Brun v Wallach

[*1] Brun v Wallach 2014 NY Slip Op 50028(U) Decided on January 16, 2014 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 16, 2014
Supreme Court, Kings County

Joseph Brun, Plaintiff,

against

Michael Wallach, JEAN WALLACH and BLAZE ELECTRIC, INC., Defendants.



16982/10



Plaintiff was represented by Kliopatra Vrontos, Esq. of Rubenstein & Rynecki Esqs. Defendants Michael Wallach and Jean Wallach were represented by Jennifer L. Kelley, Esq. of Lester Schwab Katz & Dwyer, LLP. Defendant Blaze Electric, Inc. was represented by Patrick McConnell, Esq. of the Law Office of James J. Toomey.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant Blaze Electric, Inc. for an order, pursuant to CPLR 3212, dismissing the Complaint as against it:

-Notice of Motion for Summary Judgment

Affirmation in Support

Exhibits A-I

-Affirmation in Opposition

-Affirmation in Opposition

-Reply Affirmation

Plaintiff was represented by Kliopatra Vrontos, Esq. of Rubenstein & Rynecki Esqs. Defendants Michael Wallach and Jean Wallach were represented by Jennifer L. Kelley, Esq. of Lester Schwab Katz & Dwyer, LLP. Defendant Blaze Electric, Inc. was represented by Patrick McConnell, Esq. of the Law Office of James J. Toomey.

In this admittedly unusual negligence action, the Complaint and Verified Bill of Particulars are not helpful in ascertaining either the alleged facts or legal theories of plaintiff Joseph Brun's claims against defendants Michael Wallach, Jean Wallach, and Blaze Electric, Inc. On February 24, [*2]2010, Plaintiff allegedly sustained personal injuries when he fell in his apartment at 397 1st Street, Brooklyn. Defendants Michael Wallach and Jean Wallach (the "Wallach Defendants") were the then-owners of the building; defendant Blaze Electric, Inc. had, prior to Plaintiff's alleged fall, done electrical work in Plaintiff's apartment at the request of the Wallach Defendants.

As summarized by his counsel, "Plaintiff's oxygen machine lost power while he was sleeping due to a faulty electrical condition; the oxygen machine's shutdown left plaintiff gasping for air and resulted in his dizziness and ensuing fall." (Affirmation in Opposition ["Plaintiff's Opposition"] [neither paragraphs nor pages numbered].) As understood by defendant Blaze Electric, and not disputed by Plaintiff, his claim against it "seems to be that in the course of fixing electrical violations in plaintiff's apartment, [it] somehow created a situation in which the voltage of plaintiff's oxygen machine caused a circuit breaker to trip causing the machine to go off causing plaintiff to get up from bed and trip over some furniture" (Affirmation in Support ["Blaze's Affirmation"] ¶ 34.)

Blaze Electric moves for an order, pursuant to CPLR 3212, dismissing Plaintiff's Complaint as against it, as well as the cross-claims asserted by the Wallach Defendants. "A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact." (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003].) "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." (Id.) "In deciding a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference." (Zapata v Buitiago, 107 AD3d 977, 978 [2d Dept 2013].)

Plaintiff's Complaint sounds exclusively in negligence. The "elements necessary to a cause of action in negligence" are "(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof." (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; see also Donald v State of New York, 17 NY3d 389, 395 [2011].) On this motion, defendant Blaze Electric asserts that Plaintiff cannot establish any of these closely-interrelated "elements" of his negligence claim.

"The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question, for determination by the courts." (Sanchez v State of New York, 99 NY2d 247, 252 [2002].) "Although the existence of a contractual relationship by itself generally is not a source of tort liability to third parties, . . . there are certain circumstances where a duty of care is assumed to certain individuals outside the contract." (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, ___ [2013].)

The Court of Appeals has "identified three sets of circumstances . . . in which a duty of care to noncontracting third parties may arise out of a contractual obligation or the performance thereof." (See Church v Callahan Indus., 99 NY2d 104, 111 [2002].) [*3] "The first is where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk . . .The second set of circumstances giving rise to a promisor's tort liability is where the plaintiff has suffered injury as a result of a reasonable reliance upon the defendant's continuing performance of a contractual obligation . . .Third, [the Court has] imposed tort liability upon a promisor where the contracting party has entirely displaced the other party's duty to maintain the premises safely'." (Id. at 111-12 [quoting Espinal v Snow Contrs., Inc., 98 NY2d 136, 140 (2002)].)

Here, Blaze Electric asserts that Plaintiff "is not able to demonstrate" that any of the stated bases for a contractor's duty exists (see Blaze's Affirmation ¶ 33). But "a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (See River Ridge Living Ctr., LLC v ADL Data Sys., Inc., 98 AD3d 724, 725-26 [2d Dept 2012] [internal quotation marks and citations omitted].) Nonetheless, the "detrimental reliance" basis for a contractor's tort duty to third parties is inapposite, and Blaze Electric makes a prima facie showing that it did not "entirely displace" the Wallach Defendants' duty to keep the electrical system in Plaintiff's apartment reasonably safe. Blaze Electric relies upon the deposition testimony of Plaintiff, the Wallach Defendants, and Francis Corporale, a witness for Blaze. (See Blaze's Affirmation ¶¶ 8, 12, 18, 25.)

As to whether Blaze Electric, "while engaged affirmatively in discharging a contractual obligation, create[d] an unreasonable risk of harm to others, or increase[d] that risk" (see Church v Callahan Indus., 99 NY2d at 111), Blaze understands that "Plaintiff is alleging that his oxygen machine went off because of an overload on the outlet which was not a dedicated outlet" (see Reply Affirmation ¶ 5.) Blaze Electric contends, "There was no duty for Blaze to install a dedicated outlet . . . and Blaze was never requested to install a dedicated outlet by anyone." (See id.)

But Blaze Electric ignores the contention of Plaintiff (see Plaintiff's Opposition) and the Wallach Defendants (see Affirmation in Opposition ["Wallach Defendants' Opposition"] ¶¶ 6-8) that the outlet installed by Blaze, into which Plaintiff's oxygen machine was plugged when its electrical power failed, was not properly grounded, and, therefore, Blaze Electric makes no showing to the contrary. Moreover, although neither Plaintiff nor the Wallach Defendants cite to evidence that Blaze Electric was "requested to install a dedicated outlet by anyone," they do cite to evidence that Blaze was aware that the outlet it was installing would be used to power Plaintiff's oxygen machine (see id. ¶ 5; Plaintiff's Opposition.)

The "instrument of harm" category of contractor duty was first described by Judge Cardozo in H.R. Moch Co. v Rensselaer Co. (247 NY 160, 168 [1928]), and was recently used by the Court of Appeals in Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1.) The conduct of the alleged [*4]tortfeasor that falls within the category is not precisely defined, particularly where the allegedly negligent conduct can be articulated as both an act and failure to act. (See Fried v Signe Nielsen Landscape Architect, P.C., 34 Misc 3d 1212 [A], 2012 NY Slip Op 50062 [U] [Sup Ct, Kings County 2012].)

In Landon (22 NY3d 1), the Court of Appeals recognized that a testing laboratory owed a duty to a plaintiff whose "oral fluid sample" it tested (see id. at 1-2), and upheld a complaint that alleged that the lab "did not exercise reasonable care in the testing of plaintiff's biological sample when it failed to adhere to professionally accepted testing standards" (see id. at 7.) The court made no distinction based upon act or omission among the plaintiff's various specific allegations of negligence (see id. at 3-4.) In any event, for present purposes, at the least the alleged improper grounding of the outlet installed by Blaze Electric qualifies as an "affirmative act of negligence" (see Fecht v City of New York, 244 AD2d 315, 315 [2d Dept 1997].)

The primary authority relied upon by Blaze Electric, Milliken & Co v Consolidated Edison Co. of NY, Inc. (84 NY2d 469 [1994]), is, for the most part, inapposite. There, the Court of Appeals held that the tenants of a commercial building could not recover from the utility for physical damage and associated economic losses allegedly resulting from disruption of the flow and supply of electricity to the building (see id. at 476.) Recognizing that "determining the scope of the duty [of a utility] and the consequent sphere of potential liability is fundamentally a policy question, with the objective being to fix the entity's orbit of duty so as to limit the legal consequences of wrongs to a controllable degree" (see id. at 477 [internal quotation marks, brackets, and citations omitted]), the court held that "tenants of a building, as such, are not a sufficiently narrowly defined class' and should not be relieved of the usual juridical relationship prong in order to garner a potential liability against the utility" (see id. at 478 [quoting Strauss v Belle Realty Co., 65 NY2d 399, 402 (1985)].) The court had previously held that "Con Edison is not answerable to the tenant of an apartment building injured in a common area as a result of Con Edison's negligent failure to provide electric service as required by its agreement with the building owner." (See Strauss v Belle Realty Co., 65 NY2d at 405.)

In Milliken (84 NY2d 469), however, the court distinguished another prior ruling, Koch v Consolidated Edison Co. (62 NY2d 548 [1984]), where it held that the plaintiff could recover damages from Con Ed "for physical injuries to persons and property directly resulting from the service interruption" that is known as the 1977 blackout in New York City (see id. at 552-53.) The court concluded that "all the plaintiffs were third-party beneficiaries of the agreements" between Con Ed and the Power Authority of the State of New York (see id. at 559.)

Plaintiff's claim here is not based upon a third-party-beneficiary theory, and this Court does not suggest that such a claim would be viable. The decision in Koch, however, provides a contrast to Milliken and Strauss by illustrating a "narrowly defined class" of potential plaintiffs (see Milliken & Co. v Consolidated Edison Co. of NY, Inc., 84 NY2d at 478.) Here, Blaze Electric dealt directly with Plaintiff as well as with the Wallach Defendants, and, if Plaintiff is believed, Blaze was aware of his specific requirements for the outlet being installed, i.e., to power his oxygen machine. [*5]

Two recent Appellate Division decisions are directly on point. St. Paul Travelers Cos., Inc. v Joseph Mauro & Son, Inc. (93 AD3d 658 [2d Dept 2012]) involved a fire in a lessee drug store that damaged the drug store and neighboring premises. Defendant Mauro was an electrical repair company that had been hired by the lessee to repair an electrical panel box at the drug store. The plaintiffs, which included insurers of various business and premises owners who sustained losses from the fire, alleged that Mauro "negligently repaired the electrical panel box by merely replacing a burned-out circuit breaker without determining the underlying cause of an overheating problem, and that this negligence was the proximate cause of the fire." (See id. at 659.)

The Second Department in St. Paul (93 AD3d 658) held that Mauro's motion for summary judgment was properly denied. (See id. at 661.) "As to the noncontracting third-party insureds," a tort duty would be found where the contractor, "while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases the risk, sometimes described as conduct that has launched a force or instrument of harm." (See id. [internal quotation marks, brackets, and citations omitted].) Mauro "failed to meet its initial burden of demonstrating . . . that while repairing the electrical panel box, it did not create an unreasonable risk of harm to others, or increase that risk, as the subrogees of the noncontracting third-party insureds alleged." (See id.)

In Smith v Consolidated Edison Co. of NY, Inc. (104 AD3d 428 [1st Dept 2013]), the plaintiff experienced an electric shock at an intersection where defendant Petrocelli Electric Co. was performing electrical repair and maintenance work pursuant to its contract with the New York City Department of Transportation. The First Department held that Petrocelli's motion for summary judgment should have been denied in that the plaintiff made a sufficient showing as to the applicability of the doctrine of res ipsa loquitor (see id. at 428-29.) (This Court notes that, in his Verified Bill of Particulars, Plaintiff states that he relies on that doctrine, but no party addresses it in connection with this motion.) As to Petrocelli's contention that it owed no duty to the plaintiff, the court states, "if a jury finds, under res ipsa loquitor, that Petrocelli negligently caused plaintiff's electrical shock, it necessarily follows that Petrocelli launched a force or instrument of harm." (See id. at 430.)

In sum as to the duty element of Plaintiff's negligence claim, there are triable issues of fact as to whether defendant Blaze Electric owed Plaintiff a duty to use reasonable care in the installation of an electrical outlet that would be used by Plaintiff to supply power to his oxygen machine.

With respect to the breach-of-duty element, Blaze Electric argues only that "[t]here is no evidence that any of the work of Blaze was performed negligently and no evidence to show that negligence played a part in the tripping of the circuit breaker." (See Blaze's Affirmation ¶ 34.) Like Mauro in St. Paul (93 AD3d 658), "[i]nstead of affirmatively demonstrating the merit of its defense, [Blaze Electric] merely point[s] to gaps in its opponents' proof, which is insufficient to make out a prima facie showing of entitlement to judgment as a matter of law" (see id. at 661.)

Moreover, Blaze Electric does not address the deposition testimony of Plaintiff quoted in the [*6]Wallach Defendants' Opposition that, after the accident, he was told by an inspector that the outlet installed by Blaze was not properly grounded (see Wallach Defendants' Opposition ¶¶ 6-7.) Although this hearsay is not "evidence," admissible evidence as to the inspector's findings might be available at trial (see Haleemah M.S. v MRMS Realty Corp., 28 Misc 3d 443, 450-51 [Sup Ct, Kings County 2010].)

Finally, Blaze Electric contends that Plaintiff cannot establish the causation element of his negligence claim. Blaze disputes both causation-in-fact, stating, "The cause of the accident was plaintiff's own conduct in putting too many appliances on the one outlet" (see Blaze's Affirmation ¶ 38); and proximate cause, contending that the "work of Blaze was too remote from the actual cause of [Plaintiff's fall] to be deemed a proximate cause of that" fall (see id. ¶ 34.) The short answer to Blaze's disputation of causation-in-fact is that Blaze cites to no evidence to support it.

"In words familiar to every first-year law student, the risk reasonably to be perceived defines the duty to be obeyed'." (Sanchez v State of New York, 99 NY2d at 252 [quoting Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 (1928)].) "Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent." (Id.; see also Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315 [1980].) "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury." (Id. at 315.) "Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established." (Id.)

In support of its contention that Plaintiff cannot establish proximate cause, Blaze Electric cites a case in which the Fourth Department held that "defendant established as a matter of law that its electrical work was not a proximate cause of decedent's accident and plaintiff failed to raise a triable issue of fact. (See Sorrento v Rice Barton Corp., 17 AD3d 1005, 1006 [4th Dept 2005].) These conclusions are not explained, and, in any event, "there [was] no allegation of an electrical malfunction or of any defect in defendant's work." (See id.)

Blaze Electric contends that "[i]t was unforeseeable that the plaintiff would overtax the electrical outlets in his bedroom which would cause his respirator to stop functioning and by doing so he would be woken up by the alarm on his respirator and that he would get up and fall" (Reply Affirmation ¶ 8.) Putting aside the lack of evidence to support the factual basis for the contention, i.e., that Plaintiff "overtax[ed] the electrical outlets," Blaze fails to address the principle that "[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent" (see Derdiarian v Felix Contracting Corp., 51 NY2d at 316.) It seems reasonably clear that, if Plaintiff succeeds in proving that Blaze Electric was negligent in failing to install an outlet sufficient to power his oxygen machine, the risk of "overtaxing" the electrical system would be among the risks that made Blaze's conduct negligent. [*7]

Blaze Electric does not make a prima facie showing as to the lack of proximate cause simply by incantation that the relationship between Blaze's negligence and Plaintiff's injury is "too remote" (see Blaze's Affirmation ¶ 34), or is "so attenuated that Blaze Electric cannot be found liable" (see Reply Affirmation ¶ 8.) In its statement of the chain of events between its alleged negligence and Plaintiff's fall, Blaze rather disingenuously omits Plaintiff's allegations that the "oxygen machine's shut down left plaintiff gasping for air and resulted in his dizziness and ensuing fall" (see Plaintiff's Opposition.) It seems reasonably clear that both dizziness and a fall would be foreseeable consequences of a lack of oxygen.

It also seems reasonably clear, however, that proof of Blaze Electric's awareness that the outlet it installed would be used to power Plaintiff's oxygen machine would be highly significant, if not essential, to the existence of a duty, in that it would circumscribe the class of potential plaintiffs for negligent electrical service; to a finding that Blaze was negligent, in that it would define the nature and likelihood of injury if there was a lack of reasonable care and what reasonable care would require to avoid or minimize the risk; and to proximate cause, in that it would determine whether the type and manner of injury that in fact occurred falls within the foreseeable risk. None of the parties sufficiently addresses these issues, and anything further from this Court would be premature.

Nonetheless, it is Blaze Electric that has moved for summary dismissal, and Blaze Electric bears the burden of demonstrating that there is no need for a trial. It has not done so.

The motion of defendant Blaze Electric, Inc. for an order dismissing the Complaint and cross-claims is denied.

January 16, 2014___________________

Jack M. Battaglia

Justice, Supreme Court