Lovitt v Ypsilon Constr. Corp., Inc.

[*1] Lovitt v Ypsilon Constr. Corp., Inc. 2008 NY Slip Op 50600(U) [19 Misc 3d 1108(A)] Decided on February 25, 2008 Supreme Court, Kings County Jacobson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2008
Supreme Court, Kings County

Tonisha Lovitt, an infant by her mother and natural guardian, Diane Lovitt, and Diane Lovitt, individually, Plaintiff(s),

against

Ypsilon Construction Corp., Inc., et al., Defendant(s).



42879/02

Laura Lee Jacobson, J.

Upon the foregoing papers, defendants Ypsilon Construction Corp., Inc. (Ypsilon) and Phoenix Construction Corp. (Phoenix) (collectively referred to as movants) move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint of plaintiff Tonisha Lovitt, an infant (Tonisha), by her mother and natural guardian, Diane Lovitt, and Diane Lovitt, individually (Diane), along with all cross-claims.

Facts and Procedural Background

Plaintiffs commenced this action against the New York City Housing Authority (the Housing Authority) on January 7, 2002, seeking to recover compensatory and derivative damages sustained on October 17, 2000, when a pot of hot water and grease fell off the stove and burned Tonisha's chest. Plaintiffs reside in apartment 16F in the building located at 335 Sutter Avenue in Brooklyn, a building owned by the Housing Authority and part of the Langston Hughes Apartment Complex. In their complaint, plaintiffs allege that the Housing Authority improperly installed, maintained and/or repaired the stove and the floor of the apartment, causing the stove to be unsteady, uneven and wobbly, which caused the pot to fall and burn Tonisha.

Plaintiffs commenced a second action against Ypsilon and Phoenix on October 15, 2002. By letter of award dated February 24, 1999, the Housing Authority awarded Phoenix a contract to replace the kitchen cabinets, paint and retile the kitchen. George Gizanis is the vice president of Phoenix and the president of Ypsilon. In that complaint, plaintiffs allege that Ypsilon and Phoenix improperly and/or negligently maintained, [*2]managed, controlled, designed and/or repaired the floors and stove at the subject apartment; as a result of the uneven and unlevel floor, the stove was unsteady and wobbly, which caused the pot of boiling water to fall. On December 5, 2002, the Housing Authority commenced a third-party action against Phoenix seeking common law and contractual indemnification.

By order dated June 16, 2003, the two actions were consolidated for all purposes. At that time, the third-party claims asserted by the Housing Authority were converted into cross claims.

The Parties' Testimony

Diane's 50-H Testimony

At her 50-H hearing, Diane testified that the refrigerator was next to the stove in the kitchen and that the floor was covered with linoleum tiles. She described the stove as being "broken down"and "wobbly." The stove shook because the floor was not level; a person would have to touch it in order to observe it wobble. At the time of the accident, Diane was sitting in the living room, eating the sausages that she had just cooked; she had left the pot on the left front burner of the stove. When Tonisha went into the kitchen to get juice, Diane heard her scream and she ran into the kitchen, where she observed the pot on the floor and water on Tonisha's shirt. Diane took Tonisha's shirt off and called 911.

Diane further testified that she had complained about the stove since she moved into the apartment; she complained to the Housing Authority a few times a week. A maintenance worker came up to check the stove more than five times before the subject accident occurred. Tonisha's 50-H Hearing

At her 50-H Hearing, when she was six years old, Tonisha testified that when she was injured, the stove was next to the refrigerator. The stove was shaky; it did not move when anyone walked or jumped up and down in the kitchen, but it shook if the refrigerator door was slammed. Tonisha was asleep in her mother's room and when she woke up, she went into the kitchen to get something to drink and saw a pot on the stove, on one of the back burners. When she pulled on the refrigerator door, she saw it shake, the door opened, she got some juice, she drank it, the stove shook and the pot fell on her. Her mother then came into the kitchen, took her into the bedroom, washed her down with water and called the ambulance.

Tonisha then testified that the stove was wobbly, not the refrigerator; she knew it was wobbly because her teacher had told her. She described the pot as being round and used for boiling; it was not a frying pan. It had a long handle that was facing her.

Tonisha's Deposition Testimony

At her deposition, Tonisha testified that the accident occurred at 5:30 or 6:30 at night. She had been asleep in her mother's room. When she awoke, she went into the living room and asked her mother if she could get something to drink. When her mother said yes, Tonisha went into the kitchen and opened the refrigerator door. Her right foot got stuck underneath the stove, her shoulder hit the stove, the refrigerator and stove started to shake and the pot slid down and hit her.

[*3]Diane's Deposition Testimony

At her deposition, Diane testified that on the day of accident, Tonisha came home from school and took a nap; she was boiling sausages in a pot on the stove. When Tonisha woke up, she went into the living room and watched television; she then asked if she could have a drink. Tonisha walked into the kitchen and Diane heard her scream; she ran into the kitchen and saw that the pot had fallen on Tonisha and Tonisha was on the floor. Diane put cold water on her and called an ambulance.

Diane also testified that prior to the accident, she made a lot of complaints about the stove because it didn't work and because it kept moving, shaking from front to back, and about the floor being uneven. In response, maintenance workers came to repair the stove. At the time of the accident, the door of the stove was broken, so that the bottom part of the drawer was sticking out.

George Waterton's Deposition Testimony

Mr. Waterton testified that he was employed by the Housing Authority since 1985 as a maintenance worker; his duties included repairing equipment in the apartments and around the building. In 2000, he was responsible for 335 Sutter Street and half of 315. Mr. Waterton explained that if there was something wrong in an apartment, the tenant would make a complaint in the office, which would be sent via computer to the assistant superintendent, who would give the maintenance worker a work ticket. The worker would go to the apartment and make the repair, if he could, or request a skilled worker through his supervisor if he couldn't.

Work tickets for plaintiffs' apartment reveal that on April 4, 1999, Mr. Waterton replaced a baluster in a window and repaired a closet door; on February 20, 2000, Diane complained that the stove was out of order; on February 24, 2000, a maintenance worker replaced the baluster in a window and the work was reassigned to a glacier to repair a cracked window; on March 21, 2000, work was done on the stove , but the job was returned for reassignment; on March 21, 2000 the apartment was inspected; on May 30, 2000, July 6, 2000 and October 10, 2000, additional work tickets were generated; and on October 16, 2000, plastering was done and the burner of the stove was repaired, as the result of a call to the emergency repair number. Mr. Waterton also testified that the stove should have been installed on a bracket on the floor.

Deoprakash Ramotar

Mr. Ramotar testified that he has been employed by the Housing Authority since 1999 as a "floater" maintenance worker, i.e., he would be sent to a project if workers were needed because someone was sick or on vacation; his duties included making repairs and inspecting apartments. The apartments usually were inspected once a year, when it would be determined if the stove and refrigerator worked or if any tiles were broken or in need of repair.

Mr. Ramotar testified that on March 21, 2000, he inspected plaintiffs' apartment, when he was given two work tickets, one for glass that was cracked in a window and the second for the stove being out of order. After reviewing the report, Mr. Ramotar testified [*4]that he did not repair the stove, he did not recall what was wrong with it and he requested a follow up. Since he checked that the stove was OK, it would not be wobbly; if it was, he would have adjusted the legs. As part of his routine, he would open and close the drawer on the stove. The report further indicated that the apartment had previously been inspected on May 25, 1999.

Andrew Armstrong's Deposition Testimony

Mr. Armstrong testified that he has been employed as a maintenance worker for the Housing Authority since 1987 and had been assigned to the Langston Hughes Apartments for ten years. In October 2000, he was assigned to 301 Sutter Avenue and the bottom half of 315 Sutter Avenue; he would work at 335 Sutter Avenue approximately once a week, when another person was needed. His duties included making repairs and doing inspections. In his years of working for the Housing Authority, Mr. Armstrong never received any complaints about a wobbly refrigerator, stove or tiles.

Mr. Armstrong testified that on October 18, 2000, he adjusted the burners on the stove in plaintiffs' apartment because food had gotten on them and they did not work. He knew that the stove was not wobbly because he had to take the top of it off, which would cause it to wobble if it was unsteady; if it was unsteady, he would adjust the legs. Mr. Armstrong further testified that the stove was hooked to the floor in the back; as long as the leg of the stove is in the catch, it could not wobble.

George Gizanis' Deposition Testimony

Mr. Gizanis testified that he had been the vice president of Phoenix, a general construction company that did renovation work for the Housing Authority; the company ceased operating three or four years earlier. Mr. Gizanis was also the president and part owner of Ypsilon, a construction company that ceased operating in the mid to late 1990s and did mostly roofing and brick replacement work for the Housing Authority and for another state agency. John Giavris was the president of Phoenix and the vice president of Ypsilon.Mr. Gizanis testified that Phoenix was involved in a project at the Langston Hughes Apartments to replace the base and wall cabinets in the kitchen, paint, install sinks and retile. Ypsilon did not perform any of the work. He further testified that the work began in approximately early 2000 and was completed by July or August of that year. The tiles were approved by the Housing Authority and purchased by Phoenix. When the work was completed, the tenant signed a document indicating that they were satisfied with the quality of the work.

The work in each apartment was generally completed in one day. Plastic would first be put up to control the dust and then the existing cabinets would be taken off the wall. The walls were then plastered, primed and painted. The floors were then retiled, over the existing tiles, and the new cabinets were installed. Some refrigerators had to be moved outside the kitchen; the stoves had to be disconnected and removed. Mr Gizanis had no specific recollection of apartment 16F. He did not recall any problems with tiles; he did not recall if more than one layer of tiles would be placed under the appliances. A document dated March 21, 2000 indicated that the tenant of apartment 16F was satisfied [*5]with the work. When shown a picture of plaintiffs' apartment, Mr. Gizanis noted that the flowery tiles in the center were not installed by Phoenix, but the tiles under the stove looked like those installed by the company.

Mr. Gizanis testified that he recognized a letter that Phoenix sent to the Housing Authority advising it that some tenants had self-adhere tiles installed and that the company would not install tiles over them because new tiles would not adhere properly. In response, the Housing Authority told Phoenix not to tile those apartments and it took a credit on the work that was not done. He further testified that Phoenix requested permission to install three layers of tiles in apartments where the cabinets and stove were installed on bare concrete.

The Parties' Contentions

Ypsilon and Phoenix

In support of their motion, Ypsilon and Phoenix allege that Mr. Gizanis' deposition testimony and a copy of the contract entered into by the Housing Authority for the renovation of the kitchens at the Langston Hughes Apartments establish that Phoenix was hired to replace the kitchen cabinets and sinks, paint and retile the kitchen and that Ypsilon was not involved in the renovation project. Mr. Gizanis's testimony further establishes that neither he nor Phoenix received any complaints from plaintiffs herein with respect to the work performed in their apartment. Similarly, there is no indication on any work tickets that plaintiffs complained about the work performed by Phoenix and the Tenant Acceptance Form, dated March 21, 2000, indicates that the work had been performed by Phoenix.

Further, an inspection of plaintiffs' kitchen performed on April 29, 2003 by Steven R. Kane, CSP, revealed that the kitchen floor was level and solid. In addition, Mr. Waterton did not recall Ypsilon or Phoenix working at plaintiffs' apartment or in the complex in 2000. Neither Mr. Ramotar nor Mr. Armstrong were familiar with either Ypsilon or Phoenix and had not heard the names before. Work tickets for the apartment indicate that the stove was repaired on March 21, 2000, the day that Phoenix finished working, and on the day following Tonisha's accident, and that Diane did not make any complaints about the floor being uneven. Hence, there is no evidence that the floor in the kitchen was uneven.

Moreover, movants argue that even if the floor was uneven, there is no evidence to support a finding that the condition was created by or exacerbated by Phoenix. Further, the condition of the floor merely furnished the occasion for the incident to occur, and was not the proximate cause of the accident, since the accident was caused by Diane leaving a pot of hot water on the stove and Tonisha bumping into it. Similarly, there is no evidence to support a finding that Phoenix performed any work on plaintiffs' stove. Movants also argue that the evidence establishes that movants did not have constructive notice of any defect.

Movants thus conclude that the complaint and all cross claims against Ypsilon should be dismissed, since Ypsilon did not perform any work at the Langston Hughes [*6]Apartments. In addition, Phoenix owed no duty of care to plaintiffs, since it did not launch a force or instrument of harm in the performance of its contract, plaintiffs did not detrimentally rely upon the continued performance of Phoenix's duties and Phoenix did not displace the duty of the Housing Authority to maintain the premises.

The Housing Authority

The Housing Authority opposes the motion, arguing that the evidence establishes that there are questions of fact with regard to whether the tiling completed by Phoenix was level underneath the stove. More specifically, Diane testified that the stove rocked from front to back because the floor was uneven. The Housing Authority further argues that although movants argue that Phoenix owed no duty of care to plaintiffs, it owed a duty to the Housing Authority based upon their contract, since Phoenix agreed to "perform the Work . . . in a good, substantial and workmanlike manner." In addition, Phoenix's assertion that any contractual duty owed to the Housing Authority ended when the work was completed is lacking in merit, since Phoenix guaranteed the work for one year. Finally, the Housing Authority argues that Phoenix's negligence in installing an uneven floor was the proximate cause of Tonisha's injuries, since it was foreseeable that a stove placed on an uneven floor would rock and that items would consequently fall off.

Plaintiffs

Plaintiffs argue that the motion should be denied on the ground that numerous issues of fact exist concerning whether defendants failed to maintain the subject floor and/or tile in a reasonably safe condition. More specifically, plaintiffs argue that the evidence establishes that defendants assumed and undertook a duty to properly install new tiles in plaintiffs' apartment, which required removing and reinstalling the stove. Diane's deposition testimony establishes that the stove continued to shake after defendants completed the work. Accordingly, defendants are liable for performing the work that caused, created or made a dangerous condition worse

Burden of Proof

It is well established that "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues" (see e.g. Kolivas v Kirchoff, 14 AD3d 493, 493 [2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]). A proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Kolivas, 14 AD3d at 493; accord Doize v Holiday Inn Ronkonkoma, 6 AD3d 573, 573-574 [2004]).

Defendants' Liability Plaintiffs

In discussing the issue of whether a contractual obligation can be the predicate for tort liability to an injured third-party, the Court of Appeals explained that: [*7]

" A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party' (Espinal v Melville Snow Contrs. 98 NY2d 136 [2002]; see also Church v Callanan Indus., 99 NY2d 104, 111 [2002] ["(O)rdinarily, breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor"]). We have identified only three exceptions to this general rule, which we summarized in Espinal. These are (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launches a force or instrument of harm" [quoting Moch Co., Inc. v Rensselaer Water Co., 247 NY 160, 168 (1928)]; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties [citing Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 (1990)] and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely [citing Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 (1994)]' (Espinal, 98 NY2d at 140; see also Church, 99 NY2d at 112-113)."

(Stiver v Good & Fair Carting & Moving, 9 NY3d 253, 257 [2007]). In this regard, "[a] contractor who creates or exacerbates' a harmful condition may generally be said to have launched' it" (McCord v Olympia & York Maiden Lane Co., 8 AD3d 634, 636 [2004], citing Espinal, 98 NY2d at 142; accord Salvati v Professional Sec. Bur., 40 AD3d 735 [2007], lv denied 9 NY3d 806 [2007] [in order to establish that defendant launched a force or instrument of harm, plaintiff was required to show that defendant either created or exacerbated a dangerous condition]).

Discussion

Herein, in reliance upon the contract entered into between the Housing Authority and Phoenix and the deposition testimony of Mr. Gizanis, movants make a prima facie showing that Ypsilon did not perform any work for the Housing Authority at the Langston Hughes Apartments, so that it cannot be found liable for the injuries sustained by Tonisha. Inasmuch as neither plaintiffs nor the Housing Authority offer any evidence to refute this showing, Ypsilon is granted summary judgment dismissing the complaint and all cross claims as against it.

Phoenix, however, fails to establish entitlement to judgment, since it fails to demonstrate that its contract with the Housing Authority did not give rise to a duty of care to plaintiffs. Phoenix does establish that plaintiffs could not detrimentally rely upon the performance of its duties under the contract, since the certificate signed by Diane indicates that the work done in her kitchen was accepted on March 21, 2000, seven months before the subject accident occurred. Similarly, Phoenix establishes that the contract between the Housing Authority and Phoenix did not completely displace the duties of the Housing Authority with regard to maintaining the premises, since Phoenix had a contract that limited its duties to the renovation of the kitchens.

Phoenix fails to establish, however, that it did not launch a force or instrument of harm, i.e., that it did not create or exacerbate a dangerous condition. In this regard, [*8]plaintiffs allege that Phoenix created a dangerous condition when it installed the new tiles in such a way that caused the floor to be uneven, which in turn caused the stove to wobble and the pot to fall on Tonisha. The court finds these allegations raise a question of fact sufficient to warrant the denial of Phoenix's motion (see generally Grant v Caprice Mgt., 43 AD3d 708 [2007] [the allegation that the management company negligently installed a window with defective parts, causing it to fall out of its track, created an issue of fact with regard to whether the company launched a force or instrument of harm]). Similarly, although movants argue that the proximate cause of Tonisha's accident was Diane's conduct in leaving a pot filled with hot water and grease on the stove and Tonisha's conduct in bumping the stove with her shoulder, it is well established that there can be more than one proximate cause of an accident (see e.g. Argentina v Emery World Wide Delivery, 93 NY2d 554, 560, n 2 [1999]).

Phoenix also fails to demonstrate entitlement to summary judgment dismissing the cross claims asserted against it by the Housing Authority, since issues of fact exists as to whether it was negligent (see generally Diaz v Eminent Assoc., 31 AD3d 296 [2006]; Barraco v First Lenox Terrace Assocs., 25 AD3d 427 [2006]; Mannino v J.A. Jones Constr. Group, 16 AD3d 235 [2005]; Daquaro v Modern Cont. Constr. Co., 8 AD3d 324 [2004]).

Conclusion

The motion is granted only to the extent of dismissing all claims and cross claims as against Ypsilon Construction Corp., Inc. The remaining claims and cross claims are severed and shall continue.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C.