174 LLC v Roberts
Annotate this CaseDecided on November 22, 2005
Civil Court of the City of New York, Bronx County
174 LLC, Plaintiff,
against
PEARL ROBERTS, Defendant.
83464/03
For PlaintiffTodd Rothenberg, Esq.
For DefendantRogers, Wughalter & Kaufman by Julian Kaufman, Esq.
Lizbeth González, J.
The plaintiff in the underlying action seeks $25,000 for property damage caused by a fire in the defendant's apartment on 3/04/03. The subject premises is located at 54 West 174th Street, Apartment 3-G, in Bronx County.
FIRE SOURCE
Fire Marshall Frederick Heffel testified that he has worked with the Fire Department of New York for the past 18 years and its Fire Marshall City-Wide Investigations Unit for the past three years. In his expert opinion, fires burn at an angle in the shape of a "V" leaving a pattern that can be analyzed to determine the source of a fire. In his capacity as a fire investigator, Marshall Heffel traveled to the fire scene, located the "V" and investigated the fire's burn pattern on the date of the incident.
This fire originated in the defendant's bedroom. Marshall Heffel examined the bedroom outlet to which a burnt curling iron was still plugged. He removing the outlet's face plate, examined the wiring and determined that neither the electric outlet nor the wiring were at fault. After ruling out other possible sources such as candles, cigarettes or children playing with matches, Marshall Heffel determined that a curling iron in the defendant's bedroom caused the fire. Curling irons (also known as "hot combs") generate intense heat capable of igniting combustible items. The burnt curling iron in question was at the base of the "V" where the fire originated in the midst of combustible items.
Defendant Pearl Roberts testified that she pays rent to 174 Realty LLC, her landlord. She has lived in her apartment without incident for the past 24 years. She stated that the apartments in the building, including her own, were re-wired prior to the fire. According to Ms. Roberts, the [*2]curling iron belongs to her daughter, who stores property in her mother's apartment because she is currently homeless. The curling iron was allegedly stored in a plastic box against the wall on top of a crate in the defendant's bedroom. Ms. Roberts left her home on the morning of the incident and traveled to the hospital where her daughter was giving birth. The fire occurred in her absence. Ms. Roberts stated that the curling iron was on the floor when she returned from the hospital. The plastic container where the iron was normally stored had been thrown out the window into the courtyard along with other things that were burned. The respondent blames the plaintiff's re-wiring of the building for the fire. No expert witness was produced to rebut the Fire Marshall's testimony.
BEST EVIDENCE RULE
The best evidence rules requires litigants to produce original writings at trial. Copies of original writings are "not admissible at common law unless a proper foundation for secondary evidence is first laid." (Prince, Richardson on Evidence §10-109 [Farrell 11th ed.) Armando Tabarroni, the plaintiff's agent, produced a copy of the lease renewal signed by Ms. Roberts and plaintiff 174 LLC dated 2/24/04 as proof of the landlord-tenant relationship between the parties. A business record foundation for the copy was properly laid. By way of objection, the respondent cited the best evidence rule since the absence of the original document was unexplained. The Court reserved decision at trial and now holds that the plaintiff correctly referenced CPLR §4539 for the proposition that a copy of an original record may be introduced into evidence so long as a business record foundation is properly laid. The copy of the renewal lease is accordingly accepted into evidence over objection.
CPLR 4539 creates an important exception to the best evidence rule for copies of documents made by an accurate reproduction process, such as photocopying, provided the documents are those of a business and the copying was done in the regular course of business. The proponent is thus exempt from the requirement of producing the original or explaining its absence.
(Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4539:2.)
[*3]LIABILITY
A tenant in possession has a duty to the landlord to exercise ordinary care to keep the premises in good order except for ordinary wear and tear. (74 NY Jur 2d Landlord and Tenant §203; 1 Dolan, Rasch's Landlord and Tenant Incl. Summary Proceedings §15:6 [4th ed].) Failure to exercise such ordinary care renders a tenant liable in damages for the waste of the premises caused by her negligence. (Robinson v Wheeler, 25 NY 252 [1862].)
Negligence is the unintentional breach of a legal duty causing damage which is reasonably foreseeable and without which the damage would not have occurred. (79 NY Jur 2d Negligence §1.) In order to make out a prima facie case of negligence, a plaintiff must demonstrate three elements: a duty owed by the defendant to the plaintiff, a breach of that duty and an injury suffered by the plaintiff that was proximately caused by the breach. (Murray v NYC Housing Authority, 290 AD2d 288 [1st Dept 2000].) The plaintiff must further establish that the injury was reasonably foreseeable at the moment the defendant engaged in the harmful activity. (79 NY Jur 2d Negligence §13.) Whether a negligent act of commission or omission can be attributed to a defendant may depend on whether the defendant was in charge of, and had the direction and control of, the activity causing the damage or the site where the accident occurred. (79 NY Jur 2d Negligence §11.)
This Court credits the expert testimony of Fire Marshall Heffel's testimony and finds that a hot curling iron ignited combustible items on the defendant's dresser thereby causing the 3/04/03 fire in her apartment. The Court credits the defendant's testimony to the extent that she was not in the apartment at the time of the fire because she had traveled that morning to the hospital where her daughter was in labor. The testimony establishes that the defendant had sole direction and control of her bedroom where the fire occurred. In her capacity as the petitioner's tenant, the defendant assumed the duty of exercising ordinary care to unplug the curling iron before leaving the apartment. The defendant's negligence is established by virtue of the fact that the curling iron, located at the base of the "V" burn formation, was plugged into the electrical outlet at the time of the fire marshall's investigation.
PROPERTY DAMAGE
Armando Tabarroni, the plaintiff's agent, credibly testified that he visited the building on the afternoon of the fire and saw that the apartment was badly damaged by the fire. He visited the apartment a week later in March 2003 to assess work orders for the renovation and a third time in June 2003 while construction was underway. The cost of the extensive repair work was paid by Kiwi 1 LLC and Chestnut Holdings, neither of which is a party to this proceeding. No bills or statements were offered by the plaintiff to establish that it reimbursed either non-party for the repairs.
CONCLUSION
After careful review of the testimony and documents, this Court finds that plaintiff 174 LLC is the defendant's landlord. The plaintiff proved by a preponderance of the credible evidence that the defendant's negligence was the proximate cause of a fire in her apartment on 3/04/03. The fire [*4]was the reasonably foreseeable result of the defendant's failure to unplug a curling iron from the electric outlet in her bedroom. The plaintiff is not entitled to recover for the property damage, however, since it failed to prove that it paid for the cost of the repairs.
This constitutes the decision and order of this Court.
Dated: November 22, 2005
So ordered,
___________________
Lizbeth Gonzalez, JCC
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