Lloyds of London v Evanston

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Lloyds of London v Evanston 2014 NY Slip Op 31544(U) June 5, 2014 Sup Ct, NY County Docket Number: 151786/2012 Judge: Lucy Billings 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46 -------~-------------------------------x LLOYDS OF LONDON a/s/o MIKE RUTHERFORD, ( Index No. 151786/2012 · Plaintiff - against JAMES w.. EVANSTON ( DECISION AND ORDER I Defendant· - - - - - - -·- - - - - - - - - - LUCY BILLINGS I -~ - - - - - - - - - - - - - - - - - - - - -x J .': Plaintiff sues to recover for property damage caused by water that leaked from defendant's apartment to the apartment below owned by plaintiff's subrogo~. Plaintiff moves for summary . judgment on liability, C.P.L.R. § 3212(b) and (e), or to dismiss ~ defendant's affirmative.defenses. C.P.L.R. § 3211(b). Defendant cross-moves for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). Although defendant denies his liability, he stipulated to discontinue his affirmative defenses to his liability, rendering moot the alternative ,relief sought by plaintiff. I. UNDISPUTED BACKGROUND FACTS The parties do not dispute that defendant, as ·the owner of his apartment in the condominium buflding housing his.apartment and the apartment owned by plaintiff's subrogor, individually owned and controlled the heating, ventilation, and air conditioning (HVAC) units in his apartment. Consequently, on December 16, 2010, defendant arranged for a service technician to lloyds.158 1 [* 2] inspect an inoperative HVAC unit in defendant's apartment. The technician advised defendant that ~he unit needed rep1acement. Two days· after the techn~cian' s service, def.endant turned the HVAC unit on for a short pe=riod and then turned it off, as it was blowing cool instead of warm air. On December 30, 2010, 14 days after the unit was inspected and while defendant and his. wife were away from their apartment on vacation; water emanating from defendant's apartment leaked down, into the apartment of plaintiff's subrogor below defendant's apartment, causing damage in that apartment below. II. PLAINTIFF'S ENTITLEMENT TO SUMMARY JUDGMENT Plaintiff claims th~ ~ater that caused damage in the apartment of plaintiff's subrogor leaked from defendant:'' .s HVAC unit. A. Direct Evidence of Defendant's Liability Premises owners owe a duty to ·maintain their premises in a condition that· w.ill not foreseeably cause injury to persons or other property. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 290 (2001); 905 5th Assoc., Inc. v. Weintraub, 85 A.D.3d 667 (1st Dep't 2011). See Bucholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8 (2005); Kalish v. HEI Hospitality, LLC, ~14 A.D.3d 444, 445 (ls~ Dep't 2014); H~sley v. Abels, 84 A.D.3d.480, 482 (1st Dep't 2011); Alex:ander City Tr., 34 A.D.3d 312, 313 (1st Dep't 2006). v. New York To hold defendant liable for a condition on his premises due to his negligence, plaintiff must demonstrate that he created the condition or lloyds.158 2 [* 3] received actual or constructive notice of the condition in time to remedy the condition before it caused the injury claimed. Kalish v. HEI Hospitality, LLC, 114 A.D.3d at 445; Hasley v. Abels, 84 A.D.3d at 482; Alexander v. New York .city Tr., 34 A.D.3d at 313; Mandel v. 370 Lexington Ave., LLC, 32 A.D.3d 302, 303 (1st Dep't 2006). Thus defendant; as the owner of the apartment above the apartment of plaintiff's subrogor, would be liable for damage caused by defendant negligently allowing water to infiltrate the apartment below. Liberman v. Cayre Synergy 73rd LLC, 108 A.D.3d 426, 427 (l'St Dep't 2013). Plaintif.f claims that defendant, as the owner of his apartment who has exclusive control over the HVAC unit that caused the water leak, not only failed to follow the technician's advice to replac~ the ·HVAC unit, but turned it on, causing the unit to leak water. Plaintiff presents no evidence, however, showing defendant's actual or constructive notice of a fcireseeable leak. I~ fact, defendant's depo~ition testimony that plaintiff presents demonstrates defendant was unaware. of any prior water leaks from ariy of his HVAC units, Aff. of Marc B. Schuley Ex. D, at 53, and received ?O warning of this the technician who inspected the inoperative unit. dange~ from Id. at 42. Nor does any evidence in the record, whether deposition testimony or an affidavit, from either an expert or a.lay witness, establish that, by not replacing the HVAC unit and turning· it on for 10 minutes, id. at_ 39..:90, defendant caused it to leak water \ 12 days later. lloyds.158 3 [* 4] ·B. Res Ipsa Loguitur Plaintiff nonetheless insists that this water leak was a conditibn that does ~ot occur absent neglige~ce, entitling plaintiff to an inference of negligence and, in the absence of admissible evidence rebutting this inference, summary judgment in plaintiff's· favor. Res ipsa logui tur, a doctrine bas.ed on circumstantial evidence.of defendant's unspecified negligence, entitles plaintiff to summary judgment only where plaintiff's circumstantial evidence is so convincing and defendant's opposition so weak as to render an inference of defendant's negligence i~escapable. Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209 (2006j; Stubbs v. 350 East Fordham\ Road, LLC, A.D.3d , 2014 WL 2209142, at *l (1st Dep't May ~9, 2014). For res ipsa loguitur to apply, plaintiff must establish that the leak (1) was not caused by plaintiff's contributory action, (2) was caused by an instrumentality in defendant's exclusive control, and (3) was a condition that ordinarily does not occur absent negligence. Morejon v. Rais Constr. Co., 7 N.Y.3d at 209; Smith v. Consolidated Edison Co. of N. Y., Inc., 104 A.D.3d 428, 429 (1st Dep't 2013). Even if plaintiff is entitled to an inference of negligence under res ipsa loguitur, the doctrine does not relieve plaintiff of its burden to establish the absence of any factual-issue whether defendant's negligence caused the damage claimed. James v. Wormuth, 21 N.Y.3d 540, 548 (2007); Morejon v. Rais Constr. Co., 7 ,N.Y.3d at 212. See Smith v. Consolidated Edison Co. of N. Y., Inc., 104 lloyds.158 4 [* 5] A.D.3d at 430. The record of evidence before the court nowhere suggests that plaintiff's ~ubrogor contributed to the water leak. To establish defendant's exclusive control of the instrumentality that plaintiff claims caused the leak, plain~if f relies on the building superintendent's testimony that the individual c.:ondominium unit residents operate their HVACunits. Aff. ·Ex. FI at 3 7. Schuley Plaintiff need not establish defendant Is sole physical access to his premises or that it was impossible for I. anyone other than· defendant to exercise control over his I premises. Hutchings v. Yuter, 108 A.D.3d 416, 417 (1st Dep't 2013); Singh v. United Cerebral Palsy of N. Y. 'city,. Inc., 72 !A.D.3d 272, 277 (1st Dep't 2010). Exclusiv_ity of control bears on the likelihood that defendant was responsible for causing the harm and whether that likelihood is so high that it reasonably eliminates all oth~r explanations for the leak. James v. Wormuth, 21 N. Y. 3d at 548. Defendant d:j._sclaims his exclusive control of the HVAC unit based on the service· technician's access to the unit. Defendant himself, however, granted the technician access to perform the maintenance needed. Schuley Aff. Ex. D, at 39-40; Singh v. United Cerebral Palsy ofN.Y. City, Inc., 72 A.D.3d at 277. Defendant was responsible for the maintenance, repair, and replacement of his HVAC units and their component P,arts. Aff. Ex. D, at 78-79. Schuley Although defendant was away from his apartment when the water leak occurred, plaintiff claims that he lloyds.158 5 [* 6] was negligent before he departed, by turning the HVAC unit on after the technician advised defendant the unit needed replac:::ement, and that that act of turning the unit on caused the subsequent leak. I I ' As the record shows no other entity or individual responsible for the operation or maintenance of the HVAC unit, Scpuley Aff. Ex. D, at 46, defendant establishes the element of exclusive control necessary.for.any inference of defendant's liability for the harm the unit caused. City of New York, Levine v. 67 A.D.3d 510_, 511 (1st Dep't 2009); Hodges v. Royal Realty Corp., 42 A.D.3d· 350, 352 ·(1st Dep't 2007). Even if water ieaking from the HVAC unit were a condition th~t ordinarily does not occur ~bsent negligence, the record still does not reveal any admis~ible evidence that the water leak from defendant's apartment originated from his HVAC unit. The only evidence that the HVAC unit leaked water is defendant's \ . . deposition testimony in a related action of multilayered hearsay from his daughter who was· staying in his apartment _the day.of the leak: Q: What did your daughter say to you? A: She spoke to my wife. Q: Did she ever speak to you? A: No. Q: Did your wife ever talk t~ you about what your daughter said? A: Yes. Q: What did she say? A: There was water. lloyds.158 Apparently one of the units was 6 [* 7] J ' leaking'water. The fir~ department broke down the door and that's basically it. Schuley Aff. Ex. D, at 11-12 .. Consistent with the description of a forced entry to the apartment, defendant further testified that his daughter stated even she was not in 'the apartmertt when the leak occurred December 30, 2010, and never observed the HVAC unit leaking before.the fire department.broke into the apartment. at 97-98. Id. Although a party's admission even when based on . ' hearsay is admissible, People v. Caban, 5 N.Y.3d 143, 151 n.* (2005) ;. People v. Chico, 90 N.Y.2d 585, 589 (1997), defendant testi~ied only that he heard how the leak occurr~d: that he heard his daughter's statement, which is not an admission of the facts in.that statement. ~' Giandana v. Providence Rest Nursing Home, 32 A.D.3d 126, 134 (1st Dep't 2006); rev'd on other grounds, 9 N.Y.3d 859 (2007); People v. Molson, 89 A.D.3d 1539, 154i (4th Dep't 2011) . Any assumption that the water leak came 'from the HVAC unit expressed by an attorney at defendant's deposition was never adopted by defendant. See People v. Campney, ·94 N.Y.2d 307, 312-13 (1999); People v. Woodward, 50 N.Y.2d 922, 923 (1980). Absent a showing that the HVAC unit caused the water leak, defendant's operation of the unit despite having been advised to replace it and whether water leaking from an HVAC unit ordinarily · does not .occur in the absence of negligence are of no consequence~ At most, the record establis.hes· that the leak emanated from defendant's apartment during his absence and that within the prior two weeks an HVAC unit in his apartment had been lloyds.158 7 [* 8] malfunctioning. This evidence falls short of eliminating any reasonable explanation for the water leak originating from defendant's aP,artment other than his negligence, James·v. Wormuth, 21 N.Y.3d at 548; Cortes v. Central El., Inc, 4'5 A.D.3d 323, 324 (1st riep't 2061), sb as to e~tablish an inescapable inference of his negligence. N~Y.3d Morejon v. Rais Constr. Co., 7 A.D.3d at 209; Stubbs v. 350 East Fordham Road, LLC, ; 2014 WL 2209142, at *1; Bunting v. Haynes, 104 A.D.3d 715, 716 (2d Dep't 2013). Therefore the court denies plaintiff's motion for partial summary judgment. C.P.L.R. 3212(b) and (e). § III. DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT Defendant is entitled to :;;ummary judgment dismissing plaintiff's complaipt against him if he establishes that he received no actual or constructive notice of a condition likely to cause a water leak from his apartment. Issing v. Madison Sq. Garden Ctr., Inc., 116 A.D.3d 595, 595 (1st Dep't 2014); Rodriguez v. New York City Hous; Auth., 102 A.D.3d 407, 407 (1st Dep't 2013) i Walters v. Collins Bldg. Servs. r Inc. I 57 ~.D.3d 446, 446 (1st Dep't 2008); Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500 (1st Dep't 2008). He may not obtain summary judgment merely by pointing to the gaps in plaintiff's evidence. Coastal Sheet Metal Corp. v. 'Martin Assoc. r ·Inc. I 63 A. D. 3d 617 I 618 (1st Dep't 2009); Bryan v. 250 Church Assoc., LLC, 60 A.D.3d 578, 578 (1st De~'t 2009); Torres v. Industrial Container, 305 A.D.2d 136, 136 (1st Dep't 2003); Deutsche Bank Natl Trust Co. v .. Spanos, 102 A.D.3d 909, lloyds.158 . \ 911 (2d Dep't 2013). 8 [* 9] Defendant relies on the dismissal of an action that also involved defendant's HVAC unit, by the condominium building's insurer agai·nst Crowne Aire Inc. , which provided the maintenance s·ervices for· the HVAC, unit. Although defendant ·here was another defendant in that action, the court there dismissed only the claims against Crowne Aire. That court concluded that Crowne Aire;s failure to shut off the water,valve from which water flowed to the HVAC unit, to prevent any water leakage, was not negligent, because Crowne Aire addressed the HVAC unit's i I_ malfunctioning for which _service was requested and found no I I indication or danger of water leakage. That conclusion is without collateral estoppe1 effect her~, as the decision did not determine defendant's liability. v. Greenfield, Stein & Senior, LLP, 11 N.Y~3d Tydings 195, 199-200 (2008); City of New York v. Welsbach Elec. Corp., .9 N.Y.3d 124, '128 (2007). See Josey v. Goord, 9 N.Y.3d 386, 339..:90 (2007); Gomez v. Brill Sec., Inc.,· 95 A.D.3d 32, 3:5 (1st Dep't 2012). Although the decision may establish Crowne Aire's lack of actual and constructive notice, it does not in any way show that defendant, who owned arid resided· in his apartment where he used the HVAC unit, did not receive actual or constructive notice ·of the leaking condition, whether in theHVAC unit or originating elsewhere in his apartment, or actually cause that condition himself. Nor does defendant make that showing with admissible evidence. lloyds.158 He presents no evidence that he did not cause the leak 9 [* 10] by turning the HVAC unit on two days after being advised that it needed to be replaced. A.D.3d Stubbs v. 350 East Fordham Road, LLC, , 2014 WL 2209142, ·at *1; Guerrero v. Duane Reade, Inc., 112. A.D.3d 496, 496 (1st Dep't 2013); O'Halloran v. City bf New York, 78 A.D.3d 536, 53~ (1st Dep't 2010); Torres v. New York city Tr. Auth., 305 A.D.2d 165, 165 (1st Dep't 2003). Defendant did.testify that the Crowne Aire technician suggested to defendant that he turn the unit on after it cooled down to test its functioning, Schuley Aff. Ex. D, at 42, which might negate ~ ' his negligence in turning the unit on. Nevertheless, that testimony does not negate his causation of a leaking condition origina;tirtg in his.apartment or at least his notice of such a i. condition before he left for his vacation, giving him time to remedy 'the condition before it caused the damage cl.aimed. Alexander v. New York City Tr., 34 A.D.3d at 313. even .E...,_g_,_, In any event, i1 defendant presented evidence negating his negligence, the testimony of the technician, that he advised defendarit not to operate the HVAC unit after the technician shut it off, Schuley Af f. Ex. E, at 24, ·contradicts defendant's testimony and raises a factual issue that defendant was negligent, an issue that may not be resolved via summary judgment. Justino v. Santiago, 116 A.D.3d 411, 411 (1st Dep't 2014); Hernandez v. 21 Realty Co~, 113 A.D.3d 503, 503 (1st Dep't 2014); Guerrero v. Duane Reade, Inc., 112 A.D.3d at 496; O'Halloran v. City of New York, 78 A.D.3d at 537. lloyds. isa 10 [* 11] \ ' IV. DISPOSITION Consequently, for the reasons explained above, the court I I I. denies both plaintiff's motion for summary judgment ori liability, C.P.L.R. § 3212(b) and (e), and defendant's cross-motion for summary judgment dismissing the complaint. The court also denies a~ C.P.L.R. § 3212(b). moot plaintiff's motion to dismiss defendant's affirmative defenses, C.P.L.R. § 32ll(b), based on his stipulation discontinuing his affirmative defenses to his liability. DATED: June 5, 2014 LUCY BILLINGS, J.S.C . .·1...:ucY,BiLUNGS ".J.8,C. lloyds.158 11

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