never commenced . . . "

In 269 Associates the landlord waited 29 months before commencing summary proceedings. The Court found there was no showing of prejudice to the tenant.

In the case at bar, Petitioner testified that he regularly demanded rent from Respondent which brings this case within the holding of 269 Associates.

Furthermore, this Court notes that in 501 Seventh Ave. Associates v. 501 Seventh Ave. Bake Corp., 2002 WL 31065240, 2007 NY Slip Op 50362 (Civ Ct, NYC 2002), the court held that laches doesn't apply to commercial summary proceedings:

Respondent's second affirmative defense of laches is without merit. The Appellate Term has held that the doctrine of laches is only applicable in a residential nonpayment proceeding and does not apply to commercial summary proceedings. (U.B.O. Realty Corp. v. Fulton, NYLJ 9/8/93 p 21 col 1). Moreover, to establish a laches defense, respondent must show that petitioner unreasonably and inexcusably delayed bringing the proceeding to the prejudice of the respondent. (See 269 Associates v. Yerkes, 113 Misc 2d 450, 449 NYS2d 593 [NY Civil Ct 1982]). Respondent cannot establish this.

Similarly, the court in South Street Seaport v. Ry-Allie Candy Corp., 14 Misc 3d 1208, 836 NYS2d 490 (Civ Ct, NYC 2006), the court makes clear that laches doesn't apply to commercial summary proceedings.

ALL OTHER DEFENSES OF RESPONDENT

The Court finds all other defenses posed by Respondent to be incredible and without merit.

CONCLUSION

Petitioner is therefore awarded a judgment of $52,332.00 for rent owed from June of 2007 through February of 2009. The Petitioner is also awarded a judgment of possession with the warrant stayed until May 31, 2009.

So Ordered:

[*12]/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:May 1, 2009

CC:Martin Katzman, Esq.

Leonard Rodney, Esq.