Lane v Oceanside Institutional Indus., Inc.

[*1] Lane v Oceanside Institutional Indus., Inc. 2008 NY Slip Op 52343(U) [21 Misc 3d 1134(A)] Decided on November 12, 2008 Supreme Court, Nassau County LaMarca, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2008
Supreme Court, Nassau County

Keith Lane, SUSAN LANE, JULIAN TAVALARO, MICHELLE TAVALARO, PATRICK MADDEN, MICHELLE MADDEN, THOMAS MC DERMOTT, NANCY MC DERMOTT, JOHN T. MADDEN, STEVEN NAPOLI, RANDEE WATSON, GARY GELFMAN, ELIZABETH GELFMAN, KEVIN CANHAM and JEANETTE CANHAM, NATIONWIDE INSURANCE COMPANY a/s/o PASQUALE CIBELLIS, STEWART GELMAN, and OCEANSIDE MASON SUPPLY, MERCHANTS INSURANCE COMPANY a/s/o ORZANO, INC., JAMES DEPRESCO, GARY FISH and LEONARD ROSSELO, LOUIS DE VITO, CPA, P.C., LOUIS DE VITO, Individually, GELMAN & DE VITO, CPA's, P.C., STEWART GELMAN, Individually, and PASQUALE CIBELLIS, Plaintiffs,

against

Oceanside Institutional Industries, Inc., WALTER HERMANN, FRANK FERRARA, VINCENT ORZANO and FRANK FERRARA and WALTER HERMANN PARTNERSHIP, Defendants.



9994/06



TO:Sullivan, Papain, Block, McGrath & Cannavo, PC

Attorneys for Plaintiffs Keith Lane, Susan Lane, Julian Tavalaro, Michelle Tavalaro, Patrick

Madden, Michelle Madden, Thomas McDermott, Nancy McDermott, John T. Madden andSteven Napoli

55 Mineola Boulevard

Mineola, NY 11501

Dell & Little, LLP

Attorneys for Plaintiffs James Depresco, Gary Fish and Leonard Rosselo

350 Old Country Road, Suite 105

Garden City, NY 11530

Chiariello & Chiariello, Esqs.

Attorneys for Plaintiff Randee Watson

118-21 Queens Boulevard

Forest Hills, NY 11375

McAndrew, Conboy & Prisco, Esqs.

Attorneys for Plaintiffs Kevin Canham and Jeanette Canham

95 Froehlich Farm Boulevard

Woodbury, NY 11797

Sheps Law Group, PC

Attorneys for Plaintiff Nationwide Insurance Company a/s/o Pasuale Cibellis, StewartGelman and Oceanville Manson Supply, Merchants Insurance Company a/s/o Orzano,Inc.

35 Pinelawn Road, Suite 106E

Melville, NY 11747

Paul Zsuffa, Esq.

Attorney for Plaintiffs Louis Devito, CPA,PC, Louis Devito, Gelman & Devito, CPA's, PC,Stewart Gelman and Pasquale Cibellis

2463 Long Beach RoadOceanside, NY 11572

L'Abbate, Balkan, Colavita & Continini, LLP

Attorney for Defendants Oceanside Institutional Industries, Inc., Walter Hermann and FrankFerrara

1001 Franklin Avenue

Garden City, NY 11530

Milber, Makris, Plousadis & Seiden, LLP

Attorneys for Defendant Vincent Orzano

1000 Woodbury Road

Woodbury, NY 11797

William R. LaMarca, J.

Requested Relief

[*2]The Court has three (3) motions before it arising out of an action for personal injuries and property damage resulting from a fire and explosion on June 29, 2003 at 2511 Long Beach Road, Oceanside, New York. The personal injuries were allegedly sustained by twenty-two (22) volunteer firefighters, the property damage by adjoining property owners.

In the first motion, sequence #

5, defendant, VINCENT ORZANO, moves for an order, pursuant to CPLR §3212, granting summary judgment dismissing all of the pending actions and cross-claims against him. By cross-motion, sequence #

6, plaintiffs, NATIONWIDE INSURANCE COMPANY (hereinafter referred to as "NATIONWIDE") and MERCHANTS INSURANCE COMPANY( hereinafter referred to as "MERCHANTS"), seek leave to serve a Supplemental Verified Bill of Particulars. In motion Sequence #

7, plaintiffs, KEVIN CANHAM and JEANETTE CANHAM, seek leave to serve a further Supplemental Verified Bill of Particulars, and for and order granting summary judgment against defendant, OCEANSIDE INSTITUTIONAL INDUSTRIES, INC. (hereinafter referred to as "OCEANSIDE"), on the issue of liability.

Background

On June 29, 2003 a fire and explosion occurred at 2511 Long Beach Road, Oceanside, New York. Twenty-two (22) volunteer firemen sustained personal injuries, twelve (12) of whom brought suit, and a number of other plaintiffs sustained property damage. Nine (9) actions were commenced, five (5) of which named ORZANO as a defendant. These actions have been consolidated. The plaintiffs, KEITH and SUSAN LANE, JOHN T. MADDEN, PATRICK and MICHELLE MADDEN, THOMAS and NANCY McDERMOTT, JULIAN and MICHELLE TALAVARO, STEVEN NAPOLI and RANDEE WATSON, have resolved their actions. The claims of JAMES DePRESCO, GARY FISH, LEONARD ROSSELO and KEVIN and JEANETTE CANHAM, as well as cross-claim by the defendant, OCEANSIDE, are the only remaining claims.

ORZANO was the fee owner of the premises. He occupied the front portion of the building as an automobile repair business, with the rear portion, approximately two-third's of the total building area, leased to OCEANSIDE. The lease was for five (5) years, commencing November 1, 1984 and expiring on October 31, 1989. At the expiration of the term, OCEANSIDE remained in possession and continued to make payments to ORZANO. Under the terms of the lease, OCEANSIDE was to maintain the leased premises, provide insurance for the benefit of ORZANO in the amount of $2,000,000.00, obtain all necessary permits, abide by all rules and regulations, hold the landlord harmless for liability arising from any such violations, and have exclusive occupancy of the demised premises.

According to the Report of the Nassau County Fire Marshal [FN1], employees of OCEANSIDE stored recently washed and dried cotton laundry in plastic bins within the OCEANSIDE portion of the premises, and a fire occurred as a result of spontaneous combustion of the heated cotton linens, causing extensive damage to the warehouse and property adjoining to the north. In the course of [*3]fighting the fire, a number of volunteer firefighters were injured as a result of exploding tanks of acetylene, which were stored in the southwest corner of the OCEANSIDE facilities. They were in close proximity with oxygen tanks, both of which were used in conjunction with the welding of carts used for the transport of processed laundry.

As a result of this incident, the Nassau County Fire Marshal issued an "Order to Remove Violations Forthwith". It alleged that oxygen and acetylene containers were not stored properly, not secured against tipping and that there was inadequate separation between the fuel and oxygen cylinders. It directed that all gas cylinders be secured against tipping, that oxygen and fuel cylinders must be separated by at least 20 feet or that there be a non-combustible wall separating them, and that all oxygen and fuel cylinders must be stored as required. OCEANSIDE pled guilty, on December 10, 2007, and was fined $250.00.

Motion Sequence #

5

The defendant, VINCENT ORZANO (hereinafter referred to as "ORZANO"), the fee owner of the property and landlord of OCEANSIDE, moves for summary judgment dismissing all claims and cross-claims against him. The determination of the motion depends upon whether the fire and resulting explosions arose out of the activities of a tenant, over which the landlord had no control and no notice and where the plaintiffs' injuries were not caused by any Building Code violation or negligent conduct attributable to the landlord. (Zvinys v Richfield Inv. Co., 25 AD3d 358, 808 NYS2d 640 [1st Dept. 2006]).

In support of the motion, ORZANO points to the lease provisions which require OCEANSIDE to care for the demised premises, to obtain $2,000,000.00 liability insurance coverage for the benefit of the landlord, to abide by all laws, rules and regulations and which gave the tenant exclusive occupancy of the demised portion of the building as a warehouse. It is ORZANO's position that he, the landlord, had no knowledge of the fact that propane, oxygen and acetylene would be located on the premises. Despite the fact that ORZANO occupied the remainder of the building, he asserts that he had no knowledge that a hi-lo was stored in the demised premises, or that the three compressed gases were kept there.

The CANHAM plaintiffs respond that ORZANO had a "full-time" presence at the building, maintained fire insurance for the entire premises, shared a common driveway with OCEANSIDE, was aware that OCEANSIDE used a propane-fueled hi-lo in connection with the transportation of laundry, failed to compel OCEANSIDE's compliance with statutes, rules, codes and regulations as the tenant was required to do under the lease, had a right of entry to inspect the premises under the lease, knew or should have known of prior violations issued to OCEANSIDE, and had authority to direct the placement of equipment and machinery by the tenant in the demised premises.

Counsel for OCEANSIDE also opposes the motion for summary judgment. Their primary position is that there is a factual issue as to whether or not ORZANO is an "out-of-possession" landlord. They point to many of the same arguments made by counsel for the CANHAMS relating to ORZANO's daily presence at the premises to operate his business in the front of the building, the use of a common driveway, his awareness of the existence of a hi-lo used by OCEANSIDE, ORZANO's right of re-entry pursuant to the lease, his making of repairs to the exterior of the building and allowing friends to store property on the premises without charge. It is claimed that this [*4]constitutes at least constructive, if not actual, knowledge of the actions of OCEANSIDE with respect to the use and storage of hazardous materials such a acetylene, oxygen and propane in connection with their laundry operation.

When presented with a motion for summary judgment, the function of a court is "not to determine credibility or to engage in issue determination, but rather to determine the existence or non-existence of material issues of fact." (Quinn v Krumland, 179 AD2d 448, 577 NYS2d 868 [1st Dept. 1992]); See also, (S.J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478, 313 NE2d 776 [C.A.1974]).

To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. (Stillman v Twentieth Century-Fox Corp., 3 NY2d 395, 165 NYS2d 498, 144 NE2d 387 [C.A.1957]). It is a drastic remedy, the procedural equivalent of a trial, and will not be granted if there is any doubt as to the existence of a triable issue. (Moskowitz v Garlock, 23 AD2d 943, 259 NYS2d 1003 [3d Dept. 1965]; (Crowley's Milk Co. v Klein, 24 AD2d 920, 264 NYS2d 680 [3d Dept. 1965]).

The evidence will be considered in a light most favorable to the opposing party. (Weiss v Garfield, 21 AD2d 156, 249 NYS2d 458 [3d Dept. 1964]). The proof submitted in opposition will be accepted as true and all reasonable inferences drawn in favor of the opposing party. (Tortorello v Carlin, 260 AD2d 201, 688 NYS2d 64 [1st Dept. 2003]). But this rule will not be applied where the opposition is evasive or indirect. The opposing party is obligated to come forward and bare his proof, by affidavit of an individual with personal knowledge, or with an attorney's affirmation to which is appended material in admissible form, and the failure to do so may lead the Court to believe that there is no triable issue of fact. (Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 [C.A.1980]).

The opponents to the motion rely, in part, upon Stalter v Prudential Ins. Co. of Am. 220 AD2d 577, 632 NYS2d 602 (2nd Dept. 1995), in which the Court reversed the trial court and denied the motion by the landlord for summary judgment. Prudential was the owner of the Smithaven Mall, in which Macy's was a tenant. The plaintiff, an employee of a construction company, was injured while pushing a cart down a ramp at the rear of Macy's. The injury occurred when he tripped on a bump or crown on the ramp. While acknowledging that the liability for a defective condition on the premises hinges on whether the landlord has retained sufficient control, including a right of entry to repair, so as to be chargeable with notice of a dangerous condition, on appeal the motion was denied not on that basis but because the lease raised issues regarding joint responsibility of the landlord and the tenant for maintenance of common areas, of which the exterior ramp may have been a part.

Simply retaining a right of entry does not create liability for the conduct of a tenant. Couluris v Harbor Boat Realty, Inc., 31 AD3d 686, 820 NYS2d 282 (2d Dept. 2006) involved a plaintiff employee of a diner who slipped on a broken tile in the kitchen and caught his foot in an uncovered drain pipe in the floor. The defendant was an out-of-possession landlord who retained the right to enter the premises for repairs and inspections. In reversing the Trial Court and dismissing the complaint against the landlord, Second Department, quoting from Seney v Kee Assoc., 15 AD3d 383, 798 NYS2d 120 (2d Dept. 2005), stated that " [a]n out-of-possession landlord is not liable for injuries sustained on the premises unless the landlord retains control of the premises or is contractually obligated to perform maintenance and repairs' ".

In seeking to impose liability upon a landlord there is a significant difference between a [*5]defective structural condition and operations of the tenant of which there is no notice or control. "Although reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of -possession landlord for injuries caused by a dangerous condition which constitutes a violation of a duty imposed by statute, this exception applies only where a specific statutory violation exists and there is a significant structural or design defect.' " Id. citing (Nunez v Alfred Bleyer & Co., 304 AD2d 734, 757 NYS2d 798[2d Dept. 2003]), quoting (Fucile v Grand Union Co., 270 AD2d 227, 705 NYS2d 377 [2d Dept. 2000]). Similarly, in Zvinys v Richfield Inv. Co., supra , the defendants, owners and managers of the premises, successfully established that the fire which caused the damage arose from the overloading of a power strip in the tenant's equipment room, about which they had no notice and over which they had no control, and that the plaintiff's injuries were not caused by any Building Code violations or negligent conduct on the landlord's part.

The source of the fire is not in controversy. It occurred as a result of the placement of recently dried cotton material in plastic bins which were wheeled into the premises, and left there, leading to spontaneous ignition, a surprising but apparently not uncommon, event. [FN2] The personal injuries seem to have occurred, not from the fire, per se, but from the explosion of an acetylene tank caused by the excessive heat. Whether or not the contiguity of the oxygen and acetylene was the cause of the explosion is an issue for trial, but for the purpose of the motion for summary judgment, their location in the OCEANSIDE premises is analogous to the cases cited in the preceding paragraph, in which the landlord, even if retaining a right to enter and repair, is not responsible for a non-structural violation.

The expired lease, under which the landlord continued to receive rent, explicitly required the Tenant to maintain the premises and make necessary repairs. It also authorized the landlord, or his representative, to enter the premises during regular business hours to inspect and exhibit them for the purposes of sale or rental. Just as in the cases previously cited, this authorization is inadequate to impose liability upon the landlord for the alleged violation involving the placement of gas canisters and their contribution to the injuries of the plaintiffs.

For these reasons, the motion for summary judgment dismissing all claims and cross-claims against defendant ORZANO is granted.

Motion Sequence #

6 and #

7

In cross-motion sequence #

6, NATIONWIDE, as subrogee of PASQUALE CIBELLIS, STEWARD GELMAN and OCEANSIDE MASON SUPPLY, and MERCHANTS, as subrogee of ORZANO INC., seek to serve a Supplemental Verified Bill of Particulars. Similarly, in cross-motion sequence #

7, the CANHAM plaintiffs seek leave to serve a Further Supplemental Bill of Particulars, and also request an order granting summary judgment against OCEANSIDE on the issue of liability, and for an assessment of damages.NATIONWIDE and MERCHANTS seek to supplement their verified bill of particulars by including the following sections of law which they claim OCEANSIDE [*6]violated: New York State Uniform Fire Prevention and Building Code Act - Executive Law, Article 18, §§ 370 — 383; New York State Uniform Fire Prevention and Building Code Act - Executive Law §§ 371 (2) (a); 371(2) (b); 371 (2) (b) (1); 371 (2) (b) (2); 371 (2) (b) (5); 374; 377; 378; 373 (1); 379 (4); 379; 383 (1) ©; 379 (4); 9 NYCRR Part 1190, § 1190.1; 9 NYCRR Part 1191, § 1190.1(a) and 1191.1 (e); 9 NYCRR Part 1175, § 1175.1; 9 NYCRR Part 1178, § 1178.3 (b) and 1178.8 ©; 9 NYCRR Subchapter F, Part 1245, § 1245.1; 9 NYCRR Subchapter F, Part 1246, § 1246.1; Chapter 30, § 3033.33 of the Fire Code of the State of New York; §§ 3003.4, 3003.4.1 and 3003.5 of the Fire Code of the State of New York; Article 2 - Nassau County Fire Prevention Ordinance; Article 2 - Section 2.1A General Inspection of Premises; Chapter 27, Section 2703.9.8 (1) of the Fire Code of the State of New York; Article 2 - Section 2.1a of the Nassau County Fire Prevention Ordinance; and Articles 3, 5, and 6 - Nassau County Fire Prevention Ordinance.

The sections of law enumerated in the CANHAMS' Further Supplemental Verified Bill of Particulars are as follows: 9 NYCRR Part 1190, § 1190.1; 9 NYCRR Part 1191, § 1191.1 (a), and 1191 (e); 9 NYCRR Part 1178, § 1178.3 (b), and 1178.3 ©; 9 NYCRR Subchapter F, Part 1245, § 1245.1; 9 NYCRR Subchapter F, Part 1246, § 1246.1; Chapter 30, § 3003.3.3 of the Fire Code of the State of New York; §§ 3003.4, 3003.4.1, and 3003.5 of the Fire Code of the State of New York. [*7]

The Court first addresses an issue which has led to confusion among the parties; that is, whether or not the New York State Fire Code was in effect on June 29, 2003, and if so, where it was codified. The New York State Uniform Fire Prevention and Building Code, formerly found in 9 NYCRR §§ 600.1 et. seq. was repealed in January, 2003, and re-codified in 19 NYCRR § 1225.1. It now incorporates by reference the 2007 Fire Code of New York State (FCNYS), published August, 2007.

In DeGrazia v Lemmon, 28 AD3d 926, 813 NYS2d 560 (3d Dept. 2006), leave to appeal denied, 7 NY3d 706 (C.A.2006), the Court, in what amounted to dicta, found that the State Uniform Fire Prevention and Building Code "was repealed prior to plaintiff's fall". But in People v Oceanside Institutional Industries, 15 Misc 3d 22, 833 NYS2d 350 (App. Term 2007), involving the subject fire, the Court reversed the dismissal of the information by the District Court, and concluded that the State Code was in full force and effect; and being more stringent than the Nassau Code with respect to the separation of incompatible gases, superseded it. Scala v Scala, 31 AD3d 423, 818 NYS2d 151 (2d Dept. 2006) involved a trip and fall on a front stairway on July 17, 2004. The trial court determined that the fall was caused by the existence of a doll on the stairs, was not caused by the lack of handrails, and granted the defendant's motion to dismiss. In reinstating the complaint, the Court referred to a violation of 19 NYCRR 1220.1. Scala, therefore, provides the best indication of the continued existence of the State Code at the time of the injuries sustained by the plaintiffs in this action, and its codification in 19 NYCRR as opposed to 9 NYCRR.

To the extent that the cross-moving parties seek to rely upon the Fire Code of New York State, the motions are granted provided that the correct references are made to 19 NYCRR. The Nassau Code was in effect at the time of the fire, but did not make specific reference to the segregating of incompatible materials by a distance of not less than 20 feet as contained in the State Code at § 2703.9.8.

The stated purpose of the Fire Code is "to provide minimum requirements consistent with nationally recognized good practices that offer a reasonable level of life safety and property protection from the hazards of fire, explosion or dangerous conditions in new and existing buildings, structures and premises". Fire Code of New York State § 101.3. The Code does not nullify any provisions of local, state or federal laws or regulations. Id. at § 102.2. Nassau County Fire Prevention Ordinance No. 56-1962 [FN3] was in full force and effect as of the date of the fire.

CANHAMS' Motion for Summary Judgment

A violation of the State or Nassau Code constitutes only some evidence of negligence. It is incumbent on the plaintiff to establish that their injuries were proximately caused by the violation. (Scala v Scala, supra ). The violation was the failure to separate oxygen and acetylene tanks by more than 20 feet. There seems to be no question but that it was the exploding tanks which caused serious injuries to CANHAM. But the extent of the conflagration and the complete collapse of the roof present a factual question as to whether or not the same result would have occurred even if the tanks were separated by more than 20 feet. The CANHAM's motion for summary judgment is denied. (Stillman v Twentieth Century-Fox Corp., 3 NY2d 395, 404 [1957]).

The defendants oppose the motion as untimely, being filed more than 60 days after the filing of the Note of Issue. In light of the denial of the motion, the Court considers it unnecessary to [*8]address this issue.

Conclusion

Based on the foregoing, it is hereby

ORDERED, that the motion by defendant , VINCENT ORZANO, for dismissal of the complaint and all cross-claims against him is granted; and it is further

ORDERED, that the motions by the plaintiffs, NATIONWIDE, MERCHANTS and KEVIN and JEANETTE CANHAM, to serve a Supplemental Verified Bill of Particulars as requested are granted, with the understanding that the Fire Code of the State of New York is codified in 19 NYCRR, as opposed to 9 NYCRR; and it is further

ORDERED, that the motion by the CANHAM plaintiffs for summary judgment on the issue of liability, and for an assessment of damages is denied, on the ground that the issue of whether the violation to which OCEANSIDE pled guilty was the proximate cause of the plaintiff's injuries is a question of fact.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: November 12, 2008

_________________________

WILLIAM R. LaMARCA, J.S.C.

lane & oceanside,#

5,#

6,#

7/sumjudg Footnotes

Footnote 1: Exhibit. "V" to the Motion.

Footnote 2: Expert Affidavit of Michael F. Cronin, Exhibit. "1" to Cross-Motion and Fire Marshal's Report, Exhibit. "V" to Motion.

Footnote 3: Appendix to ORZANO Cross-Motion.