Tarasenko v Evco Mech. Corp.
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Tarasenko v Evco Mech. Corp. 2018 NY Slip Op 34400(U) December 31, 2018 Supreme Court, Rockland County Docket Number: Index No. 030894/2015 Judge: Sherri L. Eisenpress 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. FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------x ANDREY TARASENKO and PATRICIA TARASENKO, Plaintiff, DECISION AND ORDER (Motions# 2 AND #3) -againstIndex No.: 030894/2015 EVCO MECHANICAL CORP. and MONSEN ENGINEERING COMPANY, Defendants. ------------------------------------------------------------------x Sherri L. Eisenpress, A.J.S.C. · The following papers, numbered 1 to 14, were considered in connection with (i) Defendant EVCO MECHANICAL CORP's (hereinafter "Evco") Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment in its favor, dismissing the action against it and all cross-cla ims (Motion #2); and (ii) Defendant MONSEN ENGINEERING COMPANY INC.'s (hereinafter "Monson") Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment in its favor, dismissing the Complaint and all cross-claims (Motion #3): NUMBERED PAPERS Motion #2 NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS "A- Q" 1- 2 MEMORANDUM OF LAW IN OPPOSITION/AFFIRMATION IN OPPOSITION/ AFFIDAVIT OF VINCENT PICI, P.E,/AFFIDAVIT OF ANDREY TARASENKO/ EXHIBITS "1 - 22" 3-6 AFFIRMATION IN REPLY/EXHIBITS "A-8" 7 Motion #3 [* 1] NOTICE OF MOTION/AFFI RMATION IN SUPPORT/EXHIBITS "A-F" 8-9 MEMORANDUM OF LAW IN OPPOSITION/AFFIRMATION IN OPPOSITION/ AFFIDAVIT OF ANDREY TARASENKO/AFFIDAVIT OF VINCENT PICI, P.E./ EXHIBITS "1-18" 10-13 1 of 8 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 14 AFFIRMATION IN REPLY Upon the foregoing papers, the Court now rules as follows: This action was commenced by Plaintiff seeking monetary damages for personal injuries in the nature of thermal and chemical burns, sustained on February 1, 2013 through February 3, 2014, during the course of his employment as a mechanical technician at Tolstoy Foundation Rehabilitation and Nursing Center {"Tolstoy"). It is alleged that Plaintiff sustained these injuries when he was exposed to hot water from the boiler system's expansion tank when the pressure relief valve blew, discharging hot water and chemicals into the sub-basement, which Plaintiff was charged with draining as well as getting the heat back on in the facility. In 2000, Defendant Evco removed the existing boilers and installed two new boilers, each two million BTUs, as well as the associated piping, pumps, and electrical connections. After the installation of the boilers, Defendant Evco continued to perform preventative service and maintenance on the boilers, for many years. In June 2010, Evco entered into a three year service contract for Tolstoy's boilers which also required Evco to service the boiler's associated parts and components, including the expansion tank, and make sure all work complied with all applicable codes. Defendant Evco asserts that in 2011 that contract was cancelled, however, there is a factual dispute as to whether it nonetheless continued to perform inspections and service the boilers during the years 2011-2013, based upon invoices and testimony. Defendant Monson, who went out of business in 2015, had a preventative maintenance contract with Tolstoy in 2013, although its principal testified that it began doing work at the facility a couple of years before Plaintiff's accident. Plaintiff alleges that Defendants were negligent and careless in the installation/addition of new boilers to the subject premises and negligent in failing to maintain, inspect, repair, and service the boiler and heating system in a safe manner. [* 2] 2 of 8 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 Defendant Evco moves for summary judgment and dismissal of the Complaint and all cross-claim s. Evco argues that it performed its installation work according to the plans/draw ings provided to them by Tolstoy, as prepared by a licensed engineer. It provides a copy of the architectur al drawings but no expert affidavit attesting to the fact that the installation was in accordance with the plans. Defendant Evco argues that it cannot be held liable for the alleged negligent defective installation where it merely followed the plans prepared by the engineer. Additionall y, they argue that the complaint must be dismissed because its installation work occurred 13 years prior to the accident and is therefore too remote in time to ascribe liability. Lastly, Defendant Evco argues that the Complaint must be dismissed because Evco was not negligent, did not have a duty to plaintiff and did not perform its work in a negligent manner. With respect to the issue of duty, Defendant Evco argues that its maintenan ce contract was terminated more than a year prior to Plaintiff's accident; it did not launch a force or instrumen t of harm on the subject premises with respect to their installation of the boilers and it did not displace the owner's duty to maintain the boilers since Tostoy had their own employees who serviced and maintained the boiler system and expansion tank on a daily basis. In opposition to Defendant Evco's motion for summary judgment, Plaintiff submits the expert affidavit of Vincent Pici, a mechanica l engineer who has overseen the constructio n, operation and maintenan ce of hospital boiler systems. Mr. Pici opines that Defendant Evco deviated from the plains by failing to install the additional expansion tank indicated on the drawing and further deviated from accepted standards of engineerin g and plumbing by failing to take measure to upgrade the existing expansion tank or add an additional expansion tank. It is his opinion that by failing to provide additional expansion capacity, and by failing to install an appropriat ely sized pressure relief valve, Evco created a recurring dangerous condition, and launched an instrumen t of harm in that it created an [* 3] 3 of 8 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 ,- over pressurized heating boiler system. Additionally, Mr. Pici opines that by failing to correct the improper means of discharg ing the heated water from the pressure relief valve, of which they were aware, Evco deviated from accepted plumbing and engineering practice, as well as Code and manufacturer's installation guidelines. Plaintiff also contends that all of the plumbing work on the boilers was completely delegated to Evco and Monson because wh ile Tolstoy employees performed inspections, if they found something wrong, the repair work was to be done by those entities. Defendant Monson also moves for summary judgment and argues that as an independent contractor, it is not liable to Plaintiff. It argues that it did not launch a force or instrument of harm because Plaintiff claims that the boiler system existed in a dangerous and defective conditions since the installation of new boilers, and Monsen did not design or install the new boiler system. Monsen claims that Plaintiff did not detrimentally rely on Monsen since the Monsen technician told him that replacement of the tank and valve was Evco's responsibility as the entity that installed the new boilers. Lastly, Monsen claims that it did not "entirely displace" Tolstoy's duty to maintain the premises since Monsen did not have exclusive control over the boiler system or a full-service maintenance and repair contract. In opposition to Monsen's summary judgment motion, Plaintiff notes that Monsen did not produce its preventative maintenance contract with Tolstoy or any other documents related to their relationship with Tolstoy, as its principal testified that all of their documents were "thrown away," in the summer of 2016 and maintenance reports would be in the "garbage, shredded or recycled ." Plaintiff asserts that because the action was commenced on March 2, 2015, and Defendant was served on March 11, 2015, Monsen destroyed all of their records despite actual knowledge that the case was pending and as such, there should be an adverse inference charge. In reply, with respect to the spoliation issue, Monsen argues that it vacated its [* 4] 4 of 8 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 offices in May 2016, and relinquished all of its documents and computer equipment to the bankruptcy trustee and had no knowledge as to the records whereabouts after that. It claims that although Plaintiff originally commenced this action in June 2015, the claims were dismissed because Monsen had filed bankruptcy before the suit was commenced. It was only after Plaintiff sought leave from the bankruptcy court to proceed, was the Complaint later amended and served upon defense counsel. Plaintiff also opposes the summary judgment motion on the ground that Tolstoy detrimentally relied on Monsen to maintain the boilers and its associated systems in a safe manner and to correct installation defects, thus raising triable issues of fact as to whether Monsen displaced Tolstoy's duties to maintain the boilers and do plumbing work. Plaintiff points out that Tolstoy employees did not self perform plumbing work in connection with the boilers, as they did not have a license to do so. Additionally, as part of the maintenance of the boilers which was undertaken by Monsen, it is alleged that Monsen was responsible to correct the over pressurization condition, to install a correctly sized pressure relief valve, and to remove the garden hose and hard pipe the discharge to right above the floor drain, all of which Plaintiff claims Tolstoy relied upon Monsen to do. Legal Discussion The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003). However, once such a showing has been made, the burden shifts to the party [* 5] 5 of 8 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 ·sible form demon stratin g mater ial opposing the motion to produc e eviden tiary proof in admis questi ons of fact requir ing trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 v. New York Univ. Med. Center, N.Y.S.2d 131 (2000 ), citing Alvarez, supra, and Wineg rad or unsub stantia ted allega tions 64 N.Y.2d 851, 508 N.Y.S.2d 923 (1985 ). Mere conclusions a triable issue. Gilber t Frank unsup ported by compe tent eviden ce are insuffi cient to raise (1988 ); Zucke rman v. City of Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 a motion for summ ary judgm ent, New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980 ). "On oving party. '" Vega v. Restani facts must be viewed 'in the light most favora ble to the non-m Const. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13 (2012 ). plaint iff must show In order to establ ish a prima facie case of neglig ence, the was breached. Solom on v. New that the defen dant owed a duty to the plaint iff and that duty ct to a third- party contra ctor, York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392 (1985 ). With respe to a duty, on the part of the the genera l rule is that such contra ct does not give rise to reside nts or visitor s to the contra ctor, to use reasonable care to preven t foreseeable harm N.Y.S.2d 173 (2d Dept. 2007) . prope rty. Roach v. AVR Realty Comp any, 41 A.D.3d 821, 639 (1) where the contra ctor failed to Howev er, there are three excep tions to that genera l rule: , thereb y launch ing a force or use reason able care in the perfor mance of its duties y relies upon the contin ued instru ment of harm; (2) where the plaint iff detrim entall contra ctor displaced the prope rty perfor mance of the contra ctor's duties ; or (3) where the condit ion. Id. With regard to the owner 's duty to mainta in the premis es in a reason ably safe act of neglig ence which results first excep tion, a contra ctor may be liable for an affirm ative New York, 38 A.D.3d 854, 855, in the creatio n of a dange rous condit ion. Losito v. City of 833 N.Y.S.2d 564 (2d Dept. 2007) . , it is the Court' s With regard to Defen dant Evco's summ ary judgm ent motion issues of fact as to wheth er determ ination that same must be denied as there are triable [* 6] 6 of 8 INDEX NO. 030894/2015 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 01/02/2019 ation of the boiler system and Evco launch ed an instru ment of harm as a result of its install mainte nance of the boilers. With wheth er there was detrim ental relianc e with respect to the Pici, Plaint iff has demon strate d a respect to the install ation, throug h the affida vit of Mr. plains by failing to install the triable issue of fact as to wheth er Evco deviat ed from the furthe r deviat ed from accepted additio nal expan sion tank indica ted on the drawin g and measu re to upgrad e the existin g standa rds of engine ering and plumb ing by failing to take expan sion tank or add an additio nal expan sion tank. er the failure to Additi onally , there are triable issues of fact as to wheth to install an appro priate ly sized provid e additio nal expan sion capac ity, and the failure ion, and launch ed an instru ment pressu re relief valve, created a recurr ing dange rous condit system . of harm in that it create d an over pressurized heatin g boiler This Court does not e in time with respect to the find the install ation of the boilers in 2000 to be too remot been contin ued mainte nance accide nt, partic ularly where as here, there appea rs to have perfor med by Evco up to the time of the occurrence. as there are Defen dant Monsen's summ ary judgm ent must also be denied y relied upon the contin ued triable issues of fact as to wheth er Plaint iff detrim entall nance of the boilers which was perfor mance of the contra ctor's duties . As part of the mainte as to wheth er Monsen was under taken by Monsen, there are triable issues of fact install a correc tly sized pressure respon sible to correc t the over pressu rizatio n condit ion, to the discha rge to right above the relief valve, and to remov e the garden hose and hard pipe them to do so, particu larly where, floor drain, and wheth er Tolsto y detrim entall y relied upon perfor m such tasks. · as here, none of its emplo yees had a plumb er's license to charge with respect As to wheth er Plaint iff is entitle d to an advers e inferen ce said determ ination is left to the the destru ction of the contra ct and mainte nance docum ents, reason ably anticip ates litigati on, it trial Judge. The Court notes, howev er, that "once a party [* 7] 7 of 8 FILED: ROCKLAND COUNTY CLERK 01/02/2019 03:29 PM NYSCEF DOC. NO. 134 INDEX NO. 030894/2015 RECEIVED NYSCEF: 01/02/2019 must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents." VOOM HD Holdings. LLC v. Echo Star Satellite LLC, 93 A.d.3d 33, 41, 939 N.Y.S.2d 321 (l5t Dept. 2012). There seems to be little question, notwithstanding its bankruptcy filing, that once Defendant was served with process in March, 2015, that it was on notice of the Plaintiff's claims and the need to retain relevant documentation. It was not until May 2016, more than a year later, that Monsen's computers were allegedly removed by the bankruptcy trustee. Defendant Monsen has offered no explanation why, during that time period, it undertook no actions to preserve the relevant documents. Accordingly, it is hereby ORDERED the Notice of Motion filed by Defendant Evco Mechanical Corp. for summary judgment and dismissal of the Complaint and all cross-claims against it (Motion #2) is DENIED; and it is further ORDERED that the Notice of Motion filed by Defendant Monsen Engineering Company for summary judgment and dismissal of the Complaint and any cross-claims (Motion #3) is DENIED; and it is further ORDERED that the parties are directed to appear in the Trial Readiness Part on WEDNESDAY, JANUARY 30, 2019, at 9:30 a.m. The foregoing constitutes the Decision and Order of this Court on Motions #2 and #3. Dated: New City, New York December 31, 2018 he Supreme Court TO: All Parties via -NYSCEF- [* 8] 8 of 8
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