Borrok v John Barman, Inc.
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Borrok v John Barman, Inc. 2013 NY Slip Op 33435(U) December 13, 2013 Supreme Court, New York County Docket Number: 114120/10 Judge: Shlomo S. Hagler 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] SCANNED ON 1/3/2014 Index Number: 114120/2010 BORROK, CHARLES R. vs JOHN BARMAN, INC. Sequence Number : 002 SUMMARY JUDGMENT [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 --- ---- ------ - - -- - ---- ---- ------x CHARLES R. BORROK, Plaintiff, Index No. 114120/10 againstJOHN BARMAN, INC., and STARK WALL COVERING, FILED Defendants. - ---- JOHN BARMAN, DEC 2 4 2013 - -- -x COUNTY CLERK'S OFFICE NEW YORK INC., Third-Party Plaintiff, Index No. 590034/11 -againstDECISION/ORDER EVAN LONG ISLAND PAINTING CORP., Thi Defendant. - -- - - - -x Shlomo S. Hagler, J.: In this action to recover for damage to property, defendant/third- plaintiff John Barman, Inc. moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it. Borrok ("pl ( "Ba::::-man") Pla iff Charles R. ntiff" or "Borrok") opposes the motion and cross moves, pursuant to CPLR 3212, for summary judgment on of iability t Barman, and for sanct issue against Barman, to 22 NYCRR 130-1.1, in the form of legal fees and [* 3] costs, bringing what plaintiff maintains is a frivolous mot I. Background Plaintiff resi York, New York. s in apartment 28G at 1930 Broadway, New According to the complaint, plaintiff red Barman "to perform all work associated with a complete decoration and design of Borrok's apartment, ... including procuring, furnishing and installing special wallpaper from Stark ... in portions of the apartment." Complaint, ion was highly priced gold 1 ~ The wallpaper in 1. , and was made by defendant Stark Wallcovering ("Stark"). Plaintiff claims that the wallpaper stai a few years to the allegedly negl defendant Evan Long I afte~ allation, which he attributes its talled by thi manner it was and Painting Corp. Plaintiff ("Evan") . has not sued Evan and was not even aware that the wal lation was being subcontracted out to Evan. claims r Plaintiff Barman was personally responsible for installing the wal and iled to do so when it chose to subcontract t job to Evan (whose personnel were, all hang and spott this inexperienced in icular type of wallpaper) , and did not supervise Evan in the Stark y, allation of the wallpaper. ously made a motion to dismiss the complaint as to it, which was granted by this court on t 2 record, because y [* 4] plaintiff did not appear to have any valid claim that the wallpaper itself was defective. Instead, plaintiff claims that Evan installed the wallpaper without using a paper liner that would have absorbed the moisture from the glue used in the installation, which eventually caused spots to appear on the surface of the wallpaper. According to plaintiff, Stark's explicit instructions required the use of paper liners. Plaintiff brings three causes of action against Barman: for breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty and negligence. Barman brings Evan in as a third-party defendant, claiming that, if there was any negligence in the installation of the wallpaper, it was attributable to Evan. Barman's defense is that its sole responsibility on the project was as an interior decorator, hired to "select items that would look nice in the apartment" 4), (Aff. in Support of Motion, at and to "present[] decorating schemes to [plaintiff] improve the appearance of his apartment" to (id. at 6), which included helping plaintiff pick out appropriate wall coverings. Barman also claims that it "purchased carpeting, wall treatments and fabric" from Stark for the job, including the wallpaper in question. Barman contends that it had used Evan's services on previous occasions, but that, it was not itself responsible for installing the wallpaper; did not tell Evan how to install the 3 [* 5] . . wallpaper; had no personal knowledge about how to install the wallpaper; and was not a guarantor for the proper installation of the wallpaper by the Evan. Barman moves for summary judgment on the ground that it had no duty in contract or otherwise to see to the proper installation of the wallpaper. Plaintiff cross-moves for summary judgment on the ground that Barman failed in its duties (fiduciary as well as contractual) to see that the wall paper was properly installed. Evan has appeared to oppose plaintiff's cross motion against Barman. II. Discussion It is often stated that summary judgment is a "drastic remedy." (2 012) . Vega v Restani Construction Corp., 18 NY3d 499, 503 "[T]he '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 Meridian Management Corp. issues of fact from the case.'" Cristi Cleaning Service Corp., 70 AD3d 508, 510 (1st Dept 2010), quoting Winegrad v New York University Medical Center, 851, 853 (1985). requirement, v 64 NY2d Once the proponent of the motion meets this "the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial." 4 Ostrov v [* 6] Rozbruch, 91 AD3d 147, 152 Prospect Hospital, (1st Dept 2012), citing Alvarez v 68 NY2d 320, 324 (1986) If there is any doubt as to the existence of a triable issue of fact, judgment must be denied. summary Rotuba Extruders v Ceppos, 46 NY2d 223 (1978); Grossman v Amalgamated Housing Corporation, 298 AD2d 224 (1st Dept 2002). Both Barman's and plaintiff's motions must be denied, as there are questions of fact as to the scope of the duty Barman owed to plaintiff with regard to the installation of the wallpaper. Barman claims that, as an interior decorator, his only function was to help plaintiff select carpets and wallcovering and fabric, items. However, and had no obligation to install these it appears that Barman may have undertaken the duty to oversee that the wallpaper was actually installed. fact, In Barman may have entered into a direct agreement with plaintiff for the "preparation of walls and wallpapering apartment except for kitchen." (See, Exhibit "C" to the cross- motion, Proposal 004 dated January 14, 2008). allegedly sub-contracted the said work to Evan. Barman then Such an agreement may imply an obligation to see that the job was properly done by whomever Barman found to install the wallpaper. Therefore, the scope of Barman's obligations under its arrangement with plaintiff must be explored by the trier of fact, and neither movant is entitled to summary judgment. 5 [* 7] .. , ¢ Plaintiff's cross-motion must also be denied because there are questions of fact as to whether Evan was negligent in installing the wallpaper. On the instructions that came with the wallpaper, Stark appended the following language: "[w]e recommend the use of highly experienced paper hangers experienced in the installation of fine wallcoverings who are members of the National Guild of Professional Paperhangers ("Guild"). We recommend that a quality paper liner be used under our wallcoverings. Please consult with your paper hanger prior to installation." Plaintiff claims that Evan's personnel were not formally trained in the installation of gold foil wallpapers, Evan was not a member of the Guild, and Evan failed to follow the recommendation to use quality paper liners. On the other hand, Evan's president Evans Papagoulias ("Papagoulias"), avers that he has been hanging wallpaper for 30 years, starting as an apprentice in Italy, and has experience with the kind of wallpaper used in plaintiff's apartment. Papagoulias claims that, despite the recommendations on Stark's instructions, paper liners were not indicated for the job because paper liners are only used when the surface of the wall is rough, and needs to be smoothed over before applying the gold foil. Plaintiff's walls were apparently not rough and, therefore, Evan denies that paper liners were necessary. Evan also argues that the spotting was not the result of faulty installation of the 6 [* 8] .. .. . . wallpaper, but came from humid conditions allegedly prevalent in plaintiff's apartment. III. Conclusion As a result of these opposing theories, summary judgment is properly denied to both movants, except that the court dismisses the third cause of action for breach of fiduciary duty. Interior decorators do not owe a fiduciary duty to their customers. See Frank v Sobel, 38 AD3d 229 (1st Dept 2007). Further, plaintiff has not made any showing that it is entitled to sanctions pursuant to 22 NYCRR 130-1.1, as Barman's motion is not frivolous. Accordingly, it is ORDERED that the motion brought by defendant/third-party plaintiff John Barman, Inc. for summary judgment dismissing the complaint and all cross-claims against it is denied, except that the third cause of action for breach of fiduciary duty is dismissed; and it is further ORDERED that the cross-motion brought by plaintiff Charles R. Borrok, for summary judgment on the complaint, and for sanctions against John Barman, Inc., is denied. Dated: December 13, 2013 FILED DEC 2 4 2013 ENTER: .COUNTY CLERK'S OFFICE IHi...OMCsh~~'~'~-ER J~S~·~, 7 NEW YORK
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