Hanover Ins. Co. v Efficient Air Solutions, Inc.

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Hanover Ins. Co. v Efficient Air Solutions, Inc. 2018 NY Slip Op 31464(U) July 5, 2018 Supreme Court, New York County Docket Number: 151277/15 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 54M -------------------------------------------x HANOVER INSURANCE COMPANY a/s/o HUMAN, LLC, DECISION AND ORDER Index No. 151277/15 Plaintiffs, -againstEFFICIENT AIR SOLUTIONS, INC., ITS BASHERT, LLC d/b/a SENSES NEW YORK, INC. and SEAVIEW AIR CONDITIONING COMPANY, INC., Defendants, -------------------------------------------x JENNIFER G. SCHECTER~ J.: Motion sequence numbers 002 and 003 are consolidated for disposition. summary Efficient Air Solutions; judgment pursuant to CPLR Seaview Air Conditioning Company, Inc. to strike EAS' Inc. 3212 (EAS) moves for (sequence 002). (Seaview) cross moves answer and cross-claims and to suppress or strike the deposition testimony of George Herrara (Herrara). Seaview also moves for summary judgment dismissing all claims and cross-claims against it (sequence 003) Background This action involves a fire that occurred on February 11, 2013, at a commercial building located at 138 Fifth Avenue in Manhattan (Building). Corp. (Owner). The Building was owned by 138 NY Realty Owner rented the second floor of the Building 2 of 15 [* 2] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 2 Hanover v Efficient Air Solutions to Its Bashert, LLC d/b/a Senses NY (Senses), a salon. 1 The third floor of the Building was leased to Human, LLC (Human), a recording studio. Heat, Ventilation and Air Conditioning Unit Senses' heating, provided by way of a ventilation and air (HVAC) conditioning was ducted heating/cooling system. heating/cooling system had a single blower motor. The The same blower motor would circulate cooled air in the summer and heated air in the winter. consisted of a The heating component of the system gas-fueled duct furnace. The furnace equipped by the manufacturer with two safety switches. was The safety switches were designed to automatically shut down the furnace in response to an adverse Pursuant to its lease, temperatur~. Senses was cond,i ti on. responsible for servicing and maintaining the subject HVAC system (Affirmation Support Motion Sequence 003 [Sup 03], Ex O at <J[<J[ 31-32; Affirmation in Support of Cross Motion [Sup CM], Ex D at 81). Senses retained both Seaview and EAS to service the HVAC unit. 1 The separate and related action between Owner, Senses, Seaview and EAS (153665/2014) was settled and discontinued (Affirmation in Support Motion Sequence 002 [Sup 02], Ex F). This motion was originally timely but mistakenly filed in that related action. It was subsequently filed under the correct index number and no one now disputes that there .is good cause for entertaining the motion. 3 of 15 [* 3] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Hanover v Efficient Air Solutions Page 3 Work on the HVAC Unit On January 20, 2009, Seaview responded to Senses' call complaining that there was no heat on the second floor of the Building. Seaview performed work between the second and third floors on the furnace's main gas valve and thermostat and it "furnished and installed parts for the systemu (Sup 03, Ex P). '\ .on May 7, 2009,_ maintenance Sen~es agreement ' _., and EAS entered into a service and (Agreement) (Sup 03, Ex Q). The Agreement provided that EAS would exclusively.inspect, repair and replace certain air conditioning parts (id). ·Despite the Agreement, in 2011, EAS inspected and performed mechanical and ... electrical maintenance on Senses' heating unit, wiring and the blower (Sup 03, Ex R) ..f ~ ,. , ' The Fire On February 11,. 2013, there was a fire at the Building. Before the fire, an insurance Hanover Insurance Company (Hanover), policy to Human. Pursuant. to that issued policy, Hanover paid Human $459,715.42 for damage caused by the fire (Affirmation in Opposition to Motion Sequence 002 (Hanover Opp 02] at ~ 9) . Post-fire components electrically inspections were revealed functioning, disconnected, the the 4 of 15 that gas safety ' the valve furnace had switches been were [* 4] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Hanover v Efficient Air Solutions Page 4 disconnected and a transformer lead for the blower motor was dislodged _on the unit _because (Hanover Opp 02 at it was improperly connected 12-18, Ex 1). <Jl<Jl Experts James E. Crabtree, a professional engineer, inspected the location of the destructive incident fire on plaintiff's examination (Hanover Opp of 02, the Ex behalf and attended a evidence 1 removed [Crabtree Aff] from at <JI the 4) . Crabtree_inspected the manner in which the HVAC system was installed and configured (id. at Crabtree system explained consisted of a that <JI the 5). heating gas-fueled_ duct compon_ent furnace' equipped by the manufacturer with two thermal switches. of the which was limit safety The safety switches were designed to automatically shut dowri -the furnace if the temperature rose to the level that the limit switch was set to. Crabtree opined that the fire occurred "because the fan motor - ceased to operate during a call for thermostat) in the space as the resul_t of <JI 20). heat . [a] lead becoming detached from the electrical motor contactor"· (Crabtree Aff at - (from the transform~r lug on the fan "With the fan motor stopped, the duct heater continued to operate with no air flow through it . . . . the heater housing sufficiently increased in 5 of 15 [* 5] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 5 Hanover v Efficient Air Solutions [and] temperature ignite [d] the wooden structural ' members above it" (id. at <][<][ of engineering certainty, 2 6, 31) . _ To a reasonable degree Crabtree concluded that the fire occurred because the thermal limit safety switches that were installed in the furnace at the time of manufacture were disconnected at some point before the fire In support of this motion for submitted the affidavit of Evan K. (id. at summary Haynes, <JI 32) judgment, a EAS professional Haynes engineer and certified fire explosion investigator. was present at two evidence examinations and noted that there was fire da~age .. to the floor joints above the furnace (Sup 02, Haynes Affidavit [Haynes] at <][<JI 2-3, 7) He observed that the ., thermal limits within the furnace were bypassed (id. at 12) . <JI<][ 9, He further noted that,the thermal profection from the factory included a thermostat and thermal fuse located inside of the furnace and that these elements are not readily visible from the exterior of the unit (id. at <JI 13). Haynes opined "to a reasonable degree of engineering certainty, the furnace was the heat source for the fire . floor joists located directly above . which ignited the wood the furnace" and that "furnace wiring would have ha~ to have been traced within the unit . . to determine that the internal thermal protection was bypassed" (id. at <JI<][ 11, 14). 6 of 15 [* 6] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 6 Hanover v Efficient Air Solutions William P. Nolan, a certified fire explosion and vehicle investigator , submitted an affidavit on behalf of EAS as well (Sup 02, evidence Af f Nolan [Nolan] ) . examination~ He too at tended the He concluded that th~ joint damage to the furnace was consistent with overheating (Nolan at ~ 9). Deposition Testimony George Herrara (EAS) Herrara was an EAS employee from about 2005 through 2015 (Sup 03, Ex K [Herrara] at 22). 2016. He was deposed on April 15, He testified that he never saw the contract between EAS and Senses and that EAS would service air conditioners (id. at 23, 38-39). He explained that to perform certai? work on the air conditioner, a cover would have to be removed from the fan coil unit' on the side of· the bl9wer. He performed work on the blower motor as well stated that EAS as checked for vibration to make sure wires were not loose or broken (id. at 4 6-4 8 I 52-54) o Bruce Conroy (Senses) Bruce Conroy is the owner of Senses (Sup CM, Ex D at 15). He testified that he only knew Seaview and EAS by name (id. at 55-60) . He recalled system" (id. at 60-61). that EAS would "maintain [the] HVAC When asked whether EAS maintained the heating system as well as the air conditioning system, 7 of 15 he [* 7] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 7 Hanover v Efficient Air Solutions responded that he "didn't think there was a difference" at 61-61, ~ould Senses 99-100). call Seaview and later EAS when there was a problem with the HVAC unit Lennox King (id. (id._at 83-84). (Seaview) ,. Lennox King (King) was deposed on behalf of Seaview (Sup 03, Ex L [King]). He performed work for Senses at least ten times over a number of years .• 16-17, 45). (Sup 03, Ex M [King Further] at .i He explained that the first thing he does when on a "no-heat call" is attempt to diagnose the problem (King at 4 6) . He would check the thermostat, then with a meter he would check whether the furnace was getting powei and then he would "check o0t thing~ like the safety switches" (King at 47- 48, 53, 75--77, 118-19, 135-37) . __ Safety switches' were always accessible, 105-06). even if a pane,l just had to be removed (id. at If the problem remained he would continue to- check the system further by checking things like the gas valve, the motor, and the fan (id. at 55, 83-85). Very rarely, he would have to jump or temporarily bypass some of the safety switches in order to test some of the other components of the system (id. at 56-58, 106; King Further at 36-37). work order by Seaview for Senses, thermostat l and gas valve '[were] . '. . ' - . ·~ 8 of 15 Presented with a - ' - King stated that bad on this "[t]he particular [* 8] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Hanover v Efficient Air Solutions invoice" but he had no spe~ific Page 8 recollection of the job (id. at 62-65, 70-71, 88, 112). Analysis Summary Judgment is a drasti~ rem~dy that should not be granted if there is any doubt as to the existence of material , i. r triable issues(see Glick & Dolleck·v Tri-Pac Export Corp, 22 NY2d 439, 441 [1968) [denial of summary judgment appropriate where an issue is "arguable"]; Sosa v " 46th LLC, 101 AD3d.490, 493 [1st Dept 2012]). m~tter Develop. The burden, which is "a heavy one," is on the movant to make a of entitlement to judgment as a Street pr~~a fac~e showing of law by presenting evidence in admissible form demonstrating the' absence of any disputed material facts (see William J. " Jena ck Es ta te Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013)). "Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden summary judgment. a prima to otherwis'e persuade the Court against Indeed, the moving party's_ failure to make facie ·showing of entitlement to surrunary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id.). 9 of 15 [* 9] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Hanover v Efficient Air Solutions Page 9 As recognized by all of the parties, a party who enters into a contract to render services may assume a"duty of care to third parties if it launches a force or instrument of harm (Espinal v (2002]). Melville Snow Launching a Contractors, 98 NY2d 136, 140-41 force or instrument of' harm has been interpreted as creating or exacerbating a dangerous condition ~ . ; (, ,; . ' 150 .AD3d 542, (see generally Brown v Garda CL Atlantic, Inc., 543 [l5t Dept 2017]). Here, if any of the parties ,disconnect.ed the safety switches on the .HVAC unit, \ force or allowed instrument for ·the of it can be ·said to-have launched a ., . harm by. causing a condition that dangerous overheating of the unit. The t parties' s~bmissions, in~luding · the~r ·~ffida~its, expert ,. establish that because the blower was ' - safety switches were not y causing the fire. , -"'" , \ working and the . connected, • not the furnace overheated .. Both EAS and Seaview performed work on the heating components of· the HVAC unit, including wiring work. The evidence establishes that materi.al issues ;.of fact exist concern.ing whether Seaview or EAS disconnected the safety wires, launching a force or instrument of harm that caused the fire and damaged Human' s York Mut. Ins .. Co. recording studio .(see Greater New v ERE LLP, 125 AD3d 417 ('1 5 t Because neither Seaview nor EAS established, ;. 10 of 15 Dept 2015]). as a matter of I ./ I [* 10] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 10 Hanover v Efficient Air Solutions law, that it did not launch an instrument of harm, their motions for summary judgment are denied. Similarly, because questipns of fact exist concerning the cause of the fire, its cross denied as claims is Seaview's motion for summary judgment on for contribution and its motion to dismiss indemnification EAS' cross is claim for indemnification. Cross-Motion by Seaview to Strike EAS' Answer On April 15, 2016, EAS produced Herrara for a deposition at 10:00 in the morning (Sup CM, Ex F). EAS' counsel referred to Herrara as "his client" though he was EAS' former employee (see e.g. id. at 10:19; see id. at 20:2-4; before 1:40 p.m., and about 15 minutes 22:2~). into Shortly Seaview's questioning of Herrara, EAS' attorney placed the following on the record: "The witness has an appointment at 2 p.m. and has to leave now to make· his appointment. Also, Seaview's witness is here and waiting for his deposition to commence. We've decided to end this deposition at this point and t~ reconvene at a later ~greed-upon time . to continue with the depositi6n of this witness. · And we will produce Mr. Herrara at a mutually convenient date and time as agreed ·upon by all the parties" (id. at 142:10-23). ' 11 of 15 . ·'' [* 11] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Hanover v Efficient Air Solutions Page 11 Counsel for Seaview responded: elementary questions further deposition" EAS' attorney Seaview's own ~e And "We only reserve our got through ·r~ght to his (id. at 143: 3-7): subsequently witness would expressed be skepticism completed' that day that and suggested that both witnesses could return at a later date to finish up (id. at 146) .· statement that she In response to Seaview's attorney's had· a right to ask Herrara questions necessary for her client's defense, EAS' counsel emphasized: "nobody's preventing you from doing that. But we would have to reschedule the completion of his deposition by you. And we're willing·~o do that. And we're not saying that this witness will not be produc~d" (id. at 148i2-8) He later reaffirmed: 'J "And we are going to produce him for the completion of his deposition at a mutua1ly convenient date and time, as has been st~ted by counsel" (id. at 151: 913) . ' Despite numerous demands, however, EAS.failed to produce Herrara for a continued deposition and, despite numerous court orders, EAS has failed to produce any other witness for examinatiori before trial. 2 2 At court conferences, EAS insisted that Herrara was a former employee and it was unclear that EAS had already earlier voluntarily produced Herrara and committed to bringing him back. Thus, the court ordered Seaview to 12 of 15 [* 12] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 lndex No. 151277/15 Page 12 Hanover v Efficient Air Solutions Pursuant to CPLR 312~, Seaview cross' moves to strike EAS' answer and cross· claims, to suppress deposition to testimony and preclude and· strike Herrara' s EAS from calling a witness at trial based on EAS' failure to produce Herrara for a continuing deposition despite its representations that it would do so (Sup CM at 8). CPLR 3126 broadly authorizes the court to make such orders that "are just" to ensure compliance w.i,th discovery 1 orders. Herrara was under EAS' control when it voluntarily produced him for deposition and committed to producing him again so that his deposition could be completed. therefore orders EAS to either produce continued deposition within 30 days of the The court Herrara for e-fi~ing his of this l.' •. decision and order or within that period to serve 'on him a ... ~ copy of this order along with a cover letter informing him that it is ORDERED that he must appear for the completion of his deposition otherwise he may be,held in contempt of court. Unless it produces Herrara for continuation of his deposition, subpoena Herrara and ordered EAS to provide the identity of another witness .. There is no need, however, to-subpoena Herrara for a continued deposition as he already consented to jurisdiction by appearing for his examination before trial in April 2016. He left his deposition so that he could make an appointment but promised to return and finish.· He must honor that obligation or risk being held in contempt. 13 of 15 [* 13] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 13 Hanover v Efficient Air Solutions EAS must e-f ile proof of compliance with the notification requirement (including proof of service and a copy of the cover letter) within 35 days of the e-filing of this decision and order. If Herrara deposition, including fails Seaview holding to appear 'for the completion of his may_ move Herrara in for any appropriate contempt, preclusion relief · and/or seeking an adverse inference based on his nonappearance. The court is not convinced on this record that the drastic remedy of striking EAS' pleadings is appropriate. Accordingly, it is c ORDERED that EAS' motion for summary judgment (sequence 002) is denied; and i t is further ORDERED that Seaview's cross motion is granted to the extent that Herrara must appear for deposition~ ORDERED the completion of his and it is further that EAS ·must either produce Herrara for a continued deposition or: serve him with a copy of this order along with an accompanying cover letter consistent with this decision within 30 days of the e-filing of this decision and order; and it is-further ORDERED that if Herrara fails to appear to complete his deposition, Seaview may move for additional relief including 14 of 15 [* 14] INDEX NO. 151277/2015 NYSCEF DOC. NO. 199 RECEIVED NYSCEF: 07/05/2018 Index No. 151277/15 Page 14 Hanover v Efficient Air Solutions holding Herrara in contempt, preclusion and/or seeking an adverse inference at trial; and it is further ORDERED that the discovery set forth ~n this decision and order may proceed notwithstanding the filing of the note of issue; and it is further ORDERED that Seaview's motion for summary (sequence 003)· is denied. This is the decision and order of the court. Dated: July 5, 2018 · HON. 15 of 15 judgment

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