Saffer v Niagara Mohawk Power Corp.

[*1] Saffer v Niagara Mohawk Power Corp. 2018 NY Slip Op 51296(U) Decided on September 13, 2018 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2018
Supreme Court, Warren County

David and Laura Saffer, Plaintiffs,

against

Niagara Mohawk Power Corporation d/b/a NATIONAL GRID and TIME WARNER CABLE, INC., Defendants.



NGM INSURANCE COMPANY AS SUBROGEE OF DAVID SAFFER AND LAURA SAFFER,Plaintiffs,

against

NIAGARA MOHAWK POWER CORP. d/b/a NATIONAL GRID, TIME WARNER CABLE INC., NATIONAL GRID USA and NATIONAL GRID USA SERVICE COMPANY INC.,Defendants.



63032



Law Offices of Newell & Klingebiel, Glens Falls (David C. Klingebiel of counsel), for plaintiffs in Action No. 1.

Barclay Damon, LLP, Albany (William C. Foster of counsel), for defendant Niagara Mohawk Power Corporation d/b/a National Grid in Action No. 1 and for defendants Niagara Mohawk Power Corp. d/b/a National Grid, National Grid USA and National Grid USA Service Company in Action No. 2.

Wilson Elser Moskowitz Edelman & Dicker, LLP, Albany (Christopher J. Martin of counsel), for defendant Time Warner Cable Inc. in Action Nos. 1 and 2.

Creedon & Gill, P.C., Northport (Peter J. Creedon of counsel), for plaintiff NGM Insurance Company in Action No. 2.
Robert J. Muller, J.

Presently before the Court is a motion in both actions on behalf of defendant Time Warner Cable, Inc. (hereinafter TWC) for summary judgment in pursuit of the imposition of discovery sanctions striking certain pleadings and, or, causes of action. The motion is premised, in part, upon assertions by TWC of a spoliation of evidence by plaintiffs and defendant Niagara Mohawk Power Corporation d/b/a National Grid (hereinafter referred to collectively as National Grid), with the latter having cross claims against TWC.[FN1] TWC also seeks to dismiss an indemnification cross claim pursuant to General Obligations Law § 5-322.1 referencing a certain Pole Attachment Agreement described in National Grid's cross claim for contractual indemnification. National Grid, by cross motion, seeks summary judgment granting contractual indemnification against TWC, again referencing this Pole Attachment Agreement, together with spoliation sanctions against plaintiffs in both actions.

Turning first to a procedural objection to the cross motion interposed on behalf of National Grid, CPLR 3212 (a) provides as follows:

"Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown."

Here, the Court issued an Amended Preliminary Conference Stipulation and Order (hereinafter Amended PCSO) in both actions on December 11, 2017 directing that the notes of issue be filed "on or before March 15th, 2018" and further stating as follows: "Any dispositive motion(s) pursuant to CPLR 3211 or 3212 shall be filed with the Court no later than June 15th, 2018 (must be within ninety [90] days of the date of filing of the [n]ote of [i]ssue)." The notes of issue for both actions were filed on March 29, 2018. National Grid then filed its cross motion on July 26, 2018, well after the deadline set forth in the Amended PCSO — as well as more than 90 days from the date of filing of the note of issue. National Grid has further failed to establish any good cause for this delay, aside from stating that it was "surpris[ed]" to receive the motion for summary judgment interposed on behalf of TWC.

With that said, where a motion for summary judgment is timely and a cross motion for summary judgment is then made after the deadline, the Court may consider the cross motion in the absence of good cause if two conditions are satisfied: (1) the issues raised in the underlying motion and the cross motion are the same; and (2) the cross motion is in fact a "cross motion," as that term is used in CPLR 2215 (see Muqattash v Choice One Pharm. Corp., 162 AD3d 499, 499 [2018]; Rubino v 330 Madison Co., LLC, 150 AD3d 603, 604 [2017]; Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87 [2013]). The Court finds that these two conditions have been [*2]satisfied. The issues concerning contractual indemnification and its interplay with the Pole Attachment Agreement are, for example, specifically raised in TWC's motion and are substantially similar. The cross motion will therefore be considered.

This case arises out of three separate fire events that took place at the residence of plaintiffs David and Laura Saffer (hereinafter plaintiffs), located at 31 Deerfield Lane in the Town of Bolton, Warren County. In November of 1995 plaintiffs completed construction of structures on this property consisting of a home, garage and barn. Plaintiffs then entered into a contract with National Grid whereby electrical service was provided through the use of three utility poles and elevated transmission lines. These lines traversed the majority of plaintiffs' multi-acre property eventually reaching a utility pole in close proximity to plaintiffs' home (hereinafter the "final pole"), at which point the wiring continued underground until it entered plaintiffs' home.

In order to provide cable television services to their home plaintiffs contracted with TWC, and TWC then affixed an elevated television cable to the utility poles of National Grid on plaintiffs' property. These television cables also traversed the majority of plaintiffs' property to the final pole and then continued underground where they entered the plaintiffs' home. It is alleged that National Grid and TWC's relationship — as it pertains to the installation and maintenance of TWC's equipment on National Grid's utility poles — is governed by an agreement of which more will be discussed hereafter.

Eighteen years later, on December 12, 2013, a fire occurred at plaintiffs' home resulting in a total loss of the structure and personal property. Following the December 2013 fire, Warren County's fire investigation team determined that the origin of the fire was in the southwest corner of the basement and was electrical in nature. The investigation team further determined that the fire originated in or around the main service, electrical panel box or generator switch box. No items of physical evidence were retained by the investigation team.

Plaintiffs' home was rebuilt over the course of nearly a year and in September of 2014, when the home was substantially complete, plaintiffs returned to the residence. National Grid and TWC restored their respective services during the reconstruction.

On April 14, 2015, a second fire took place and once again resulted in the loss of the home and personal property. Warren County's fire investigation team determined that the origin of the fire was in the southwest corner of the basement and again appeared to be electrical in nature. Once again, no items of physical evidence were retained by the investigation team.

There was a second reconstruction of plaintiffs' home and a garage that had also been destroyed. This was completed by December of 2015. The reconstruction included the restoration of services by National Grid and TWC.

In the context of this motion for summary judgment and sanctions, TWC asserts that it was never placed on notice of either the first or second fire at any time proximate to the events.

On October 3, 2015, while plaintiffs were residing in a camper/recreational vehicle (RV) located on their property during the second reconstruction, a third incident occurred during which an exterior TWC television cable connected to the RV sustained fire and heat damage. This third event did not result in any substantial damage beyond that sustained by the TWC television cable. On October 5, 2015 representatives of plaintiff NGM Insurance Company (hereinafter NGM) placed TWC on notice of this event. TWC claims this constitutes its first notice of the [*3]prior fires. On November 20, 2015, TWC representatives attended a site inspection, accompanied by representatives for plaintiffs and National Grid.

The factual allegations against TWC in both actions are essentially that National Grid's secondary voltage conductor located between two of the utility poles on plaintiffs' property energized the TWC cable line directly below it.

Action No. 1

Plaintiffs' first cause of action sounds in negligence and is brought against TWC in connection with the December 2013 fire. The second cause of action is brought solely against National Grid, sounds in negligence, and arises out of the same fire. The third cause of action sounds in negligence and is brought against TWC in connection with the April 2015 fire. The fourth cause of action is brought solely against National Grid, sounds in negligence, and also arises out of the April 2015 fire. The remaining fifth and sixth causes of action are aimed at TWC and National Grid and relate to the October 2015 incident, although the damages resulting from this third incident were far less extensive and included a burned sheathing on TWC's exterior cable. Plaintiffs' prayer for relief also seeks punitive damages.

Action No. 2

Each cause of action in this subrogation proceeding references all three events. The first, third, fourth, fifth, seventh and eighth causes of action sound in negligence and are brought against National Grid. The second and sixth causes of action advance a theory of breach of contract against National Grid. The ninth and eleventh causes of action against TWC proceed on a theory of negligence, and the tenth and twelfth causes of action against TWC proceed on a theory of breach of contract.

In January of 2014 NGM — as plaintiffs' subrogee — arranged for cause and origin inspections to be performed at plaintiffs' residence in connection with the December 2013 fire. In May of 2015 NGM arranged a second cause and origin inspection concerning the April 2015 fire. It is clear from testimony that, following the first and second fires, there was an initial "impression" of an electrical cause suspected by NGM representatives. The first fire is described as a "fire scene [with] the look of a fire involving the electrical distribution for the home[.]" By early January of 2014, however, the investigation could not suggest a forensic origin or cause for the first fire. Shortly after the second fire the same representatives from NGM reached the same conclusion. TWC was not informed about either of these two inspections and it was not until November 20, 2015 — some weeks after the third incident — that TWC participated in an inspection. At that time plaintiffs' home was in the final stages of the second post-fire rebuilding process.

TWC supports its summary judgment motion with the affidavit of a qualified expert who attended the November 20, 2015 inspection and characterizes the scene, then, as no longer existing as it did at the time of the December 2013 and April 2015 fires. This expert opines with a reasonable degree of scientific and fire investigative certainty that the scene was heavily spoliated by the loss of much of the relevant materials needed to complete a thorough and accurate reconstruction of the events. His affidavit references a National Grid employee deposition which offers the description of a splice cover on the ground directly underneath a splice in the National Grid secondary line that extended between utility poles denominated Pole 19 and Pole 20, including evidence that at an October service call following the third incident the [*4]employee effected a repair of the National Grid secondary service line by installing a new splice cover on a splice between Poles 19 and 20 which was thereafter secured in place with electrical tape. This employee testified to increasing the clearance space between the National Grid secondary line and the TWC cable directly below the splice location. None of these post-third incident activities were shared during the final inspection, the expert claims, and this compromised the ability of TWC's representatives to reconstruct and sequence the circumstances of this incident at the final inspection.

The expert's affidavit continues:

"[T]he . . . fire-damaged Saffer residence had been torn down and re-built before potentially culpable entities were afforded the opportunity to examine the incident scene. As a consequence, certain burn pattern and fire vector analysis, ignition sequencing and the evaluation of adverse electrical activity indicators were not available to investigators at the time of the November 20, 2015 scene examination."

Equally germane to this discussion, NGM representatives testified that at the time of the January 2014 inspection the fire scene was already "compromised by spoliation when the [Saffer's] contractor cleared out and disposed of the fire debris that had collapsed within the walls of the foundation prior to the joint inspection" and that "the origin and cause of this fire could not be determined."

TWC's expert further states that, shortly after the April 2015 fire when NGM was again unable to determine the origin and cause, it authorized the Saffers to proceed with demolition — a second complete spoliation of the scene.

NGM's opposition to this spoliation controversy is addressed by two equally qualified experts in fields relevant to these inquiries. The submissions of one expert, however, are in the form of an out-of-state affidavit not accompanied by the certificate described in CPLR 2309 (c). This section requires that, even when a notary is the foreign acknowledging officer, there must still be a certificate of conformity to assure that the oath was administered in a manner consistent with either the laws of New York or of the foreign state. In other words, a certificate of conformity is required whenever an oath is acknowledged in writing outside of New York by a non-New York notary, and the document is proffered for use in New York litigation. Rejecting this affidavit, however, would only result in further delay because it can be given nunc pro tunc effect once properly acknowledged (see Nandy v Albany Med. Ctr. Hosp, 155 AD2d 833, 834 [1989]; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2309:3). The Court will therefore accept the affidavit with counsel for NGM directed to submit a properly acknowledged affidavit from this expert within ten (10) days of the date of this Decision and Order.

NGM's experts extensively rebut the assertions of the TWC expert and opine that the December 2013 and April 2015 fires were caused by the exact same conditions that were present in the October 2015 incident. In their cross motion National Grid's experts also extensively rebut the assertions of the TWC expert, although the Court notes some portions of these affidavits are verbatim reiterations of what the other has sworn to. Nevertheless, if the opinion of plaintiffs' and NGM's experts were credited — or that of National Grid's experts — then sanctions of any kind [*5]would not be warranted, because the lost evidence would not have been relevant to TWC's defense of the case. The determination of this issue is one of credibility.

This issue of fact should be placed before the jury, along with the inferences to be drawn therefrom (see Krin v Lenox Hill Hosp., 88 AD3d 597, 597 [2011]; Marcano v Calvary Hosp. Inc., 13 AD3d 109, 110-111 [2004]; Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918, 920 [2004]; see also PJI 1:77).

The jury shall be instructed that, if it credits the opinion of the TWC expert that no conclusion of causation can be reached with reasonable certainty based upon the unavailability of evidence, an adverse inference can be drawn against plaintiffs and NGM and National Grid with respect to its cross claims. Put otherwise, the jury shall be advised that, if it credits the opinion of plaintiffs' and NGM's experts and, or, National Grid's experts - that the available evidence is sufficient - then it would not be permitted to draw an adverse inference against plaintiffs and NGM or National Grid on its cross claims (see Pennachio v Costco Wholesale Corp., 119 AD3d 662, 665 [2014]; Krin v Lenox Hill Hosp., 88 AD3d at 597; Marcano v Calvary Hosp. Inc., 13 AD3d at 110-111; Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d at 920).

Punitive Damages

This Court has previously written that, insofar as punitive damages are concerned, "these damages 'are not to compensate the injured party but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future'" (Saffer v National Mohawk Power Corp., 55 Misc 3d 1213[A], 2017 NY Slip Op 50554[U], *4 [Sup Ct, Warren County 2017], quoting Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]). Such damages are "permitted when the defendant's wrongdoing is not simply intentional but 'evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Servs., Inc., 8 NY3d at 489, quoting Walker v Sheldon, 10 NY2d 401, 405 [1961]; accord Xiaokang Xu v Xiaoling Shirley He, 147 AD3d 1223, 1225 [2017]). Punitive damages are thus available in a tort action where the wrong is intentional or deliberate, has circumstances of aggravation or outrage, has a fraudulent or evil motive or is in such conscious disregard of the rights of another that it is deemed willful and wanton (see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993]; Prosser and Keeton, Torts § 2 at 9-10 [5th ed 1984]).

It is by now well understood that there are four predicate elements that must be present before a court will consider awarding punitive damages. "They are: (1) defendant's conduct must be actionable as an independent tort; (2) the tortious conduct must be of the egregious nature set forth in Walker v Sheldon (supra); (3) the egregious conduct must be directed to plaintiff; and (4) it must be part of a pattern directed at the public generally" (New York Univ. v. Continental Ins. Co., 87 NY2d 308, 316 [1995]).

"'Even where there is gross negligence, punitive damages are awarded only in 'singularly rare cases' such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public'" (Anonymous v Streitferdt, 172 AD2d 440, 441 [1991], quoting Rand & Paseka Mfg. Co. v Holmes Protection, 130 AD2d 429, 431 [1987], lv denied 70 NY2d 615 [1988]; accord Bothmer v Schooler, Weinstein, Minsky & Lester, P.C., 266 AD2d 154, 154 [1999]). In other words, "[t]o impose punitive damages, the law requires 'intentional or deliberate wrongdoing, aggravating or outrageous circumstances, fraudulent or evil motive, or [*6]conscious act in willful and wanton disregard of another's rights'" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13 [2008], quoting Pearlman v Friedman Alpren & Green, 300 AD2d 203, 204 [2002]; see Colton, Hartnick, Yamin & Sheresky v Feinberg, 227 AD2d 233, 234 [1996] ["Feinberg makes no claim that the Colton defendants' alleged inattentiveness to his divorce action was part of a pattern directed at the public generally."]).

The Court finds the allegations in action No.1, with plaintiffs having the benefit of every favorable inference, do not support any claim for punitive damages.

Indemnification

TWC seeks summary judgment dismissing National Grid's cross-claims for contractual and common-law indemnification. The contractual indemnification claim is embedded in the Pole Attachment Agreement and provides as follows:

"Licensee (TWC) shall defend, protect, indemnify, and save harmless Licensor (National Grid) and Joint User from and against any and all loss resulting from injury (including injury to a person resulting in death) or damage to persons or property, including injuries to licensee employees or damage to their property, including injuries to the employees or damage to the property of Licensor and Joint User arising out of resulting from, or in any manner caused by the presence, use or maintenance of said attachments or equipment on said poles, or of removing them therefrom; and such loss shall include all costs, charges, expenses, and attorney's fees reasonably incurred in connection with such injury or damage and, also, any payments made by Licensor and Joint User to its injured employees or to their relatives or representatives in conformity with the provisions of any worker's compensation act or any act creating a liability in the employer to pay compensation for personal injury to any employee by accident in the course of employment whether based on negligence on the part of the employee or not, and, also any payments made by Licensor and Joint User to its injured employees by virtue of any collective bargaining agreement or employee's benefit plan."

TWC argues contractual indemnification against it is void and unenforceable pursuant to General Obligations Law § 5-322.1(1) in that the indemnification provision purports to require TWC to indemnify National Grid for National Grid's own negligence, and does not contain the savings clause "to the fullest extent permitted by law" (see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 786, 795 [1997]; Guzman v 170 W. End Ave. Assoc., 115 AD3d 462, 463-464 [2014]; Williams v City of New York, 74 AD3d 479, 480 [2010]; Dutton v Pankow Bldrs., 296 AD2d 321, 322 [2002], lv denied 99 NY2d 511 [2003]). This contractual indemnification may, nevertheless, still be enforceable depending on the outcome of the case. The parties' submissions raise triable issues of fact as to whether the negligence of National Grid contributed to the fires. Since there may be more than one proximate cause of plaintiffs' damages, granting summary judgment to either TWC or National Grid at this juncture would be premature (see Gutelle v City of New York, 55 NY2d 794, 796 [1981]; Popolizio v County of Schenectady, 62 AD3d 1181, 1183 [2009]; Hill v Town of Reading, 18 AD3d 913, 916 [2005]; Temple v Chenango County, 228 AD2d 938, 940 [1996]; Duffina v County of Essex, 44 Misc 3d [*7]1206[A], 2014 NY Slip Op 51038[U], *3 [Sup Ct, Essex County 2014]).

Therefore, having considered the Affirmation of Christopher J. Martin, Esq. with Exhibits "A" through "MM" attached thereto, dated June 14, 2018; Affidavit of Eugene J. West with Exhibits "A" and "B" attached thereto, sworn to June 15, 2018, Affidavit of Jeffrey A. Page with Exhibit "A" attached thereto, sworn to June 11, 2018; supporting Memorandum of Law, dated June 14, 2018; opposing Affirmation of Peter J. Creedon, Esq. with Exhibits "1" through "22" attached thereto,[FN2] dated July 31, 2018; opposing Affirmation of David C. Klingebiel, Esq., with Exhibits "A" through "C" attached thereto, dated August 1, 2018 and submitted on behalf of plaintiffs in Action No. 1; opposing Memorandum of Law, dated August 1, 2018 and submitted on behalf of plaintiffs in Action No. 1; Affidavit of William C. Foster, Esq. with Exhibit "A" attached thereto, sworn to July 24, 2018, opposing the summary judgment motion of TWC; Affidavit of William Patrick, Jr. with Exhibits "A" through "C" attached thereto, sworn to July 24, 2018; Affidavit of George Ello with Exhibits "A" through "D" attached thereto, sworn to July 23, 2018; Affidavit of George Braynack, sworn to July 24, 2018; Affirmation of Christopher J. Martin, Esq. with Exhibits "A" and "B" attached thereto, dated August 3, 2018 and submitted in opposition to the National Grid cross motion; Affirmation of Christopher J. Martin, Esq., dated August 8, 2018, submitted in reply to plaintiffs' opposition in Action No. 1; Affirmation of Christopher J. Martin, Esq., dated August 8, 2018, submitted in reply to NGM's opposition in Action No. 2, and oral argument having been held on September 4, 2018 with David C. Klingebiel, Esq. appearing on behalf of plaintiffs, William C. Foster, Esq. appearing on behalf of National Grid, Christopher J. Martin, Esq. appearing on behalf of TWC and Peter J. Creedon, Esq. appearing on behalf of NGM, it is hereby

ORDERED that counsel for NGM shall submit within ten (10) days of the date of this Decision and Order an affidavit from Craig Casper which is properly acknowledged under CPLR 2309 (c); and it is further

ORDERED that National Grid and TWC's motions to dismiss plaintiffs' claims for punitive damages in Action No.1 are granted in their entirety; and it is further

ORDERED that the motions of National Grid and TWC for summary judgment and sanctions are denied; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated June 14, 2018 and the Notice of Cross Motion dated July 24, 2018. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry in accordance with CPLR 5513.

Dated: September 13, 2018

Lake George, New York

____________________________________

ROBERT J. MULLER, J.S.C.

ENTER: Footnotes

Footnote 1:This Court previously dismissed a portion of Action No.1 finding that emotional damages in a property damage action are not a recognized cause of action in this State. See Saffer v. Niagara Mohawk, 55 Misc 3d 1213(A) [2017]

Footnote 2:These Exhibits include the Affidavits of Stuart Morrison, sworn to on July 24, 2018, and Craig Casper, sworn to in the State of Ohio on July 26, 2018.