Lampke v Petro, Inc.

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Lampke v Petro, Inc. 2013 NY Slip Op 32870(U) October 25, 2013 Sup Ct, Suffolk County Docket Number: 08-35947 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. 0 -35947 CAL No. 1 -012'.PCO SHORT FORM ORDER SUPREME COURT - ST ATE OF NEW YO* I.A.S. PART 37 ·· SUFFOLK COUNTY i PRESENT: Hon. JOSEPH FARNETI Acting Justice Supreme Court MOTION DATIE 5--23-13 ADJ. DATE , 7-11-13 Mot. Seq.# ooi - MotD I -- ··-------------------------------------------------------------·--X EDNA LAMPKE and ROBERT LAMPKE, Plaintiffs, KEEGAN & Attorney for Pl 147 N. Ocean Patchogue, Ne EGAN, ROSS & ROSNER intiffs venue, P.O. Box 918 York 11772 - against PETRO, INC., MATSON HEATING AND AIR CONDITIONING, INC. and RUG RENOVA TING CO., INC., Defendants. MCCABE, CO ~LINS, MCGEOUGH, & FOWLER, LL Attorney for D fondant/Second Third-Party Plaintiff Petro, nc. 346 Westbury venue, P.O. Box 9000 Carle Place, N York 11514 ---------------------------------------------------------------X MATSON HEATING AND AIR CONDITIONING, INC., Third-Party Plaintiff, UEPFEL, LLP fondant/Third-party Plaintiff and Air venue, Suite 302 w York 11530 Attorney for D Matson Heatin 1399 Franklin Garden City, N I - against - I ROBERT L. DcDUGHERTY, ESQ. RUG RENOVATING CO., INC., Third-Party Defendant. Attorney for D1fendant/Third-Party/Second Third- Party Defendan Rug Renovating 226 Seventh St eet, SLLite 200 Garden City, N w York 11530 I -·------------------------------------------------------------··-X PETRO, INC., Second Third-Party Plaintiff, - against RUG RENOVATING CO., INC., Second Third-Party Defendant. --· ------------------------------------------------------------ -x [* 2] Lampke v Petro Index No. 08-35947 Page No. 2 Upon the following papers numbered 1 to --2§__ read on this motion for surnmar ud m~nt; Notice of Motion! Order Show Cause and supporting papers 1 - 31 ; Notice of Cross Motion and supporting apers ___ ;Answering Affidavits and supporting papers 32 - 49· 50 - 51 ; Replying Affidavits and supporting papers _21_~; )ther ___ ;(and after hearing eonnsel to in support and opposed to the motion) it is, 1 ORDERED that this motion by defendant/third-party defendant/se~ nd third-party defendant Rug Renovating Co., Inc. for summary judgment dismissing the complaint third-party complaint, second third-party complaint and all cross-claims against it or, in the altern tive, granting judgment limiting its liability in this action based on the limitation of liability terms i its invoices is determined as set forth hereinafter. i This is an action to recover damages for personal injuries and prop y damage that allegedly occurred following the installation of a new oil burner on April 20, 2006 in the basement of plaintiffs' premises located at 13 Basket Neck Lane, Remsenburg, New York resultin in the discharge of petroleum products on May 1, 2006. Plaintiffs contracted with defendant etro, Inc. ("Petro") for installation of the oil burner. The installation was performed by independe t contractor defendant Matson Heating and Air Conditioning, Inc. ("Matmn") pursuant to an agre ment between Petro and Matson. Plaintiffs also seek to recover damages for the alleged negligent r storation and cleaning of 18 rugs by defendant Rug Renovating Co., Inc. ("Rug Renovating") after said ischarge. They allege that the negligent cleaning resulted in fading, color loss, and severe color bleedi g of the rugs. They further allege that plaintiffs did not accept return of the rugs in said condition butt at plaintiff Edna Lampke signed a certificate of satisfaction under duress in order to obtain the releas of said rugs tendered by Rug Renovating. Petro and Matson answered asserting cros8-claims against Rug Ren contribution and indemnification. Matson then commenced a third-party a commenced a second third-party action, against Rug Renovating for comm indemnification against Rug Renovating with respect to the alleged improp vating for common-law tion, and Petro subsequently n-law contribution and r cleaning of the rugs. Rug Renovating now moves for summary Judgment dismissing the omplaint, third-party complaint, second third-party complaint and all cross-claims against it on t e grounds that its liability for damages to the subject rugs is limited contractually to the amount it was pai to clean said rugs, $1,575.67, that plaintiffs' dissatisfaction with the condition of the delivered rugs is directly contradicted by documentary evidence in the form of a certificate of satisfaction signed y Edna Lampke, that Petro and Matson cannot seek common-law indemnification against Rug Renovat ng inasmuch as they have been found negligent by prior Order of this Court dated April 14, 2011, and that contribution is unavailable where plaintiff seeks to recover purely economic losses arising ut of the alleged breach of contract by Rug Renovating. In support of the motion, Rug Renovating sub its, among other things, the affidavit of its president Paul Iskyan, copies of two non-negotiable custome 's contracts and receipts (invoices) signed by plaintiff Edna Lampke and the warnings on the reverse sides of said invoices, a certificate of satisfaction dated June 29, 2006, signed by plaintiff Edna Lam ke, a copy of plaintiffs' damage estimate, the affidavit of the attorney for Rug Renovating, the plead ngs of this action, the prior Order dated April 14, 2011, 1 and a portion of plaintiff Edna Lampke's depo ition testimony. The prior Order of this Court dated April 14, 2011 granted plaintiffs ~artial summary judgment against Petro and Matson on the issue of liability under Navigation Law for tht discharge of petroleum. 1 [* 3] Lampke v Petro Index No. 08-35947 Page No. 3 The president of Rug Renovating, Paul Iskyan, avers by affidavit tha his company cleaned, at the request of plaintiffs, 18 rugs at said premises that had been damaged by the ischarge. He notes that plaintiff Edna Lampke signed two invoices for said service which invoices ntain limitations on liability and warnings of color runs and fading of colors. In addition, Mr. Is yan avers that the rugs were thoroughly cleaned and then delivered on June 29, 2006 to plaintiffs' premi es at which time plaintiff Edna Lampke signed a certificate of satisfaction. He adds that Rug Renovat ng was paid $1,575 .67 by an insurance carrier on behalf of defendants in full payment for the cleaning of the rugs. According to Mr. Iskyan, plaintiff Edna Lampke subsequently complained that 11 of the 18 rugs had color runs or color changes and Rug Renovating arranged to pick up said 11 rugs and cle ned them again after which said rugs were returned to plaintiffs' premises. He informs that plaintiffs se k to recover $22,350.00 in damages and submits a copy of plaintiffs' damage estimate, marked as defe dant's Exhibit "O," indicating color loss, bleeding, fading and unauthorized tinting for eight oft e rugs. Mr. Iskyan also refers to a portion of the deposition testimony of plaintiff Edna Lampke in hich she acknowledged familiarity with the limitation ofliability language on the invoices, having d ne business with Rug Renovating over the past 30 years. He asserts that the complaint be dismiss d against Rug Renovating inasmuch as plaintiff Edna Lampke signed the certificate of satisfaction indi ating that all work was done to her satisfaction or, in the alternative, that damages be limited to $96 .90 or a maximum of $1,575.67 based on the limitation of liability in its invoices signed by plaint' ff Edna Lampke. In opposition to the motion, plaintiffs contend that damage to their v ·ous handmade oriental rugs remains to be determined, and that plaintiff Edna Lampke could not ha e accepted the condition of the rugs on delivery as she was not permitted to inspect the rugs prior to si ing a certificate of satisfaction, which she did under duress, purportedly to enable Rug Renovat ng to be paid by the insurance carrier. Plaintiffs also contend that plaintiff Edna Lampke was no the customer of Rug Renovating, which was retained by an insurance carrier purportedly of Petro or its agents, such that any contractual limitation of liability does not apply to plaintiffs. Plaintiffs' sub issions in support of their opposition include the affidavit of plaintiff Edna Lampke; the certificate of atisfaction and invoice documents with the delivery date of May 18, 2006 signed by plaintiff Edna ampke for return of the rugs; invoice number 69894 dated April 5, 2007, marked as plaintiffs' Exhi it "3," signed by plaintiff Edna Lampke with the notation "Rugs accepted under protest due to discolo ation. We are awaiting resolution by Rug Renovators"; and an invoice totaling $4,036.98 from thei January 20, 20 11 R esponse to Discovery and Inspection. Petro also submits opposition to the motion, a opting the arguments raised by plaintiffs. No opposition has been submitted by Matson. By her affidavit, plaintiff Edna Lampke attests that she had collected the handmade oriental rugs over several decades and that she has a background in textile design and tee nology, and experience in the industry including having worked as a colorist for Karistan Carpets. Sh avers that she received a call from "Terri," an employee of Rug Renovating,, informing her that 1the d liverymen were coming but would not bring the rugs into the house until plaintiff signed the documents resented to her, which included the certificate of satisfaction and invoices. Plaintiff further avers t at she signed said documents under duress and coercion and did not accept the condition of th rugs, making the deliverymen immediately aware of her dissatisfaction such that they took ba k approximately half of the rugs and she confirmed the return of the rugs that same day with "Terri." S estates that her rejection of the condition of the rugs is unequivocally confirmc:d by the notations on inv ice number 69894 dated April 5, 2007. Plaintiff disputes the sum of $1 ,575 .67 referenced by Rug R novating, noting that an invoice for the total sum of $4,036.98 was submitted in plaintiffs' January 2 , 2011 Response to Discovery and Inspection, and denies being a customer of Rug Renovating, tating that Rug Renovating [* 4] Lampke v Petro Index No. 08-35947 Page No. 4 w. as retained by an insurance carrier purportedly of Petro such that contract}1al limitation of liability is inapplicable to her. Plaintiff concludes by stating that the damages she suffered are in excess of the payment received by Rug Renovating. ! Rug Renovating submits the reply affidavit of its president, Mr. Isk an, noting that no opposition has been submitted by Petro and Matson regarding dismissal of the contrib tion and indemnification claims, that on June 29, 2006 plaintiff signed the certificate of satisfaction ith all of the rug cleaning work performed by Rug Renovating only to claim three-and-a-half-years la er in February 2010 when she impleaded Rug Renovating that she was coerced into signing said doc ent and suffered economic duress, and that plaintiff is bound by the limitation of liability provisions o the contract she signed. With respect to the disputed amounts, Mr. Iskyan notes that plaintiffs tota of $4,036.98 included charges for providing new padding and binding the sides of the rugs, whic charges were separate from the charges for cleaning the rugs. He submits a copy of said invoice with t e rug cleaning charges circled to show that said charges total $1,536. 74, which were paid by the i surance carrier to Rug Renovating, and argues that said sum should be the outward limit of any Ii bility of Rug Renovating to plaintiffs based on the contractual limitation of liability. Mr. Iskyan adds t at inasmuch as plaintiff only complained about the condition of 11 of the 18 rugs delivered, the damage are reduced to $962.90. ake a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in ad issible form to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 Y2d 320, 508 NYS2d 923 [1986]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1 80]; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). Th failure to make such aprima facie showing requires the denial of the motion regardless of the suffici.ency fthe opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [19 5]). Further, the credibility of the parties is not an appropriate consideration for the Court (S.J. Capeli . Assocs., Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Ga rubbo, 141 AD2d 636, 637, 529 NYS2d 797,799 [2d Dept 1988]). "Once thiE: showing has been made, however, the burden shifts to the party opposing the motion for summary judgn1ent to produce evidentia proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923, citing to Zuckerman 'City of New York, 49 NY2d at 562, 427 NYS2d 595). It is well-settled that the party moving for E:ummary judgment must I When the terms of a written contract are clear and unambiguous, thp intent of the parties must be found within the four comers of the contract, giving practical interpretatiotj to the language employed a.nd the parties' reasonable expectations (see W. U~ W. Assoc., Inc. v Giancpntieri, 77 NY2d 157, 162, 565 NYS2d 440 [1990]; Costello v Casale, 281.AD2d581, 583, 723 NYStd 44 [2d Dept 2001], lv denied 97 NY2d 604, 737 NYS2d 52 [2001]). i Here, although plaintiff Edna Lampke did not pay for the cleaning 4f the rugs, she gave permission to and allowed Rug Renovating to pick up and clean her 18 rug~ and thus, she was the customer of Rug Renovating, pursuant to the tem1s of the invoices. Based ~n the foregoing and her prior business with Rug Renovating, plaintiff agreed to, and admittedly was famhiar with, the limitation of liability terms of the invoices. Said terms included the following: I [* 5] Lampke v Petro Index No. 08-35947 Page No. 5 ! 4. The company shall not be liable for shrinkage, chang~s in texture, or for the appearance of white knots, or the running of dyes or any other defects which may appear during, or resulting from the rdinary cleaning process. The Company does not guarantee the removal {f spots, stains, discolorations or other design defects. The Company is lso not liable for any existing damage present in any rugs submitted to th Company for cleaning or treatment. 1 ! 5. In no event shall the Company be obligated or respoln"ble to pay for the replacement or loss of value for any of the above co itions set forth in paragraph 4 resulting from its cleaning process. The Co . pany shall, at its option, either refund to the customer the amounts paid b ·the customer for the cleaning process or credit the customer's account for~the cost of the cleaning. The customer acknowledges and accepts the fi regoing as the customer's sole remedy in the event the customer is diss tisfied with the cleaning process. ! ! I In addition, the adduced evidence shows that although plaintiff Edn Lampke signed a certificate of satisfaction that stated that "The insured hereby agrees that all work perfi rmed by Rug Renovating Co. has met with their complete satisfaction and authorizes Custard Insuran ·e Adjusters to pay the entire amount of cleaning services to Rug Renovating Co.," company employees f Rug Renovating were aware that plaintiff was dissatisfied with the cleaning and in response to he dissatisfaction, attempted to further clean 11 of the 18 rugs. Based on the foregoing, the certificate of sa isfaction signed by plaintiff cannot bar plaintiffs from recovering damages. However, said damages are limited under the terms of the invoices to, at most, the amounts paid by Custard Insurance Adjusters t Rug Renovating for the cleaning process of the 18 rugs which, as explained by the president of Rug Renovators in reply papers, was $1,536.74. Therefore, Rug Renovating is granted judgment limiting its liability in this action to a maximum of $1,536.74 based on the limitation of liability terms in its invoi es. Moreover, Rug Renovating met its prima j~cie burden of demonstra ing its entitlement to judgment as a matter oflaw dismissing the causes of action seeking commo -law indemnification and contribution against it (see Mack Cali Realty, L.P. v Everfoam Insulation ys., Inc.,_ AD3d _ , 2013 NY Slip Op 06348 [2d Dept 2013]). The pn::dicate for common-law i demnification is vicarious liability without fault on the part of the proposed indemnitee, and it follows hat a party who has itself participated to some degree in the wrongdoing cannot receive the benefit of he doctrine (see Kagan v Jacobs , 260 AD2d 442, 687 NYS2d 732 [2d Dept 1999]; Henderson v Wal baums, 149 AD2d 461, 539 NYS2d 795 [2d Dept 1989]). Here, with respect to the common-law in emnification claims, Rug Renovating established, prima facie, that Petro and Matson participated in t e alleged wrongdoing and were found liable for the discharge of the petroleum (see Mack Cali Realty, L.P. v Everfoam Insulation Sys., Inc. , __ AD3d _ , 2013 NY Slip Op 06348 [2d Dept 2013]; Ruiz v riffin, 50 AD3d 1007, 856 NYS2d 214 [2d Dept 2008]). In opposition, Petro and Matson failed to rais a triable issue of fact (see Mack Cali Realty, L.P. v Everfoam Insulation SyS'., Inc. ,_ AD3d __ , 2 . 13 NY Slip Op 06348 [2d l Dept 2013]). I As to contribution, the breach of duty by the contributing party mustf ave had a part in causing or the injury for which contribution is sought, that is, the parties m st have contributed to the same Injury (Nassau Roofing & Sheet Metal Co., Inc. v Facilities Dev. Co ., 71 NY2d 599, 528 a ugm~nting I i I I I i [* 6] Lampke v Petro Index No. 08-35947 Page No. 6 NYS2d 516 [ 1988]), and the remedy may be invoked against concurrent, su ·cessive, independent, alternative and even ir;tentional tortfeasors (see Raquet v Braun, 90 NY2d 77, 659 NYS2d 237 [1997]; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crensha & Folley, 71NY2d21, 523 NYS2d 475 [198/]). New York law bars contribution for purely econo nic losses based on a breach of contract as said losses do not constitute "injury to property" within them aning of New York's contribution statute (see CPLR 1401; Sommer v Federal Signal Corp., 79 2d 540, 583 NYS2d 957 [1992]; Board of Educ. of Hudson City School Dist. v Sargent, Webster, renshaw & Folley, 71 NY2d 21, 523 NYS2d 475; see also Mar-Cone Appliance Parts Co. v Ma an, 879 F Supp 2d 344 [WD NY 2012]). Her1~, Rug Renovating demonstrated that inasmuch as pl intiffs' recovery is limited to economic loss damages pursuant to the terms of the invoices, contribution i inapplicable in this matter. Petro and Matson failed to raise a triable issue of fact regarding their contri ution claims. Based on the foregoing, the third-party complaint and second third-party complaint and t e cross-claims against Rug Renovating are dismis;ed (see Mack Cali Realty, L.P. v Everfoam Insulati n Sys., Inc.,_ AD3d -~' 2013 NY Slip Op 06348 [2d Dept 2013]; see also Board of Educ. of udson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71NY2d21, 523 NYS2d 475). Dated: October 25, 2013 . oseph Farneti ! Acting Justice Suprem~ Court i FINAL DISPOSITION __ X_ NON-FINAL DISPO~ITION i

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