Ancient Mariner Cottages Inc. v National Grid USA
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Ancient Mariner Cottages Inc. v National Grid USA 2018 NY Slip Op 31933(U) August 7, 2018 Supreme Court, Suffolk County Docket Number: 13-3104 Judge: Denise F. Molia 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] SI !ORT FORM ORDER INDEXNo. 13-3104 CAL. No. 17-009860T SUPREME COURT - STATE OF NEW YORK l.A.S. PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA Acting Justice Supreme Court MOTION DATE 10-27-17 01-05-18 ADJ. DATE Mot. Seq. # 002 - MD ---------------------------------------------------------------X ANCIENT MARINER COTTAGES INC., dba BURCLIFFE BY THE SEA, Plaintiff, - against NATIONAL GRID USA and LONG ISLAND POWER AUTHORITY, GENNET, KALLMANN, ANTIN & ROBINSON Attorney for Plaintiff 140 Broadway, 28th Floor New York, New York 10005 HAMMILL, O' BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorney for Defendant 6851 Jericho Turnpike, Suite 250 Syosset, New York 11791 Defendants. -------------------------------------------------~------------X Upon the following papers numbered I to_ll read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers I to 16 ; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 17 to 20 : Repl ying A ffiduvits and supporting papers..21_; Other _ : (:!llid afte1 liea1i11g cotm~el in sttppo1 t a11d opposed to the 111otio11) it is. ORDERED that the moti on by defendants National Grid USA and Long Island Power Authority for summary judgment dismissing the complaint is denied. The plaintiff commenced chis action seeking recovery for damage to its property that allegedly occurred on October 30, 2011. The pl aintiff alleges that defendants National Grid USA ("National Grid") and Long Island Power Authority ('"LlPA") failed to use reasonable care in , among other things, maintaining, installing and inspecting their eq ui pment and power lines, which caused the plaintiffs cottages, located at 397 Old Montauk Highway. Montauk. New York (the "premises" or "property"), to loose power during a weather event. The plaintiff further alleges that defendants negligently failed to shut off the electricity flowing to the plai ntiffs property before making repairs, and, as a result of defendants ' negligence, there was a fire on the plaintiffs property, causing property damage totaling $67,099.34, damage to contents inside the property totaling $1 1.959.54, and loss of income totaling $3,219.73. [* 2] Ancient Mariner Cottages v National Grid Index No. 13-31 04 Page 2 Defendants now move to dismiss the complaint pursuant to CPLR 3126 on the ground of spoliation. They argue that the circuit breaker panel that caught fire on the premises was not preserved for litigation, and, inasmuch as it was the ··sole crucial and material piece of evidence" in the case, they are prej udiced in defending the claims against them. Defendants also seek summary judgment on the ground that their expert opined that the fire was due to a fa ilure of the plaintiff's electrical equipment. Defendants submit, among other things, the pleadings, the affidavit of their expe11, and the deposition transcripts of the parties and witnesses. The plaintiff opposes the motion, arguing that the expert affidavit should not be considered, and that defendants failed to meet their burden on the motion. Robert Burke testified that he was part owner of the plaintiff, and that he lived on the premises in October 2011 when the incident occurred. The night before the incident, Burke woke at approximately 1:00 a.m . and heard thunder. He observed that there was no power in the clock that was next to his bed, but when he walked into the bathroom and turned on the lights, the lights turned on. He realized that he may have lost '·one leg of power'' because of the storm. When he woke on the morning of October 31, the electricity in his kitchen seemed to operate normally; however, some areas of the home did not have electricity, causing him to call LIPA at approximately 8:00 a.m. While doing some house work at approximately 10:00 a.m., he observed that a wire that was connected to the premises was dangling from a pole. A crew ofLIP A workers arTived at approximately I 2:00 p.m., and Burke directed them to the dangling wire. While the worker was reattaching the wire, he commented that '"this thing sure is drawing a lot of current." Simultaneously, Burke observed smoke com ing from the garage, and the worker was immediately told to "kill all the power to the house.·· When he entered the garage. Burke observed flames in the electrical panel. According to Burke, the fire marshal conducting an investigation as to the cause of the fire told him that there "was probably a lightning strike" that caused damage to the breakers in the panel, and that the fire might have started while Burke was asleep. The fire marshal stated that the fire did not progress because the connection between the pole and the property was broken. Burke further testified that "men in suits" arrived at the premises to speak to the workers after the fire. and that those men inspected the panel and the meter, and instructed the workers to remove the meter. Burke did not speak to the men in suits, and no one asked Burke to "preserve anything. " As a result of the fire damage, Burke hired a general contractor to make repairs, as well as an electrical company to re-wire the pre1niscs and to replace the e l ectrical panel that was in the garage. The work was completed. and in April 2012. po·wer was restored to the property. Burke was not aware of the location of the damaged electrical panel, and the electrician he hired did not tell him what caused the fire. Burke further testified that his insurance company also inspected the premises after the incident. Ly1111e o·Rourke testified that she was an adjuster for the plaintiff's insurance company, and she inspected the property a few days aA:cr the incident. She testified that she was not an electrician or an engineer; however, she had worked in the industry for a number of years . According to O ' Rourke the cause and origin of the tire was the ·'arc[]ing at the pole when the LIPA workmen came to make the repairs due to the power outage,. and the arching .. transferred through the line into the circuit breaker box into the garage." Although O' Rourke would somerimes retain the services of a consultant to detennine the cause and origin of the fire, the insurance company teJt that .. the cause and origin was cut and dry" inasmuch as Burke had witnessed the .. arc[) ing"" and the subsequent smoke in the garage. O'Rourke observed the electrical panel during her inspection; however. she believed thar the panel had been discarded since that time. O'Rourke recalled that somctim~ after Burke was paid by the insurance company, defendants were notified of a subrogation claim. and she could not recal 1whether defendants contacted her about conducting an inspection [* 3] Ancient Mariner Cottages v National Grid Index No. 13-3104 Page 3 of the panel with regard to that claim. O 'Rourke could not recall whether she requested that Burke retain the electrical panel. Michael McLaughl in testified that he worked for National Grid as a dispatcher at the time of the incident and that he sent the journeymen linemen to the premises. He testified that a field supervisor met with the linemen after the fire occun-ed to make a determination as to liability. However, because the fire marshal deemed the issue an ··inside problem,. and National Gird "only own[ed] up to the connection on the house," Burke concluded that National Grid was not responsible and the linemen moved on to other jobs. The incident was not one worthy of a ·•fuJI blown investigation"; therefore, no incident report was created. Although a lineman would generally verify that an electrical panel was installed before energizing a newly constructed home, it was not general practice for the lineman to check the electrical panels of existing homes before restoring electrical service. The condition of the electrical panel was the home owner's responsibility. James Bogen testified that he was one of the journeyman lineman who responded to the premises. When he aITived, Bogen observed the that a wire from the house to the pole was dangling because of a storm that occurred the day before. Bogen did not enter the cottage, and did not speak to the owner before commencing !us work. In his experience. he had not inspected a horneowner's electrical system before beginning to work on the outside electric system, and he was not required to perform such an inspection. He recalled that there was a s park when the dangling wire was reconnected, which was not unusual. When Bogen observed the smoke from the garage, he instructed the lineman who was reconnecting the wire to cut the electricity flowing to the house. He recalled that he observed the damaged electrical panel from afar after the fire. and that he did not inspect it. Thomas Baker testified that he was the fae marshal who responded to the fire at the premises. He photographed the damaged electric paneJ, and concluded that there was a "violent occurrence within the electrical panel" that was caused by an ··unspecified arc.·· He described an arc as a break in a wire that caused electricity to try to '·jump across that break." The a.rci11g appeared to have occurred near or at the electrical panel, and Baker could not determine the exact location within the panel because ofthe damage. He testified that it was usual practice for the insurance company to investigate further and conduct a forensic analysis on the panel to determine the exact location of any failure. In his report conceming the fire, Baker indicated that the cause was an unspecified short circuit Additionally. George Ello. ·who was a manager at PSEG Long Island as well as an electrical engineer and certified fire investigator. averred in an affidavit that he reviewed the photographs of the breaker panel, among other things. but he did not inspect the electrical panel because it was not preserved. He stated that the breaker panel was owned by the plaintiff, and the fire occurred when the wire was reconnected because of ''iss ues at the plaintiff s circuit breaker. '' He further averred that because the electrical panel was not avai lable, it was impossible to determine the exact nature of the failure. He stated that it was "not possible for the re-connection of a hot leg to cause a failure at the customer's circuit breaker panel, absent any defective condition with the customer-owned equipment." It is well established that the: 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 issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Wbiegrad v New York Univ. Med. Ctr. , [* 4] Ancient Mariner Cottages v National Grid Index No. 13-3104 Page 4 64 NY2d 851 [ l 985] ). The burden then shifts to the party opposing the motion, which must produce evidentiary proofin admissible form sufficient to require a trial ofthe material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 200 l]; Rebecclti v Whitmore , 172 AD2d 600, 568NYS2d 423 [2d Dept l 991 ]: O'Neill v Town of Fisltkill. 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987)). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, supra~ O'Neill v Town ofFislzkil/, supra). As an initial matter. the Court notes that "it is New York 's common-law doctrine of spoliation, rather than CPLR 3126, that [it] must consider, since CPLR 3126 covers refusal to comply with a discovery order or a willful failure to disclose, neither of which is applicable here" (Strong v City of New York, 112 AD3d 15, 21, 973 NYS2d 152 [I st Dept 2013]). It is well established that Supreme Court has broad discretion in determjning the appropriate sanction for spoliation of evidence (see Pegas11s Aviation I, /11c. v Varig Logistica S.A .. 26 NY3d 543. 551 [~015]; Samaroo vBogopa Serv. Corp., 106 AD3d 713, 714, 964 NYS2d 255 [2d Dept 2013]: De Los Santos vPolanco, 21 AD3d 397, 397, 799 NYS2d 776 [2d Dept 2005]). "A party that seeks sanctions for spoliation ofevidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind. and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (SM v Plai11edge Union Free School Dist.. _AD3d_ , 2018 NY Slip Op 04370 [2d Dept2018]; see Neve v City ofNew York, 117 AD3d I 006, I 008, 986 NYS2d 606 (2d Dept 2014]; Mendez v La Guacatala, Inc., 95 AD3d 1084, 944 NYS2d 3 I 3 [2d Dept 2012); Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717,718, 872NYS2d 166 (2d Dept 2009)). This sanction has been applied even if the destruction occurred through negligence rather than wilfulness (see DiDomenico v C & S Aeromatik Supplies, Inc., 252 AD2d 41, 53, 682 NYS2d 452 [2d Dept 1998]) and "'where evidence was negligently destroyed, the party seeking sanctions must establish that the destroyed evidence was relevant to the party" s claim or defense" (SM v Plainedge Union Free School Dist. , supra). Nol withstanding, "where the plaintiffs and the defendants are equally affected by the loss of the items and neither have reaped an unfair advantage in the litigation, it is improper to dismiss a pleading on the basis of spoliation·· (see De Los Santos v Pola11co, supra; Lawson v Aspen Ford, 15 AD3d 628, 629-630, 791 NYS2d 11 9 (2d Dept 1005]; lfrai1110 1 ,, Plloe11ix Indus. Gas, 4 AD3d 332, 334, 772 NYS2d 78 (2d Dept • 2004)). Here. defendants failed to meet their burden to wanant a sanction for spoliation. "The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence. and ·fatally compromised its ability to' prove its claim or defense" (Neve v City ofNew York . 117 AD3d 1006, I 008 [2d Dept 20 I 4] [citation omitted]). There is no indication in the record that when Burke hired the electrical contractor to replace the damaged electrical panel, Burke possessed an obligation to preserve the same, and detendants failed to show that the disposal of the electrical panel fatally compromised their ability to defend against the plaintiffs claims. Burke testified that the fire marshal told him that the it was a lightening strike that caused the damage to the electrical panel, and that the fire may have started overnight. Defendants also submitted the affidavit of their expert, who averred that, based upon his expe1ience, it was impossible that the reconnecting of the broken electrical wire caused the fire. Furthennore. f cLaughlin acknov. Jedged that a full investigation concerning the fire was not warranted, [* 5] Ancient Mariner Cottages v National Grid index No. 13-3104 Page 5 inasmuch ass the fire marshal made a determination that the cause ofthe fire was an unspecified arc at or near the electrical panel. Defendants also failed to conclusively establish that there was no issue of fact to resolve at trial. Generally. the issue of proximate cause is for the fact finder to resolve (see Gray v Amerada Hess Corp., 48 AD3d 747, 853 NYS2d 157 [2d Dept 2008]; Adams v Lemberg Enters., Inc. , 44 AD3d 694, 843 NYS2d 432 [2d Dept 2007 J: see also Derdiarian v Felix Contractor Corp., 51 NY2d 308, 434 NYS2d 166 (1980]), and a court's n::sponsibility in considering a motion for swmnary judgment is issue finding, not issue determination (see Doize v Holiday 11111 Ronkonkoma, 6 AD3d 573, 774 NYS2d 792 [2d Dept 2004]; Roth v Bllrreto. 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001); Ren11ie v Barbarosa Transport, Ltd., 151 AD2d 379. 543 NYS2d 429 [I st Dept 1989]). Here, although the fire marshal testified that the cause of the fire was an unspecified arc. which occurred as a result of damage caused at or near the electrical panel, the insurance adjuster, who observed the electrical panel a few days after the fire, testified that the insurance company determined the tire was caused by arcing at the electrical pole on the outside of the home. Defendants discount the adjuster's testimony, arguing that she was not an electrician or an engineer; however, the court is not in a position to resolve issues of fact or to determine matters of credibility. The conflicting testimony presents an issue of fact to be determined by the trier of fact, and not on this motion. For this reason, defendants' motion for summary judgment is denied. a..ns r ,....... A.J.S.C. FINAL DISPOSITION -=-X- NON-FINAL DISPOSITI ON
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