A & L Gift Shop v ASA Waterproofing Corp.
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A & L Gift Shop v ASA Waterproofing Corp. 2005 NY Slip Op 30482(U) December 2, 2005 Supreme Court, New York County Docket Number: 100405/02 Judge: Herman Cahn Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] - NEW YORK SUPREME COURT OF THE STATE OF NEW YORK COUNTY PART Aq PRESENT: Justice @04b INDEX NO. MOTION SEQ. N O . ;%-Q v2 rJ \ n c ,\ ( >p,&l ., - ?-a ( MOTION CAL. NO. PAPERS NUMBERED rn Answering Affidavits im-5 were read on this motion to/for The following papers, numbered 1 to Notice of Motion/ Order to Show Cause i& ///ZI MOTION DATE ($3 R-LdLLk4. < 3 - Affidavits - Exhibits ... Exhibits Replying Affidavits Cross-Motion: E l Yes 1.1 No Upon the foregoing papers, it is ordered that this motion I Check if appropriate: 0 DONOTPOST , fl . .. . . --- . I REFERENCE- [* 2] SUPREME COIJRT OF THE STATE OF NEW YORK IAS PART 49 COUNTY OF NEW YORK: ................................................................................. X A & 1) GIFT SHOP, ROK LEI PO I KAIIING, INC., CHTNATOWN c w r CENTER, CHIJNG WAH PHARMACY CORP., D & V IMPORT, INC., EVERGREEN SHANGHAI : Index No. 100405/02 RESTAURANT, FIRST ORIGINAL, INC,, FU LONG : TRADING CO., GOLDEN LAKE GIFT SJIOP, GOOD FIELD TRADING CO., INC., HEALTI1 I OWN, INC., IIONG CITY, INC., HOUSE OF VEGETARIAN RESTAURAN I , KAM TA17 : TRADING, INC., LUCK SHING COKP., M I C I ~ E L , ~ , Crip r E~S CXN I ER, MOU Cl IEONG VISION CENTER, INC., NEW BIG : WONG RESTAURANT, NEW CROWN INC., NEW EASTERN VTT,T,A RESTAURANT, TNC., WONG SONG EN I ERI- lIISES, : INC., NEW WONTON GARDEN, ORIENT DELIGHT TOURS & TRAVEL, INC., SHANGHAI GOURMET, SWEET-N-TART : RESTAURANT, TEN REN TEA and GINSENG CO., INC., WAH KTJE & CO., WETGE KTSSTIE INC., Plaintifk, - against ASA WATERPROOFING CORP., KAIFAT ALI, GALAXY GENERAL CONTRACTING CORP. and SUN WANSAM REALTY CORP., Herman Cahn, J. D e h d a n t Sun Wansam Realty Corp. moves lor partial summary judgrncnt, dismissing the claims for economic loss. In the alternative, movant seeks to preclude Plaintiffs from ofrering evidence in support of their claim of economic loss, due to their failure to comply with this court s Preliminary Confcrcncc Order. A basic issuc in this action is whcther a plaintiff can bring claims for solely economic loss, without suffering injury to person or property. 1 [* 3] Bnckgro un d: This action arises out of an incident that occurred at 60 Molt Street, New York, NY on August 3, 2000. Dcfendant ASA Waterproofing Corp. s employees, while cleaning the facade of Defendant Sun Wansam Realty Corp. s building, released an acidic compound. Plaintifh, who are business owners on Mott Street, allege that such compound resulted in a toxic cloud and a spill on the sidewalk on Mott Street. Plaintiffs allege that Mott Street was consequently closed lor the balance of the day and that they suffered damage to their Mott Strcct properties. Plaintiffs seek to recover compensatory damages and exemplary damages for propcrty dainagc and for loss of busincss and profits duc to thc strcct closing. Only two Plaintiffs, Luck Shing Electronics Corp. and Wong Song Enterpriscs, Inc., allege property damage. l hc coniplaint contains two causes of action; one sounding in negligcnce and thc other based on violations of the NYC Administrative Code, which violations Plaintiffs allege also constitute a public and private nuisance. Only defkndmt Sun Wansani answercd and appcarcd in this action. This del endant served a demand f i x a bill of particulars on January 25,2002. A bill of particulars was served on March 10,2003. Subsequently, at a January 21,2005 preliminary conference, this court ordcrcd Plaintiffs to scrvc a Supplcmcntal Bill of Particulars, detailing thcir rcspectjvc claims and providing gross receipts for the week before the incident and for the day of the Plaintiffs allcgc that tlic City of Ncw York Enviroimcntal Control Board charged Dcfciidant with violating sections 24-609 (b) and 27-1 009 (a) of thc Administrative Code. Section 24-609 lays out the notification requirements upon release of certain hazardous substances, while section 27-1 009 (a) requires contractors to incorporate safety measures to safeguard persons and property. 2 [* 4] incident, as well as records proving actual losses and insurance claims. Defendant alleges that Plaintills did not comply with this order and did not serve a supplemental bill of particulars. Additionally, Defendant alleges that thc only evidence that Plaintiffs provided in support of tlicir claim of lost business werc sales tax returns [or six of tlic twcnty-eight plaintiffs, and the depositions of two of the plaintiffs. Plaintiffs answer that the reason they have not fully complied with thc discovery order is because o l a language barrier bctween nttorncy and client, and plcdge to complete discovery. Discussion: Neplipeiice Plaintiffs assert that Dcfcndants negligence caused or allowed a toxic spill on Mott Street, which caused the closure of Mott Street to pedestrians and vehicles, resulting in the loss of income and proiits. In the circumstances underlying this action, an alleged tortfcasor s liability fbr negligence extends only to those plaintiffs who suffer personal injury or property damage, not to those who sufkr only economic loss (532 Madison Avenite Gczurrnel Foods, Inc. v. Finlundiu C enkr, Innc., 96 N.Y.2d 280,291, reurg denied 96 N.Y.2d 938 [2001]; Roundahoul Theater. C ompany, Inc. v. Tishmun & C onslruclion, 302 A.11.2d 272 [ 1 Depl. 2003]). The rule bars plaintiffs who suffer only cconomic losses regardless of how proximate the plaintiffs property is to the defendant s property, from recovcry (Roimduhoul Thealer C ompany, k., 302 suprci, A.D.2d at 272). Whcrc strccts are closed resulting in economic loss, no arbitrary liiic will be drawn to allow storcfront mcrchant-neighbors who suffered lost income to rccover, while excluding others, such as supplicrs unable to reach the blocked-off strcet (532 Mudison Avenue, supra, at 29 1 ). 3 [* 5] Here, only two PlaintXfs allege property damage, in addition to cconomic loss. Therefore, despite their proximity to Delendants property, all Plaintiffs but those two have failed to state ;L cause of action for ncgligcncc, and the negligence cause of action is strickcn as to them. Public Nuisnn ce Plaintiffs also assert that the release of the toxic substance into the surrounding area of Mott Street constitutes a public nuisance for which thcy may rccover for economic loss. A public nuisance consists of conduct or oinissioiis which offend, interfire with or cause damage to the public in the cxcrcisc of rights common to all . . . in a inamicr such as to oflend public morals, interfere with use by the public of a public space or endanger or injure the propcrty, licaltli safcty or conifod oP a considerable number of persons (Cbpart Indus. v. C:onsoli~luted~~iiison 41 N.Y.2d 564, 568, reclrg denied 42 N.Y.2d 1102 [1977]). An Co., unlawful obstruction of a public street may constitute a public nuisance (532Madison,supru, at 292 -293). Howcvcr, a private person must sufkr a special injury beyond that of the community at largc to maintain a cause of action in public nuisance (id.). The injury must bc special in kind, not mcrcly in dcgree (id.at 293-294; See ulso Restatement 2 of I orts 8 82 IC, comment 11). I hc community at large o f a closed street consists of every pcrson who lives or docs busincss on that street. (id.at 294). Here, Plaintiffs assert that tlicy suffcred special damages for their economic loss. Plaintiffs wrongly identify thc community at large as the entire Chinatown community. Rather, tlic coniniunity at large consists o l those persons doing business or living on Mott Street. I hercforc, it is not rclevant whether persons in other parts of Chinatown suffered siinilar economic damages. Additionally, while Plaintiffs may have suffered greater damages in degree 4 [* 6] than other persons who do business on Mott Street, they suffered the same damages in kind. For exaniplc, hot dog vendors and taxi drivers on Mott Street suffered the same kind of injury as the Plaintilk, as each was impacted in the ability to conduct busincss, resulting in financial loss (532 Madison, supra, at 293). Additionally, the injury is no different than the damagcs suffered by thosc Mott Strcct tcnaiits unablc to reach their residences (id.).Therefore, all Plaintiffs suffered darnages common to the community at large and cannot maintain a cause of action for public nuisancc to recover for cconomic loss.2 Private Nuisance: Plaintiffs also assert that the release of the substance 011 Mott Strcet constitutes a private nuisancc for which they may recover for cconomic loss. A private nuisance consists olconduct which results in interference wjtli otic or relativcly fcw pcrsoiis privatc usc and cnjoymcnt of land (Copart /ndus., supra, 41 N.Y.2d ai 564). The conduct must either 1) be intentional and unreasonable, 2) amount to ncgligence, or 3) amount to absolute liability for abnormally dangerous conditions (id.at 569). I hccausc of action for private nuisance docs not lie bccausc Plaintiffs have not alleged that Defendants conduct amounted tu any of the above categories. Plaintiffs do not allcgc that DefendLants7 conduct was Further, as stated abovc, thosc Plaintiffs . - While a plaintiff who suffers propcrty damage can recover under a thcory of ncgligence for economic loss as wcll, as explained above, Plaintiffs have cited thc court to no authority suggcsting that this cxtciids to nuisance. lhereforc, even those Plaintiffs claiming property dainage cannot recover for ecoiioniic loss under nuisance theory, as that cconoinic loss is common to the coniinunity at large (532 Mudison, szipru, at 293). It should be noted that Plaintiffs do allcgc that Ilcfcndant s conduct constitutes an absolute nuisance. Absolute nuisance or nuisance pcr se rcquircs intentional and unreasonable conduct (McKenna v. Allied Chemical and Dye Corporation 923-924, 8 A.D.2d 463 [4t Dept. 19591). However, Plaintiffs allegc absolute nuisance based not on intentional and unreasonable conduct, but rather, incorrectly based on a violation of tlie Administrative Code. 5 [* 7] claiming only economic loss cannot maintain a cause of action in ncgligcncc. In addition, those Plaintiffs claiming only ecoiioiiiic loss cannot maintain a cause of action for strict liability for abnormally dangerous conduct because they do not allege property damage, which is an element ofthat cause of action (532 Mdison, supru, at 292 n 2; S E C Spnno v Perini Corp , 25 N.Y.2d 1 1 , 18 [ 19691j. Thercforc, those Plaintiffs who allege only economic loss cannot maintain a cause of action for Private nuisance. In any case, the causc of action for nuisance to recover lor economic loss does not lic bccause inore than a relativcly few pcrsons were affected by the closing ol the street (Copart Indus., supra, 41 N.Y.2d at 564). As stated abovc, thc cconornic loss was common to the comiunity at large. Rcsidcs the twenty-eight Plaintiffs, all taxi drivers or suppliers delivcring to that street were also affected. Thus, niorc than ( arelatively few persons were affected with economic loss. Therefore, even those Plaintiffs that claini property damages cannot maintain a cause of action for Private nuisance to recover for economic loss. Violation of the Administrative Code Plaintiffs claim that Defendants violations of the Adiniiiistrative Code entitle Plaintiffs to recover damages for economic loss. Plaintifls base this claim on thcorics of absolute nuisancc and negligence per se. A violation of the Administrative Code, while not amounting to ncgligeiice per se, is evidence of ncgligcnce (Effiorv. Cily cdNew York, 95 N.Y.2d 730, 734-735 [2001]). Neither Section 24-609 (h) iior Section 27-1009 (a) of the Adniinistrativc Codc changes the law with regard to claimants only alleging economic loss. In other words, those . ... See Note 2. 6 [* 8] sections of the Administrative Code, while perhaps constituting evidence of negligencc, do not create any new duty to thosc persons alleging only economic loss. Therefore, even with the a1lcgcd violations of the Administrative Code, Plaintiffs still cannot maintain a causc of action for ncgligcncc. Similarly, those scctions of the Adrninistrativc Codc do not change the elements necessary to maintain a cause of action for absolute nuisance. Thus, as Plaintills do not allege that Defendants conduct was intentional, Plaintiffs cannot maintain a cause of action for absolute nuisance. Preclusion Ilcfcndant, in thc alternativc, I ~ O V C S preclusion of cvidencc in support of all for claims of economic loss. As this court dismisses all claims by those Plaintills who alleged only economic loss, the issue of preclusion is relevant only to thosc two Plaintiffs that allcgc property damages in addition to cconornic loss. The motion to preclude is granted as to the two plaintifis who allege property damage, unless thcy fully comply with the discovery demands previously scwcd on their attorneys within ten days of the scrvice of a copy of this decision, on their counsel. Accordingly, it is ORDERED that the branch of the motion sccking suminary judgment is granted as to all plaintiffs cxccpt as to Luck Shiiig Electronics Corporation and Wong Song Entcrpriscs, Inc.; and it is further OIi1)E;:KE:Uthat thc branch olthe motion seeking sunimaryjudgnient as to I x k Shing Elcctronics Corporation and Wong Song Enterprises, Inc., is grantcd as to thc cause of action seeking damages for nuisance; and it is lurther 7 [* 9] ORDERED that the branch of the motion seeking preclusion is denied as to all dekndants except Luck Sling Electronics Corporation and Wong Song Enterprises, Tnc., as to whom it is grantcd uiilcss said dcfcndants comply with plaintiffs discovcry demands within ten days of servicc of a copy of this order on plaintiffs attorney, with Noticc of Entry; and it is hther ORDERED that the clerk shall enter judgment accordingly; and it is further ORDERED that the balance of the action niay continue. Dated: Dcccmhcr 2.2005 E N 1 E R : 8
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