Rodriguez v Pelham Plumbing & Heating Corp.

[*1] Rodriguez v Pelham Plumbing & Heating Corp. 2004 NY Slip Op 51922(U) [18 Misc 3d 1137(A)] Decided on December 3, 2004 Supreme Court, Bronx County Gonzalez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2004
Supreme Court, Bronx County

Ruddy Rodriguez and Marlene Rodriguez, both infants by their mother and natural guardian, Mayra Rodriguez, and Mayra Rodriguez, individually, Plaintiffs,

against

Pelham Plumbing & Heating Corp., Present Rucon Properties, LLC, Dean's West Side Contracting Corp., M. Land Used Refrigerator Corp., and Bruckner Plumbing & Heating Corp., d/b/a Bruckner Heating Ltd., Defendants.



8157/00



Trolman, Glaser & Lichtman, PC

777 Third Avenue

New York, NY 10017

Boggeman, George, Hoges & Corde, PC

11 Martine Avenue, Ste. 920

White Plains, NY 10606

Wade, Clark, Mulcahy, Esqs.

111 Broadway

New York, NY 10006

Dennis L. O'Connor

O'Connor, McGuinness, Conte, Doyle & Oleson

One Barker Avenue, Ste. 675

White Plains, NY 10601

Marshall, Conway & Wright, PC

116 John Street

New York, NY 10038

Leahy & Johnson, PC

120 Wall Street

New York, NY 10005

Michael F.X. Manning, Esq.

14 Wall Street, 10th Floor

New York, NY 10005

Yvonne Gonzalez, J.

This action arose as a result of personal injuries sustained on December 9, 1999, by infant plaintiffs, Ruddy Rodriguez and Marlene Rodriguez, when a stove tipped and heated food spilled onto them. It is undisputed that an anti-tip device was not installed on the pertinent stove. In independent motions, defendants, Pelham Plumbing & Heating Corp., (hereinafter, "Pelham"), Dean's West Side Contracting Corp., (hereinafter, "Dean"), M. Land Used Refrigerator Crop., (hereinafter, "Land"), Bruckner Plumbing and Heating Corp. d/b/a Bruckner Heating, LTD, (hereinafter, "Bruckner"), and third-party defendant, Brown Stove Works, Inc., (hereinafter, "Brown"), move pursuant to CPLR §3212, for summary judgment dismissing the plaintiffs' complaint and all cross-claims. In its omnibus motion, Brown also seeks to strike the supplemental third-party bill of particulars, and dismissal of the third-party complaint on [*2]grounds of spoliation of evidence. Said motions are hereby consolidated for purposes of decision and disposition.

Land delivered the subject stove to the premises owned by defendant, Rucon Properties, LLC., (hereinafter, "Rucon"). Rucon contracted with Bruckner to check for gas leaks and re-light the pilot light. Rucon contracted with Pelham to install new water pipes running behind the stove, and Pelham in turn, sub-contracted with Dean to do finish work, left by Pelham in its installation of new pipes. Brown manufactured the pertinent stove. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001]; Pulka v Edelman, 40 NY2d 781, 782 [1976]....As we have often said, the existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations (see e.g. Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585-586 [1994]; Eaves Brooks Costume Co. v Y.B.H Realty Corp., 76 NY2d 220, 226-227 [1990]).

.... [There are] three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launche[s] a force or instrument of harm" (Moch, 247 NY at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (see Eaves Brooks, 76 NY2d at 226) and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Palka, 83 NY2d at 589). These principles are firmly rooted in our case law, and have been generally recognized by other authorities (see e.g. Restatement [Second] of Torts § 324A).

Espinal v. Melville Contrs., 98 NY2d 136, 138-140 (2002).

With respect to the four contractor/defendants, Land, Bruckner, Pelham and Dean, there is no evidence that any of the contractors, entirely displaced any other party's duty to maintain the premises safely, nor is there any evidence that plaintiffs detrimentally relied on the continued performance of the contractors' duties. With respect to whether any of the contractors, failed to exercise reasonable care in the performance of their duties, and consequently, launched a force or instrument of harm, an individual analysis follows.

LAND

Ira Gordon, vice-president of Land at the pertinent time, testified at his EBT, that the receipt for the subject stove indicates that the flexible hose to the stove was hooked up, but the stove was not installed. (Gordon transcript, page 17). Gordon further testified, that the receipt indicates that Land was not paid to install the anti-tip device. Accordingly, Land had no [*3]contractual duty to install an anti-tip device. There was no submitted evidence of any failure of Land to exercise reasonable care in the performance of their contractual duties, nor any evidence that Land launched a force or instrument of harm resulting from its performance of its contractual obligation to deliver the stove and connect the gas to the stove. "It is axiomatic that in opposing a motion for summary judgment, a defendant, confronted by a prima facie showing of entitlement by a plaintiff, must demonstrate the presence of actual issues of fact. Such a defendant is required to assemble, lay bare and reveal his proofs in order to show that his defenses are real and capable of being established on trial, Chemical Bank v Queen Wire & Nail (75 AD2d 999), and it is insufficient to merely set forth averments of factual or legal conclusions." Machinery Funding Corp. v Stan Loman Enterprises, Inc., 91 AD2d 528 (1st Dept 1982). Accordingly, Land's motion for summary judgment is granted.

BRUCKNER, PELHAM AND DEAN

With respect to the remaining three contractors, Bruckner, Pelham and Dean, there is no evidence to even suggest that any of these contractors were under contractual duties to install an anti-tip device. Therefore, there is no basis for any claims against said defendants for not installing an anti-tip device.

Rodriguez testified that the holes that were drilled near the stove, were the cause of the instability of the stove, and testified that these holes, and the placement of the stove, ultimately resulted in or contributed to the tipping of the stove. Thus, at issue is whether there is any evidence indicating that any or all of these contractors failed to exercise reasonable care in the performance of their duties, and therefore launched a force or instrument resulting in harm to plaintiffs.

Bruckner's supervisor at the pertinent apartment building, and Bruckner's president both aver that Bruckner's work for the entire building was completed by July 6, 1999, five months prior to plaintiffs' injury, and four and half months prior to when Rodriguez testified that the stove became wobbly. Mayra Rodriguez, (hereinafter, "Rodriguez"), testified that the stove became unstable about a week and a half before the accident. (Rodriguez 3/1/02 trans. p. 103).

Said assertions are supported by documentary evidence. The deposed mechanic for Pelham, testified that Bruckner was finished with its work in the building when Pelham began its work. (Dineen trans. p. 20). Bruckner has met its burden in establishing its prima facie entitlement to summary judgment as a matter of law.

The only evidence even suggesting that Bruckner was in plaintiff's apartment after July 6, 1999, was the testimony of Rodriguez that the gas contractor was working on the pipes at the time that the stove became unstable. The source of Rodriguez' knowledge was inadmissible hearsay statements that only gas pipes were replaced, not water pipes. (Rodriguez 12/17/02 trans. p. 79-80) Rodriguez had no independent knowledge of who was working in and around her apartment at the time the stove became unstable. In the absence of any evidence of Bruckner's causation of plaintiffs' injuries, Bruckner's motion for summary judgment is granted.

With respect to Pelham's motion for summary judgment, the motion is denied. Dineen, a mechanic for Pelham, testified that Pelham moved the stove to break up the floor to run piping, and then moved the stove back. (Dineen p. 31-32) Dineen moved the stove twice. (Dineen, p. 48). Dineen testified that Pelham was still working in the building on the day of plaintiffs injuries, December 9, 1999. He testified that on the day of plaintiffs' injuries, the remaining work to be done in the subject apartment was to "close the pipes, box them off." (Dineen, p. 39). [*4]Dineen did not know if Pelham had to return to the subject apartment to complete any work. Therefore, there is an issue of fact as to whether Pelham failed to exercise reasonable care in the performance of its duties, which included moving and returning the subject stove to a stable position.

With respect to Dean's motion for summary judgment, the motion is granted. Dean established its prima facie entitlement to summary judgment by the testimony of Dean's foreman at the pertinent time. Stephen Messina stated that the photograph of the plaintiff's kitchen indicates that no finish work had been conducted in plaintiff's apartment and therefore, Dean had not been in plaintiff's apartment prior to the plaintiffs' injuries. (Messina trans. p. 27). In opposition to Dean's motion no evidence whatsoever has been submitted. It is mere speculation to conclude that since Pelham and Dean worked in "conjunction," it is possible that Dean moved the stove into an unstable position prior to plaintiff's injuries. (Angrisani trans. p. 22). It has been repeatedly held that "one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegation or assertions are insufficient." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

BROWN

That branch of Brown's motion that seeks to strike the supplemental third-party bill of particulars dated February 9, 2004 on the grounds that it is an improper, late amendment of the bill of particulars, is granted to the limited extent that the penultimate sentence in paragraph 3, in which Brown is alleged to be negligent in failing to provide bilingual manuals, is struck. It is clear that this is a new and novel claim, that is more clearly deemed an amendment. The prejudice to Brown is manifest in this case where the note of issue is filed. As elucidated by Brown, had a failure to provide a bilingual manual been alleged prior to the filing of a note of issue, Brown could have sought disclosure with respect to whether Mayra Rodriguez had been provided with a manual, whether Mayra Rodriguez tried to read the manual, and whether plaintiff would have changed her conduct if the manual were in Spanish. With respect to the rest of the language supplementing paragraph 3, the claims are merely further specification of previously alleged negligence. Sua Sponte, third-party plaintiffs, Rucon, are directed to further particularize what is meant by the word "strange" in the last sentence in paragraph 3, and part of the phrase, "strange compartment."

That branch of Brown's motion that seeks summary judgment based upon the spoliation of the subject stove the motion is granted to the limited extent of dismissing that part of plaintiffs' claims that allege the negligent manufacture, assembly, selling and distribution of the subject stove. However, allegations of Brown's negligence in the design and in provision of warnings for the model stove that is the subject of this action is unaffected by the spoliation of this particular stove. Therefore, allegations of Brown's negligence in the design and provision of warnings survive this motion.

That branch of Brown's motion seeking summary judgment dismissing Rucon's third party complaint is denied on the grounds that issues of fact are created by the conflicting affidavits of the respective experts. With respect to Brown's allegations of negligence against Rucon and second third-party defendant, Milbrook Properties, Ltd., said alleged negligence [*5]merely relates to comparative negligence, and does not necessarily exonerate Brown from negligence, if any.

It should be noted that in an action "to recover from a manufacturer for injuries sustained in consequence of an alleged defect in its product may be said to have but a single claim, that claim may be grounded in one or more of four causes of action or theories of liability. Depending on the factual context in which the claim arises, the injured plaintiff, and those asserting derivative claims, may state a cause of action in contract, express or implied, on grounds of negligence, or, as here, on the theory of strict products liability." Victorson v Bock Laundry Machine Co., 37 NY2d 395, (1975).

CONCLUSION

The motions of Land, Bruckner and Dean for summary judgment dismissing the complaint and all cross-claims as against them are granted. Pelham's motion for summary judgment is denied. Brown's motion is granted to the limited extent provided herein.

This constitutes the decision and order of the Court.

Dated: ____________________________________

Yvonne Gonzalez, J.S.C.