Allstate Ins. Co. v Knickerbocker Plaza LLC
Annotate this CaseDecided on June 3, 2020
Supreme Court, New York County
Allstate Insurance Company a/s/o Heidi Mendez and Christopher Haley, Plaintiff,
against
Knickerbocker Plaza LLC, R.Y. Management Co., Inc., and Lynn Lonergan, Defendants.
151854/2016
Boylan Code, LLP, Rochester, NY (Scott M. Mooney of counsel), for plaintiff.
Devitt Spellman Barrett, LLP, Smithtown, NY (Nicholas M. Brino of counsel), for defendant Lynn Lonergan
The Law Office of Margaret G. Klein & Associates, New York, NY (Robert P. Colin of counsel), for defendants Knickerbocker Plaza LLC and R.Y. Management Co., Inc.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 55 were read on this motion to DISMISS.
This motion arises out of a property-damage subrogation action stemming from an apartment fire. Defendant Lynn Lonergan moves under CPLR 3212 for summary judgment dismissing the Complaint of plaintiff, Allstate Insurance Company as Subrogee of Heidi Mendez and Christopher Haley (Allstate). Lonergan also moves for summary judgment dismissing all cross claims brought against her by defendants Knickerbocker Plaza LLC ("Knickerbocker") and R.Y. Management Co., Inc. (R.Y.).
BACKGROUND
The fire underlying this subrogation action occurred on March 9, 2013, at 1763 Second Avenue, apartment 12-K, New York, New York (the "subject apartment"). Lynn Lonergan leased the subject apartment from Knickerbocker, the owner of the building in which the subject apartment is located, by Residential Lease dated February 27, 2009 (Lease, NYSCEF Doc. No. 37). R.Y. is the property manager for Knickerbocker.
Allstate provides residential insurance coverage to Christopher Haley and Heidi Mendez, the tenants in apartment 12F and 12J, respectively, in the apartment building. Those apartments were allegedly damaged as a result of the fire.
The Fire Incident Report states, in part:
"Examination showed that fire originated in the subject premises, on the twelfth floor, in apartment 12K, in the living room, approximately twelve feet from the west wall, along the north wall, approximately one foot above floor level, in combustible material (wire insulation), in the area of electrical wiring, in the area of the northeast wall, east wall and contents via open walkthrough and further extended to the hallway walls, floor ceiling and contents via open walkthrough. Fire further extended to the front bedroom walls, floor, ceiling and contents via open door and further extended to the front bathroom walls, floor, ceiling and contents via open door. Fire further extended to the apartment door via open apartment door. The byproducts of incomplete combustion further extended to the person of Lynn Lonergan. . . . Fire was thereto confined and extinguished"(Fire Incident Report, NYSCEF Doc. No. 44).
In the Complaint, Allstate seeks to recover $58,838.80 it paid to Heidi Mendez (first cause of action) and $38,795.90 it paid to Christopher Haley (second cause of action) to repair the fire damage to their apartments as a result of defendants' alleged negligence (Complaint, NYSCEF Doc. No. 1).
Knickerbocker and R.Y. answered, generally denying the allegations in the Complaint, asserting multiple affirmative defenses, and alleging cross claims against Lynn Lonergan for contribution, indemnification, and breach of contract (Answer, NYSCEF Doc. No. 5). Lynn Lonergan's answer includes general denials, affirmative defenses, and cross claims for contribution or indemnification (Answer, NYSCEF Doc. No. 6). Allstate filed a Bill of Particulars, essentially objecting to the disclosure requests of Knickerbocker and R.Y. (Bill of Particulars, NYSCEF Doc. No. 29).
Lynn Lonergan now seeks summary judgment dismissing the Complaint and all cross claims against her.
DISCUSSION
It is well settled that the proponent of a summary judgment motion must make a prima face showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If movant makes out that showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra).
In order to establish a prima facile case of negligence, plaintiffs must demonstrate the breach of a duty, resulting in damages (see Pulka v Edelman, 40 NY2d 781, 782 [1976]). To establish a duty under the circumstances presented, plaintiff must show that defendants created or had notice of a dangerous condition that could have been prevented by the exercise of reasonable care (see Garcia v Delgado Travel Agency, Inc., 4 AD3d 204 [1st Dept 2004]). The evidence must be viewed in a light most favorable to plaintiff (see Torregrossa v Bohack Corp., 81 AD2d 884, 884-885 [2d Dept 1981]). Defendants may be granted summary judgment may only if it can be determined as a matter of law that they were not negligent (see Ugarriza v Schmieder, supra).
In seeking summary judgment, Lynn Lonergan essentially argues that she neither created nor had notice of the conditions that caused the fire in the subject apartment. Allstate's position, based on an expert report submitted by an engineer, is that the fire resulted from tampering with a baseboard heating unit that caused the unit to overheat when materials were later placed on top [*2]of the unit (preventing proper air circulation) (see Report of Larry A. Wharton, P.E., NYSCEF Doc. No. 45). Allstate also argues that the damage from the fire was exacerbated because Lonergan's smoke detector was inoperative, and because Lonergan left her apartment door open when she left during the fire.
Lonergan contends, though, based on her lease, her affidavit and deposition testimony, and deposition testimony from a representative of R.Y., that she was not responsible for the cause of the fire as identified by Allstate. Lonergan asserts that a malfunction in her apartment's heating units was not her responsibility, pursuant to her lease with Knickerbocker. She also contends that she never made any changes to the heating unit discussed by Allstate's expert, or hired anyone to do so—but that Knickerbocker and R.Y. serviced the apartment's heating units prior to the fire. In addition, Lonergan denies placing any materials on the vents to the heating unit, or observing any materials there. Lonergan does not, however, introduce evidence that she properly maintained her apartment's smoke detector (or that she closed her apartment door when evacuating during the fire).
In opposing summary judgment, Knickerbocker and R.Y. raise the same arguments about the smoke detector and the apartment door as Allstate. Knickerbocker and R.Y. also rely on CPLR 3101 disclosures from experts they retained, indicating those experts will testify that the fire's point of origin was not the heating unit identified by Allstate's expert (and that the fire was not caused by a malfunction in the apartment's heating units). The expert disclosures also indicate that Knickerbocker and R.Y.'s experts will testify that the ultimate cause of the fire is undetermined, in part because power cords and the like in the area where the fire began were destroyed in the fire and thus could not be examined or tested after the fact (see generally CPLR 3101 disclosures of Roger C. Iapicco and Joseph L. Caggiano, NYSCEF Doc No. 50).
On review of the submissions, the Court concludes that the motion must be denied. Given the parties' conflicting submissions as to the origin and cause of the fire, the lack of evidence as to the cause of the malfunction of the smoke detector, and the evidence that Lonergan's front door was left open during the fire, Lonergan has failed to show the absence of any material dispute of fact and that she is entitled to judgment as a matter of law.
Accordingly, it is
ORDERED that defendant Lynn Lonergan's motion for summary judgment under CPLR 3212 is denied.
Dated: June 3, 2020
Hon. Gerald Lebovits
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