Bright Horizons Children's Ctrs., LLC v Arthur C. Klem, Inc.

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Bright Horizons Children's Ctrs., LLC v Arthur C. Klem, Inc. 2023 NY Slip Op 33446(U) September 5, 2023 Supreme Court, Kings County Docket Number: Index No. 508130/2014 Judge: Ingrid Joseph 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: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 lAS Part Part 83 of ofthe Supreme Court Court of of the Supreme At an IAS State of of New held in and for the York held New York . the State County of of Kings Kings at 360 360 Adams Adams St~t, Strt;:et, County .-(fie.day Brooklyn, New York, on the the::>5 ( New York, Brooklyn, of of¥-2023. 2023. ..£ft PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. PRESENT: OF STATE SUPREME COURT THE STATE THE OF COURT SUPREME KINGS NEW COUNTY OF KINGS YORK COUNTY NEW YORK ----------------------------------------------------------------------)( ------------------------------------------------X ---------------------BRIGHT HORIZONS HORIZONS CHILDREN'S CHILDREN'S CENTERS, CENTERS, LLC, LLC, BRIGHT Index No: 508130/2014 508130/2014 Index Plaintiff(s)s) Plaintiff( ORDER ORDER -against-againstARTHUR C. KLEM, KLEM, INC., INC., JOY JOY CONSTRUCTION CONSTRUCTION ARTHUR MECHANICAL CORPORATION, POLAR BEAR MECHANICAL BEAR POLAR CORPORATION, PC, INC., ARCHITECTS PC, MANDL ARCHITECTS MELTZER MANDL INC., MELTZER NAF PAK PAK PLUMBING PLUMBING & HEATING HEATING CORP., CORP., NAF WATERWORKS, , INC., INC., DAGHER DAGHER JTP WATERWORKS AVENUELLC, ENGINEERING, KENT AVENUELLC, PLLC, 175 KENT ENGINEERING, PLLC, and LLC 224 WYTHE WYTHE A AVENUE, LLC VENUE, EQUITY RESIDENTIAL RESIDENTIAL MANAGEMENT MANAGEMENT, , L.L.C., L.L.C., EQUITY Defendant( s) Defendant(s) ----------------------------------------------------------------------)( ------------------------------ -----------------X ---------------------- this matter, matter, Defendant Defendant Equity Equity Residential Residential Management, Management, LLC LLC ("Equity") ("Equity") moves moves In this judgment dismissing (Motion Seq. 17) pursuant CPLR § S 3212 3212 for summary summary judgment dismissing Bright Bright Horizons Horizons pursuant to CPLR (Motion Children's Centers, Centers, LLC LLC ("Plaintiffs) ("Plaintiffs) complaint complaint and all cross-claims cross-claims against against Equity, Equity, or in the Children's alternative, summary summary judgment cross-claim for common common law law indemnification indemnification against against judgment on its cross-claim alternative, Defendant Arthur Arthur C. Klem, Klem, Inc. ("Klem"). ("Klem"). Plaintiff Plaintiff and Klem Klem have have opposed opposed Equity's Equity's motion. motion. Defendant judgment dismissing Klem also moves (Motion Seq. 19) pursuant CPLR § S 3212 3212 for summary summary judgment pursuant to CPLR moves (Motion Klem Plaintiff's complaint and all cross-claims against Klem. Plaintiff Plaintiff and Equity have opposed Klem Klem's's Plaintiff's motion. This action action arises arises out of of a property property damage damage incident incident that that occurred occurred on on May May 8, 2013, 2013, at 175 This Kent Avenue, Avenue, Brooklyn Brooklyn New York ("Subject ("Subject Premises"), Premises"), wherein wherein heavy heavy rainfall rainfall overwhelmed overwhelmed New York Kent .f~ lower level level of of the building's building's waste waste lines, lines, dislodged dislodged a rubber rubber cap on one one of of the lines lines and the lower caused a flood. Plaintiff Plaintiff initiated initiated this this action action on September September 5, 2014, 2014, against against Defen~ant Defenqant Klem, Klem, Joy caused Construction Corporation Corporation ("Joy"), ("Joy"), Polar Polar Bear Bear Mechanical Mechanical Inc. ("Polar ("Polar Bear"), Bear"), and Meltzer Meltzer Construction Mandl Architects Architects ("Meltzer"). ("Meltzer"). On or about about July 9, 2015, 2015, the parties stipulated to allow allow Plaintiff Plaintiff parties stipulated Mandi 11 [* 1] 1 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 ("Naf') and Corp. ("Naf') Heating Corp. Plumbing & Heating to amend Naf Park Plumbing name NafPark Complaint to name and Complaint Summons and amend its Summons have appeared Naf nor JTP have Neither Nafnor JTP Waterworks ("JTP") as defendants. defendants. Neither appeared or answered answered the Waterworks Inc. ("JTP") 506858/2016 Index # 506858/2016 under Index action under Complaint. separate action Plaintiff filed a separate 28, 2016, Plaintiff April 28,2016, Complaint. On April ("175 LLC ("175 Avenue LLC Kent Avenue ("Dagher"), 175 Kent against PLLC ("Dagher"), Engineering, PLLC Dagher Engineering, Defendants Dagher against Defendants Whyte nor 224 Whyte Kent nor Neither 175 Kent Equity. Neither Kent"), ("224 Whyte"), Whyte"), and Equity. LLC ("224 Avenue LLC Whyte Avenue Kent"), 224 Whyte action on this action into this consolidated into were consolidated matters were The matters action. The have appeared in the action. answered or appeared have answered solely as to Discontinuance solely of Discontinuance Stipulation of filed a Stipulation March 15,2017. Plaintiff filed 2020, Plaintiff July, 29, 2020, On July, 2017. On March 15, Bear. Polar Polar Bear. tenant. Horizons as a tenant. Bright Horizons Plaintiff Bright with Plaintiff premises with Prior subject premises owned the subject Joy owned 2011, Joy Prior to 2011, entered into a Equity entered 23, 2012, Equity March 23,2012, and on March Thereafter, management from Joy and over management took over Equity took Thereafter, Equity that Equity claims Plaintiff. Equity with Plaintiff. premises, with lease agreement, ("The ("The Agreement"), subject premises, claims that Agreement"), for the subject lease agreement, insurer property insurer party property first party brought by first action brought this damage action property damage subrogation property matter is a subrogation this matter of its name of the name ("Travelers") in the Travelers America ("Travelers") of America Company of Insurance Company Casualty Insurance Property Casualty Travelers Property policy for the loss of under its insurance paid under insured, the Plaintiff, amounts that insurance policy of were fully paid that were Plaintiff, for amounts insured, system. infiltration system. water infiltration Plaintiffs Plaintiffs water against it action against subrogation action Equity bringing a subrogation barred from bringing Plaintiff is barred that Plaintiff argues that Equity argues pursuant of subrogation subrogation clause clause in Section Section 9-J subsection subsection 1 of of the lease lease agreement agreement waiver of pursuant to the waiver other caused by fire or other damages caused of subrogation which subrogation for damages rights of waives all rights Plaintiff waives that Plaintiff provides that which provides required to was required Plaintiff was that Plaintiff states that section states same section loss covered the same Additionally, the insurance. Additionally, covered by insurance. coverage for the daycare, insurance coverage procure commercial general general liability liability insurance daycare, "including "including maintain commercial procure and maintain the Pursuant to the liability ... damage liability but not limited ... water ... " Pursuant water damage liability, ... damage liability, limited to fire damage with Policy with insurance Policy procured an insurance Plaintiff procured that Plaintiff requirements maintains that Equity maintains Agreement, Equity the Agreement, of the requirements of page 25 of paragraph 4 on page that Section Travelers. Equity states that self-insured and that Section 9-.1(6) 9-J(6) paragraph of that it is self-insured Equity states Travelers. insurance on and will carry insurance obligated to carry the Agreement states that will not be obligated landlord, it will the landlord, that as the Agreement states states further states Equity further alterations." Equity not work, or alterations." alteration work, property, alteration "tenant's property, responsible for "tenant's not be responsible waiver of there is no waiver thus there that since it is self-insured, self-insured, an insurance insurance policy does not exist, exist, thus of any policy does that since waived that it waived indicate that does indicate policy does insurance policy subrogation clause, excess insurance Equity's excess however Equity's clause, however subrogation with Plaintiff with of Plaintiff behalf of on behalf subrogation. submitted on claims submitted that the claims argument that of its argument support of subrogation. In support testimony February 3, 2016, respect incident have Equity cites cites to the February 2016, deposition deposition testimony paid, Equity been paid, have been respect to the incident that all who stated Travelers, who of ("Bongiovani"), a general stated that adjuster for Travelers, general adjuster Bongiovani ("Bongiovani"), Raymond Bongiovani of Raymond that paid and that been paid have been incident have claims subject incident the subject with the connection with Plaintiff in connection submitted by Plaintiff claims submitted 2 [* 2] 2 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 was Plaintiff was that Plaintiff testified that Bongiovani testified Plaintiff Furthermore, Bongiovani reimbursed for the loss. 1I Furthermore, was reimbursed Plaintiff was incident. the incident. indemnified Travelers for the indemnified from Travelers 22 negligent, was not negligent, because it was judgment because Equity argues that entitled to summary summary judgment that it is entitled Equity also argues breach any incident, or breach the incident, cause the did not have prior notice nor did it cause condition, nor dangerous condition, of the dangerous notice of have prior handle retained to handle \Vas retained Klem was that Klem claims that contractual agreement agreement with Equity claims Plaintiff. Equity with the Plaintiff. contractual rubber of the rubber aware of was aware and was installed and Klem installed that Klem plumbing and that Premises and Subject Premises the Subject services at the plumbing services superseding was a superseding the issue rectify the their failure existed on the date of of the incident, failure to rectify issue was incident, and their the date that existed cap that Plaintiffs and Plaintiffs Equity and of Equity negligence of intervening alleged negligence between the alleged link between interrupting any link intervening act interrupting of Thomas testimonies of alleged damages. damages. In support, support, Equity cites the deposition deposition testimonies Thomas Campbell Campbell Equity cites alleged Pearson Richard Pearson ("Tucker"), Richard Tucker ("Tucker"), ("Campbell"), Michael Tucker ("Hannon"), Michael Hannon ("Hannon"), David Hannon ("Campbell"), David Plati ("Plati"). ("Pearson"), and Chris Chris Plati ("Plati"). ("Pearson"), the site was the and was Plaintiff and the Plaintiff Campbell Manager for the Property Manager Regional Property served as a Regional Campbell served Premises. In his disposition superintendent during during the original of the Subject Subject Premises. disposition dated dated construction of original construction superintendent location on the date different location working at a different initially working March was initially that he was testified that Campbell testified 2016, Campbell March 1, 2016, Premises, Subject Premises, arriving at the Subject After arriving of the incident informed of the leak.33 After of the was informed that he was incident and that of waste of the waste out of dripping out water dripping discovered water Campbell and discovered rooms and inspected all the rooms that he inspected testified that Campbell testified taken after the site taken photographs of line in the mechanical Campbell was shown shown photographs of the after the room.44 Campbell mechanical room. when that when testified that Campbell testified waste line.55 Campbell the waste incident, cap on the rubber cap temporary rubber identified a temporary and identified incident, and permanent cap on the line not a permanent was not there was he inspected inspected the waste line on on the date of the incident, incident, there date of waste line states Campbell states water. 66 Campbell ground in the water. was on the ground and photo was the photo shown in the cap shown temporary cap the temporary that the and that believe the cap not believe that in his opinion, that opinion, he did not room and that but left it in the room the cap but picked up the that he picked of the leak cause of the cause that the Plati that told by Plati was that he was told testified that Campbell also testified compliant. 77 Campbell code compliant. was code Hannon, an employee 2018 deposition, was cap.88 At Hannon's 18,2018 deposition, Hannon, employee of of December 18, Hannon's December rubber cap. was the rubber before the months before two months than two Premises less than Klem, Subject Premises been to the Subject had been Klem had that Klem testified that Klem, testified Klem's incident, Klem's prior to the incident, that prior testified that incident to perform Hannon testified building.99 Hannon the building. work on the perform work incident (Bongiovani Dep. 46 lines 7-12). lines 7-12). Dep. 46 (Bongiovani (Bongiovani Dep. 9-22). lines 9-22). Dep. 32 lines (Bongiovani 33 (Campbell 3-13). lines 3-13). Dep. 13 lines (Campbell Dep. 44 (Campbell (Campbell Dep. 20 lines lines 10-20). I 0-20). 5 (Campbell 4-8). lines 4-8). (Campbell Dep. 33 lines 2-13; 10-12; 36 lines lines 10-12; lines 2-13; 35 lines Dep. 6 2-6). 6 (Campbell lines 2-6). Dep. 34 lines (Campbell Dep. lines 10-11). 77 (Campbell (Campbell Dep. 13-19; 36 lines 10-11). Dep. 34 lines 13-19; 8 8 (Campbell (Campbell Dep. 11-14). Dep. 40 lines 11-14). 2-9). lines 2-9). 99 (Hannon 20-25; 16 lines lines 20-25; I 5 lines (Hannon Dep. 15 1 I 22 3 [* 3] 3 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 stated Hannon stated sewer line.lo10 Hannon main sewer the main well as the work traps as well the traps cleaning the and cleaning opening up and included opening work included performed Klem, performed employed by Klem, longer employed that "Steve", who who is no longer named "Steve", Klem named from Klem employee from that an employee traps the traps present on the were present caps were rubber caps that the rubber the incident and that the incident prior to the traps prior the traps of the cleanout of the cleanout there are other that there testified that Hannon also testified prior Steve performed clean out. I11I Hannon other options options performed the clean when Steve prior to when plugs, plugs, grip plugs, lead plugs, fit-alls, lead plugs, fit-aIls, brass plugs, than caps to seal the traps including brass traps including 'jimmy" caps rubber "jimmy" than rubber brass that the brass trap, that secure a trap, used to secure and can be used cap can rubber cap while a rubber stated while Hannon stated caps. 12 Hannon brass caps.12 and brass blow caps will blow rubber caps the rubber that the risk that may be a risk cap there may because there caps because rubber caps over the rubber preferred over cap is preferred 13 Hannon that testified that Hannon testified installed.13 how it is installed. off depending on how system depending the system backup in the there is a backup if there off if caps. 14 brass caps.14 install brass and install drain and main drain the main Klem clean the incident to clean the incident aner the back after called back Klem was called Defendant Joy appeared Tucker, of Field Operations of of Defendant appeared for aa Field Operations President of Vice President Tucker, the Vice storm used on storm materials to be used deposition on February 12,2019. about the specified specified.materials testified about He testified 2019. He February 12, deposition caps brass caps and brass rubber and both rubber built, both being built, was being lines. Premises was Subject Premises the Subject when the that when testified that Tucker testified lines. Tucker that aa but also that off but sign off inspection sign plumbing inspection should order to get the city plumbing installed in order been installed have been should have Principal former Principal Pearson, a former Similarly, Pearson, rubber IS Similarly, inspection. 15 passed inspection. have passed not have would not ultimately would cap ultimately rubber cap May to May prior to that prior testified that 2019, and testified May 14, of 14,2019, deposition on May appeared for a deposition Dagher, appeared Defendant Dagher, of Defendant Dagher that Dagher Pearson states premises.1616 Pearson 2013, engineering services services at the subject subject premises. states that provided engineering Dagher provided 2013, Dagher the for the design for the design including the system including drainage system designed of plumbing sewer drainage the sewer plans and the plumbing plans designed a set of Dagher that Dagher testified that Pearson testified designs, Pearson cleanout spec designs, the spec Based on the building.l?17 Based the building. plug for the cleanout plug that states that Pearson states pipes.1818 Pearson the pipes. plugs for the bronze plugs recommended with bronze iron with cast iron of a cast installation of the installation recommended the New with New consistent with was consistent Dagher specificationn was standardized specificatio the standardized because the plug because bronze plug chose a bronze Dagher chose types other types what other unaware of was unaware that he was testified that York's of what Pearson testified Additionally, Pearson code. 19 Additionally, building code. York's building installed been installed have been would have plugs would proper plugs of plugs acceptable to use but that the proper use but been acceptable have been would have plugs would of 3-7). (Hannon lines 3-7). Dep. 48 lines (Hannon Dep. lines 10-13). 2-25; 50 lines (Hannon Dep. lines 23-25; 10-13). lines 2.25; 49 lines 23-25; 49 Dep. 48 lines (Hannon 12 12 (Hannon 15-23). lines 15-23). Dep. 50 lines (Hannon Dep. 2-14). lines 2-14). 13 (Hannon (Hannon Dep. 51 lines 521ines 18-25; 52 lines 18-25; Dep. 51 2-4). lines 2-4). 24-25; 57 lines 14 (Hannon lines 24-25; Dep. 54 line 2-7; 56 lines lines 2-7; line 25; 55 lines (Hannon Dep. 15 (TuckerDep. 15 (Tucker Dep. 37 lines lines 20-24; 20-24; 38 lines lines 10-16). 10-16). 16 16 (Pearson 6-12). lines 6-12). Dep. 15 lines (Pearson Dep. 17 (Pearson (Pearson Dep. 24 lines 8-16). lines 8-16). Dep. 18 (Pearson 2-25). lines 2-25). Dep. 27 lines 15-25; 28 lines lines 15-25; (Pearson Dep. 19 (Pearson (Pearson Dep. 28 lines 21-25). lines 21-25). Dep. 10 11 4 [* 4] 4 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 was the full that it was and that building, and by the plumbing the building, of the construction of during the construction contractor during plumbing contractor 20 them.2o install them. parts and install purchase the parts responsibility of the plumbing contractor to purchase plumbing contractor responsibility of deposition appeared for a deposition Equity, appeared Services for Equity, Plati, Construction Services of Construction President of Vice President Plati, the Vice original was the original party was which party of which on February unaware of was unaware that he was testified that wherein he testified 2020, wherein February 6, 2020, of heard of not heard had not that he had and that building and the building of the phase of plumbing during the construction phase the construction contractor during plumbing contractor 21 Plati out clean out the clean over the caps over the caps notice the not notice did not lTP states that incident he did prior to the incident that prior Plati states before.21 JTP before. 22 Plati Plati building.22 the building. into the infiltrations into traps, back-ups infiltrations water back-ups prior water any prior of any aware of Equity aware was Equity nor was traps, nor "John" Themeli, Property Service testified Service Manager Manager "lohn" Themeli, and and Equity's Equity's Equity's Property told by Equity's was told that he was testified that 23 incident.23 and caused loose and came loose Regional caused the incident. rubber cap came that a rubber Esau Ali that Manager Esau Facility Manager Regional Facility prior to that prior aware that was aware testimony, he was Additionally, Hannon's testimony, reading Hannon's based on reading that based testified that Plati testified Additionally, Plati that eventually basement that the incident, clean out eventually got located in the basement trap located out the trap Klem to clean hired Klem Equity hired incident, Equity backed up. 24 backed Up.24 Pietropaolo Engineer Steven Professional Engineer of Professional Equity Steven Pietropaolo report of expert report the expert cites to the Equity also cites retained to determine was retained ("Pietropaolo") of ofLOI Engineering, P.C., P.C., who was determine the cause cause and Foresic Engineering, LOI Foresic ("Pietropaolo") pit and the ejector pit cleaning of preformed cleaning origins of the ejector Klem preformed that Klem noted that Pietropaolo noted flood. Pietropaolo of the flood. origins of industry with industry compliant with not compliant was not caps was rubber caps of rubber use of sewer Klem' s use that Klem' and that incident and the incident prior to the sewer prior raised included raised brass and been brass have been should have used should standards. Pietropaolo Pietropaolo stated stated that and included plugs used that the plugs standards. water the water that the opined that Pietropaolo opined opinion, Pietropaolo square or countersunk square heads. expert opinion, heads. In his expert countersunk square square basement from the the basement into the backing up into water backing of water damage result of was a result Premises was Subject Premises damage to the Subject affixed by Klem. plug affixed cleanout plug improper cleanout an improper building's storm and and sewer sewer lines ofan Klem. result of lines as the result building's storm plug was cleanout plug screw-in cleanout compliant screw-in code compliant Pietropaolo also noted incident, a code the incident, after the that after noted that Pietropaolo also installed. installed. judgment on its alternative argument, Equity claims claims that entitled to summary summary judgment that it is entitled argument, Equity In its alternative plumber, Klem, as a plumber, because Klem, cross-claim indemnification because law indemnification common law pursuant to common Klem pursuant against Klem cross-claim against that claims that Equity claims rubber cap. Equity of a rubber should instead of used instead was to be used brass cap was that a brass realized that have realized should have premises been to the subject had been pipes and had which pipes Klem aware of of what caps were subject premises going on to which were going what caps was aware Klem was 49 Jines (Pearson Dep. lines 12-25; 12-25; 31 lines lines 21-24 21-24).). 2-25; 32 line 4; 49 lines 2-25; Dep. 30 lines (Pearson (Plati Dep. 5-2 I). lines 15-21). Dep. 18 lines) (Plati 22 (Plati 2-8). 22 lines 2-8). 24-25; 28 lines lines 24-25; Dep. 27 lines (Plati Dep. 23 (Plati 23 2-12). lines 2-12). 5-12; 38 lines lines 5-12; Dep. 33 lines (Plati Dep. 24 (Plati 24 2-6). lines 2-6). 25; 42 lines line 25; Dep. 41 line (Plati Dep. 20 20 21 5 [* 5] 5 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 establishing of establishing burden of In Equity has not met its burden that Equity argues that Klem argues opposition, Klem partial opposition, In partial that damage that whether any damage fact as to whether of fact issue of entitlement summary judgment there is an issue because there judgmen t because entitlement to summary as Equity, as of Equity, omissions of and/or omissions actions and/or the actions may Plaintiff was due to the sustained by the Plaintiff been sustained have been may have claim should indemnification claim law indemnification common law the should Equity's common that Equity's argues that also argues Klem also manager. Klem property manager. the property and inspection and included inspection manager included property manager be responsibilities as the property Equity's responsibilities because Equity's dismissed because be dismissed was it was Klem states Klem. Klem incident solely control solely to Klem. states it attribute the incident cannot attribute premises and it cannot of the premises control of into aa not enter parties did not that the parties only "as needed enter into Equity and that basis" by Equity needed basis" hired on an "as only hired did role did its role that the scope Klem states comprehensive agreement.t. Furthermore, states that scope of of its Furthermore, Klem maintenance agreemen comprehensive maintenance was what was been aware have been Equity should not should have aware of of what that Equity maintenance and that and maintenance inspection and include inspection not include that testimony, that Hannon's testimony, Klem also cites installed cites Hannon's building. Klem of the building. phase of construction phase the construction during the installed during aware.2525 is aware. codes as far as he is local or state rubber state codes barred by local used and not barred commonl y used caps are commonly rubber caps was solely Klem was that Klem nor that negligent nor Therefore, failed to show show that solely that it was not negligent Equity has failed Therefore, Equity responsible. responsible. on waiver of purported waiver that the purported Plaintiff of subrogati subrogation grounds that motion on the grounds opposes the motion Plaintiff also opposes to breached its obligatio Equity breached because Equity clause claim against against Equity obligationn to Equity because Plaintiff' s claim bar Plaintiff not bar does not clause does that the lease Plaintiff states procure covering the loss at issue. Plaintiff states that lease agreemen agreementt insurance covering primary insurance procure any primary but only losses, but potential casualty their own required obtain insurance cover their own potential casualty losses, only insurance to cover parties to obtain both parties required both policy rance" or an excess Plaintiff states that "self-insurance" excess insurance insurance policy that "self-insu Plaintiff states Furthermore, Plaintiff Plaintiff did. Furthermore, waiver clause. does not constitute insurance insurancess and thus cannot be subject subject to the waiver clause. Plaintiff Plaintiff also also thus cannot not constitute does Equity upon Equity imposes a duty upon Agreement, imposes argues that Section 9-1(6) 9-J(6) paragraph of the Agreement, page 24 of paragraph 3 on page that Section argues less not less liability in an amount to force an insurance limits of of liability amount of of not minimum limits with minimum policy with insurance policy in full force keep in to keep l ) ~ 1 on waiver of than $5,000,000,0, and and that such policy Equity include include a waiver of subrogati subrogation purchased by Equity policy purchased that any such than $5,000,00 had aa Equity had that Equity Plaintiff argues in favor favor of of Tenant, Tenant, neither of which argues that Additionally, Plaintiff which was done. Additionally, neither of in had Equity had that Equity defects, and non-delegable duty to keep Subject Premises and that Premises free from defects, keep the Subject non-delegable duty to Klem to required Klem that required building' s sewer constructive of prior issues regarding sewer system system that regarding the building's prior issues notice of ive notice construct Hannon. and Hannon. Plati and testimonies of clean it a few weeks incident based of Plati based on the testimonies prior to the incident weeks prior clean it because it judgmen t because In support support of of its motion, argues that entitled to summary summary judgment that it is entitled Klem argues motion, Klem In not did not since it did damages since Plaintiff s damages could not caused any condition condition that that gave rise to the Plaintiffs have caused not have could the in the evidence in the evidence that the claims that Klem claims perform caused or contribut contributed incident. Klem ed to the incident. that caused work that perform work caused and caused system and drain system the drain overwhelmed the record establishess that that overwhelmed rainstorm that heavy rainstorm was the heavy that it was record establishe 25 (Hannon 7-12). lines 7-12). Dep. 76 lines (Hannon Dep. 6 [* 6] 6 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 installed the cap in that it installed record establishes the flood. Klem states that establishes that nothing in the record that nothing Klem also states of notice of had no notice therefore it had and therefore incident and question, nor was Klem asked to replace replace it prior prior to the incident Klem asked nor was question, lines plumbing lines who installed that it was JTP who dangerous condition. condition. In fact, Klem claims that installed the plumbing Klem claims any dangerous 26 Moreover, that it is argues that Klem argues Moreover, Klem construction.26 question during initial construction. building's initial the building's during the caps in question and caps third non-contracting third Plaintiff as a non-contracting duty to Plaintiff entitled to summary summary judgment owe a duty because it did not owe judgment because entitled Klem contract. Klem of contract. breach of negligence or breach of negligence theories of party and therefore under theories liable under cannot be liable therefore cannot party action this action damages in this awarding damages that awarding claims that since Plaintiff insurer, that paid in full by its insurer, was paid Plaintiff was that since claims failed to also failed has also Plaintiff has that Plaintiff and that would emichrnent and unjust emichment recovery and unjust double recovery amount to double would amount properly subrogation action. action. plead a subrogation properly plead should be motion should Klem's motion that Klem's claim that Plaintiff claim In opposition and Plaintiff Equity and motion, Equity Klem's motion, opposition to Klem's Equity the alternative, was filed. In the Issue was of Issue denied as untimely alternative, Equity Note of after the Note made after was made since it was untimely since denied Klem whether Klem exist as to whether of fact exist issues of claims because issues denied because must be denied motion must Klem's motion that Klem's claims that failed dangerous condition notice of had notice trap, had knowingly cap onto onto the trap, of the dangerous condition and failed rubber cap placed the rubber knowingly placed wherein he testimony, wherein Campbell's testimony, cites Campbell's to warn Equity cites condition. Equity dangerous condition. the dangerous about the Equity about warn Equity cause that the cause told that was told also was but also water but the water floating in the stated that found the cap floating rubber cap the rubber only found not only that he not stated wherein testimony wherein Tucker's testimony cites Tucker's Equity cites of cap. 27 Equity rubber cap.27 the rubber of the installation of the installation was the incident was of the incident the city get the order to get been installed have been he stated stated that should have installed in order caps should brass caps rubber and brass both rubber that both 28 Tucker later have would not have ultimately would cap ultimately rubber cap that a rubber plumbing testified that later testified sign off. 28Tucker inspection sign plumbing inspection 29 Similarly, Equity that the wherein he states testimony wherein passed inspection. 29Similarly, Equity cites states that Pearson's testimony cites Pearson's passed inspection. because plug" because bronze plug" with bronze iron with of "cast designs "cast iron installation of called for the installation system called drainage system designs for the drainage Moreover, code.3o30 Moreover, building code. York's building New York's the standardized standardized specification specification was consistent with with New \Vas consistent subject the subject damages to the water damages that the water found that Equity opinion found expert opinion Peitropaolo's expert that Peitropaolo's states that Equity states combination building's combination the building's basement from the premises of water the basement backing up into the water backing result of premises was a result ferrule Klem to the ferrule affixed by Klem plug affixed cleanout plug storm improper cleanout of an improper result of the result sewer line as the and sewer storm and submits the Equity submits of its opposition, fitting on the building's sewer house opposition, Equity support of trap. In support house trap. building's sewer fitting period from the period during the accident and during invoices prior to the accident that prior demonstrate that Klem to demonstrate invoices from Klem premises at least December 14,2011 2013, Klem Klem rendered services at the premises least plumbing services rendered plumbing May 8, 2013, 2011 to May December 14, 2-5). (Tucker Dep. lines 3-8; 35 lines lines 2-5). 24-25; 36 lines lines 24-25; Dep. 29 lines (Tucker lines 11-14). I 0-11; 40 lines (Campbell 13-19; 36 lines 11-14). lines 10-11; lines 13-19; Dep. 34 lines (Campbell Dep. 28 (Tucker 28 (Tucker Dep. 10-16). lines 10-16). Dep. 38 lines 29 29 (Tucker (Tucker Dep. 20-24). lines 20-24). Dep. 37 lines 30 (Pearson 30 21-25). lines 21-25). Dep. 28 lines (Pearson Dep. 26 26 27 7 [* 7] 7 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 cap at the subject brass cap proper brass used a proper Klem used that Klem fifty times subject indicate that invoices indicate the invoices of the none of that none times and that replaced rubber cap that any rubber Equity that fitting nor demonstrate that cap should should be replaced advised Equity Klem advised that Klem nor do they demonstrate fitting with a brass brass cap. prior negligent in its prior was negligent Klem was that Klem argues that In opposition Plaintiff argues motion, Plaintiff Klem's motion, opposition to Klem's occurrence. before the occurrence. weeks before just weeks incident just clean out services of of the same same trap involved involved in the incident out services clean report to expert report evidence or an expert admissible evidence Plaintiff provide any admissible failed to provide has failed Klem has that Klem claims that Plaintiff claims debris of debris removal of clean-out and removal their clean-out after their rebut secured the cap improperly improperly after Klem secured that Klem claims that rebut its claims though Klem that even 2013. Plaintiff argues argues that even though Klem was a nonAdditionally, Plaintiff I 3. Additionally, March 20 in the trap in March care in reasonable care exercise reasonable failure to exercise because its failure contracting Plaintiff because duty to Plaintiff owe a duty party, it did owe contracting party, created or either created that either harm that instrument of the performance of harm launched a force or instrument duties launched of its duties performance of exasperated an already already existing existing dangerous dangerous condition condition that caused caused Plaintiffs Plaintiffs injuries. injuries. exasperated make a must make motion must judgment motion summary judgment It is well "the proponent of a summary proponent of that "the established that well established tendering sufficient law, tendering matter of prima showing of of entitlement entitlement to judgment of law, sufficient evidence evidence judgment as a matter prima facie showing NY2d 1062, to demonstrate demonstrate the absence absence of of any material issues of of fact" fact" (Ayotte (Ayotte v. v. Gervasio, Gervasio, 81 81 NY2d material issues Buitriago, v. Buitriago, Zapata v. 320, 324 [1986]; NY2d 320,324 [1993], citing [1986]; Zapata Hospital, 68 NY2d Prospect Hospital, v. Prospect Alvarez v. citing Alvarez 1063 [1993], burden made, the burden been made, Once a prima facie demonstration demonstration has been prima facie 2013]). Once Dept 2013]). AD3d 977 [2d Dept 107 AD3d proof, in admissible produce evidentiary shifts to the party motion to produce evidentiary proof, admissible form, opposing the motion party opposing shifts action. of the action. trial of require a trial which require of fact which issues of sufficient material issues of material existence of the existence establish the sufficient to establish NY2d 557 [1980]). (Zuckerman v. City of o/New [1980]). New York, 49 NY2d v. City (Zuckerman Summary judgment drastic remedy remedy which should not be granted granted where where there there is any which should judgment is a drastic Summary Nassau v. Nassau arguable (Elzer even arguable issue is even doubt (Elzer v. where the issue issue or where triable issue of a triable existence of the existence doubt as to the Dept. 1984]; AD2d 649, Parker, 99 AD2d v. Parker, County, 111 III A.D.2d 649, [2d Dept. Steven v. Dept. 1985]; Steven 212, [2d Dept. A.D.2d 212, County, deciding a summary When deciding st Dept. Galeta v. New Inc., 95 AD2d [1st Dept. 1983]). 1983]). When summary AD2d 325, [l New York News, lnc., ta v. Gale non-moving the non-moving favorable to the most favorable light most judgment construe facts in the light must construe Court must the Court motion, the judgment motion, AD2d 610 party (Marine Midland Transmission Co., 168 AD2d Automatic Transmission Artie's Automatic Dino & Artie's v. Dino NA. v. Bank NA. Midland Bank party (Marine ]). Dept. 1991 AD2d 600 [2d Dept. [2d Dept. 1990]; 1990]; Rebecchi v. Whitemore, Whitemore, 172 AD2d 1991]). Rebecchi v. insured, is of its insured, losses of paid losses having paid Subrogation is the insurer, having which an insurer, principle by which the principle Subrogation responsible party legally third party placed of its insured insured so that legally responsible recover from the third may recover that it may position of placed in the position commercial Parties to a commercial [1995]). Parties for the loss (Winkelmann (Winkelmann v Excelsior N.Y.2d 577 [1995]). Excelsior Ins. Co., 85 N.Y.2d insurance and through insurance parties through third parties transaction liability to third of liability risk of the risk allocate the transaction are free to allocate Apple Companies, Red Apple Inc. v Red deployment of of a waiver of subrogation subrogation clause clause (Gap, Inc. Companies, Inc., 282 waiver of deployment 8 [* 8] 8 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 AD.2d 199 [1st Dept. Dept. 2001]; 2001]; see Board Board of of Ed., Ed. , Union Free Free School School Dist. No. NO.3,3, Town of of A.D.2d Brookhaven N.Y.2d 653 [1979]). [1979]). A waiver waiver of of subrogation subrogation clause clause Associates, Inc., 46 N.Y.2d Brookhaven v Vaiden Associates, Knowledge, 299 Perfect Knowledge, implies that that the parties parties are insured insured (Liberty (Liberty Mut. Ins. Co. v. v. Perfect 299 A.D.2d AD.2d 524 implies [2d Dept. Dept. 2002]; 2002]; Duane AD.3d 229 229 [1st Dept. Dept. 2006]). 2006]). If If the Holding Corp., 30 A.D.3d Reva Holding Reade v Reva Duane Reade brought by the which are brought waive subrogation need to waive parties insured, there subrogation claims, claims, which there is no need not insured, parties are not R_eal Morris Goldman Motorist Ins. Co. v Morris American Motorist parties' insurers (Duane (Duane Reade citing American Goldman Real Reade at 233; citing parties' insurers Estate Corp., 277 F.Supp.2d F.Supp.2d 304 [S.D.N.Y [S.D.N.Y 2003]). 2003]). Moreover, Moreover, a waiver waiver of of subrogation subrogation clause clause Estate cannot be enforced enforced beyond beyond the the scope scope of of the specific specific context context in which which it appears appears (Kaf-Kaf (Kaf-Kaf Inc. v cannot Rodless 654,660 [19971]). (19971]). A reference reference to "other "other insurance" insurance" in e.g., NY2d 654,660 Inc., 90 NY2d Decorations, Inc., Rodless Decorations, "excess provision" of an insurance insurance contract contract has been found to contemplate contemplate a separate separate second second been found provision" of an "excess premium kind of insurance insurance policy issued by another another insurance insurance company company in exchange exchange for a premium policy issued kind of 22694 N.Y. Slip Op. 22694 2002 N.Y. Liberty Mut., 2002 New York, Inc. v Liberty charged (Consolidated (Consolidated Edison of New Edison Co. of charged NY Cnty. Cnty. 2002]; 2002]; see also Wake County County Hospital Hospital System, System, Inc. v National National Casualty Casualty Co., [Sup. Ct. NY F.Supp. 768 [E.D.N.C.1992]). [E.D.N.C.1992]). Self-insurance Self-insurance however however is not not insurance insurance at all but but rather rather a 804 F.Supp. judgments pay any representation by the the self-insured self-insured entity entity that that it has has the the financial financial means means to pay any judgments representation New York, Edison Co. of N.Y.2d 680 [1976]; against it (Guercio (Guercio v Hertz [1976]; Consolidated Consolidated Edison of New Hertz Corp., 40 N.Y.2d against Inc. at 404). 404). waives subrogation that waives policy that While excess insurance insurance policy subrogation and covers covers losses losses in Equity has an excess While Equity excess of of $25,000,000.00, $25,000,000.00, Plaintiffs Plaintiffs claimed claimed damages damages are for $696,492.78, $696,492.78, which which is below below the excess threshold. Here, Here, Equity Equity has conceded conceded that that while while Plaintiff Plaintiff obtained obtained insurance, insurance, Equity Equity itself itself was threshold. self-insured. However, However, Section Section 9-J(6) 9-J(6) paragraph paragraph 3 page page 24 of of the the Lease Lease Agreement Agreement states states that that self-insured. policy of "Landlord shall obtain obtain and and keep keep in full force and effect effect during during the term term of of this this Lease Lease a policy of "Landlord minimum with minimum basis with Commercial General General Public Public Liability Liability Insurance, Insurance, written occurrence basis written on an occurrence Commercial both "landlord Additionally, both than $5,000,000.00." limits of ofliability amount of of not $5,000,000.00." Additionally, "landlord and not less than liability in an amount limits tenant shall shall each each procure procure and and appropriate appropriate clause clause in, or endorsement endorsement on, any all-risk all-risk or fire or tenant extended coverage coverage insurance insurance covering covering the Premises Premises ... ... " Equity's Equity's contention contention that that pursuant pursuant to extended Section 9-J(6) 9-J(6) paragraph paragraph 4 on page page 25 of of the the Agreement Agreement that that the the landlord landlord is not not obligated obligated to Section carry insurance, insurance, directly directly contradicts contradicts its argument argument that that it is entitled entitled to waiver waiver of of the subrogation subrogation carry which waive subrogation clause because if the the parties insured, there there is no need subrogation claims, claims, which need to waive not insured, parties are not because if clause provision of breached the provision are brought insurers. Consequently, Consequently, Equity of the lease Equity has breached parties' insurers. brought by the parties' 9 [* 9] 9 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 waiver with entitled to enforcement enforcement of of the waiver thus is not entitled insurance and thus of insurance procurement of respect to the procurement with respect provIsiOns. provisions. waiver of judgment as to waiver motion for summary Accordingly, of Equity's summary judgment of the Equity's motion branch of that branch Accordingly, that denied. agreement is denied. subrogation lease agreement the lease clause in the subrogation clause premises in a maintain its premises law to maintain An owner of land duty under common law under the common land has a duty owner of injury to of injury likelihood of the likelihood including the reasonably ~ircumstances, including of all the circumstances, view of condition in view safe condition reasonably safe risk (Kellman the risk burden of others, seriousness of of the injury, of avoiding avoiding the (Kellman v 45 Tiemann Tiemann injury, and the burden others, the seriousness out-of-possession An out-of-possession 233,241 [1976]). Assoc., [1995]; Basso [1976]). An NY2d 233,241 Miller, 40 NY2d Basso v Miller, 87NY2d 871 [1995]; Assoc., 87NY2d retained has retained landlord has unless the landlord premises unless landlord injuries that occur on its premises that occur liable for injuries not liable landlord is not course contract or a course assumed by contract control statute or assumed by statute imposed by duty imposed has a duty and has premises and the premises over the control over Dev f!ous. Dev. Plaza Hous. Haven Plaza of conduct (Casson (Casson v McConnell, [2017]; see Guzman Guzman v Haven AD3d [2017]; McConnell.. 148 AD3d of conduct AD3d 10 Analytical Group, Inc., 89 AD3d Fund [1987]; Alnashmi Certified Analytical Alnashmi v Certified NY2d 599 [1987]; Fund Co., 69 NY2d 889 [1970)). NY2d 887, [2011]; Ritto Goldberg, 27 NY2d 887,889 [1970]). Ritto v Goldberg, Monroe, ofMonroe, (Gronski v County of fact (Gronski and of The County of law and of law question of both a question control is both of control issue of The issue landowner and one When a landowner NY2d 887 [1970]). 374, 379 [2011]; [2011]; Ritto Goldberg, 27 NY2d [1970]). When Ritto v Goldberg, NY3d 374,379 18 NY3d property to a the property regard to the with regard in actual obligations with and obligations rights and their rights committed their have committed possession have actual possession parties' course but to the parties' writing, courts look look not only of the agreement, agreement, but course of of conduct, conduct, terms of only to the terms writing, courts determine premises - to determine access the premises ability to access including landowner's ability the landowner's limited to, the not limited but not including but the landowner's that the property such over the property whether landowner in fact surrendered control control over such that landowner's fact surrendered the landowner whether the Rafferty, Butler v Rafferty, rel. Butler Butler ex reI. citing Butler duty 3 80-81; citing (Gronski at 380-81; law (Gronski of law matter of extinguished as a matter duty is extinguished property presumptive control [NY 20003]). 20003]). Thus, Thus, a landowner landowner remains control over over its property remains in presumptive NE2d 265 [NY 00 NE2d l100 was control was that control found that until it is found and ownership until of ownership obligations of attendant obligations the attendant subject to the and subject presentation of relinquished, either as a matter of law finder of of fact after after presentation of all the the finder law or by the matter of relinquished, either 382). evidence (Gronski at 382). evidence (Gronski relinquished control that it fully relinquished Here, Equity has not evidence establishing establishing that control proffered any evidence not proffered Here, Equity premises in a maintain its premises duty to maintain non-delegable duty of Subject Premises of its non-delegable releasing it of thus releasing Premises thus of the Subject responsibility over that it has responsibility concedes that reasonably safe condition. condition. In Equity's over the Equity concedes Reply, Equity Equity's Reply, reasonably safe solely to Klem. incident solely the incident of the maintenance responsibility of shift responsibility attempts to shift but attempts building but the building of the maintenance of unambiguously assigned that unambiguously However, did not agreement that assigned the maintenance agreement have a maintenance not have parties did However, the parties Premises the Subject conditions on the unsafe conditions responsibility Subject Premises remedy unsafe practices and remedy implement safe practices responsibility to implement that the York City to one party. Section 102.3 of of the 2008 2008 New City Plumbing Plumbing Code Code states states that New York Moreover, Section party. Moreover, 10 [* 10] 10 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 that the Plumbing Code City Plumbing York City New York to one party. Section 102.3 of Code states states that 2008 New of the 2008 Moreover, Section party. Moreover, plumbing of plumbing maintenance of owner or the owner's responsible for maintenance shall be responsible agent shall designated agent owner's designated owner responsible for "landlord shall that "landlord states that systems. Similarly, Similarly, section section 6(D) of the lease shall be responsible lease states 6(D) of systems. obtaining any and for obtaining Work, and Landlord's Work, preparing plans and specifications for Landlord's and specifications necessary plans preparing all necessary make, at ·'Tenant shall 8(A) states Section 8(A) necessary other permits approvals." Section states "Tenant shall make, and approvals." permits and building and other necessary building fixtures in good and fixtures Premises and keep the Premises its own required to keep replacements required and replacements repairs and expense, all repairs own expense, hereunder, responsible hereunder, Landlord is responsible which Landlord working order and and condition, condition, except those for which except those working order maintain necessary to maintain repairs necessary such repairs including ... including ... such repairs, including structural repairs, limitation: (i) structural without limitation: including without make or states "Tenant 8(B)/(D) states the Premises condition ... ... " Section "Tenant shall shall not not make Section 8(B)/(D) weather-tight condition Premises in a weather-tight improvements, installations, improvements, alterations, installations, perform performance of, any alterations, making or performance permit the making perform or permit written prior written Landlord's prior without Landlord's Premises without additions or other other physical about the Premises or about changes in or physical changes additions commercially use commercially shall use that the "landlord part that consent." Section 10 I 0 of "landlord shall states in part Agreement, states the Agreement, of the consent." Section with other consistent with building consistent the building reasonably efforts to keep, other similar similar firstmaintain the manage and maintain keep, manage reasonably efforts located, and in full building is located, the building which the class market in which rental market the rental properties in the office properties mixed-use office class mixed-use Section 20 of regulations.'' Finally, and regulations." accordance with laws, codes, Finally, Section of ordinances and codes, ordinances applicable laws, with the applicable accordance Premises. the Subject upon the re-entry upon of re-entry right of the Agreement, Subject Premises. possesses the right landlord possesses the landlord that the states that Agreement, states rights and relinquished all rights that it relinquished establishing that burden of Consequently, Equity of establishing satisfied its burden has not satisfied Equity has Consequently, whether issue as to whether the issue and the of law, and matter oflaw, control party as a matter other party Klem or any other Premises to Klem the Premises of the control of that it facility such that the facility over the control over Equity, through conduct, exercised exercised sufficient sufficient control of its conduct, course of the course through the Equity, of finder of determined by the finder should be determined owed defects should remedy any defects and remedy prevent and duty to prevent Plaintiff a duty owed Plaintiff fact. denied. judgment is denied. summary judgment Accordingly, motion for summary Equity'ss motion of Equity' branch of that branch Accordingly, that notice of had notice issue to be addressed addressed is whether Equity had of the dangerous dangerous condition condition whether Equity next issue The next party in owner, or a party property owner, case, a property liability case, that premises liability damages. In a premises Plaintiffs' damages. caused Plaintiffs' that caused burden initial burden has the initial judgment has summary judgment moves for summary possession control of of real property, who moves property, who possession or control nor had condition nor defective condition alleged defective of created the alleged neither created that it neither showing that facie showing prima facie making a prima of making Natural Museum of American Museum actual or constructive constructive notice of its existence (see Gordon of Natural Gordon v American existence (see notice of actual A.D.3d 452 [2d Dept. History, [1996]; Kyte Hudson Wendico, Inc., 131 A.D.3d Mid Hudson Kyte v Mid N.Y.2d 256 [1996]; History, 67 N.Y.2d 2015]; Pampalone Dept. 2014]). 2014]). A defendant defendant has A.D.3d 988 [2d Dept. FBE Van Dam, LLC, 123 A.D.3d Pampa/one v FBE existed for a sufficient has existed and has apparent, and constructive sufficient visible and apparent, when it is visible defect when of a defect notice of constructive notice and corrected length of of time accident such could have discovered and corrected (Gordon (Gordon been discovered have been that it could such that before the accident time before length 11 11 [* 11] 11 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 consequences foreseeable consequences normal and foreseeable 862 [2d [2d Dept. liable for all normal remains liable party remains While a party 2014]). While Dept. 2014]). 862 that relieve that to relieve will serve cause and will ng cause of superceding serve to constitute a supercedi intervening act will constitute acts, an intervening his acts, of his party's that party's attenuates that or so attenuates nature or party such an extraordinary extraordinary nature of such the act is of when the liability when of liability party of reasonably not be reasonably may not injury may the injury conduct responsibility for the that responsibility injury that ultimate injury conduct from the ultimate Felix Derdiarian vv Felix Dept. 1996]; 469 [2d Dept. attributed (Huber v Malone, 1996]; Derdiarian A.D.2d 469 229 A.D.2d A1alone, 229 party (Huber that party to that attributed to third-party prevent aa third-party imposed on Contr. Corp., 51 51 N.Y,2d on a defendan defendant t to prevent No duty is imposed [ 1980]). No 308 [1980]). N. Y,2d 308 tr. Corp., Con was plaintiff s injuries caused the plaintiffs which caused from causing another unless injuries was intervening act which unless the intervening harm to another causing harm from negligence the defendan aa normal consequence of the situation situation created created by the defendant'st's negligence nce of foreseeable conseque normal or foreseeable 470). (Huber at 470). (Huber ive actual or construct had actual Equity had whether Equity Here, issues of of material exist as to whether constructive material fact exist genuine issues Here, genuine that it Equity states While Equity that caused notice of a defective defective or dangerouss condition condition that caused the incident. incident. While states that it or dangerou notice of 'not does 'not that alone Klem, that replaced by Klem, was of the rubber alone does used or replaced being used caps being rubber caps informed of never informed was never Premises. Subject Premises. the Subject ns of regular inspectio absolve Equity duty as owner owner to perform inspections of the perform regular from its duty Equity from absolve Subject the Subject the system backups of prior backups While aware of of any prior of the system at the not aware was not that he was testified that Plati testified While Plati included performe d included work performed the work that the Premises, from Klem states that Klem states invoice from 2013 invoice March 25, 2013 Premises, a March normal restored normal flushed and "releasingg stoppage stoppage causing causing drains drains to back-up school.. ....flushed and ... ... restored back-up in school.. "releasin several traps several the traps hired to clean was hired Klem was drainage."" Moreover, clean the when Klem testified when Hannon also testified Moreover, Hannon drainage. unaware was unaware that he was weeks already installed installed and and that were already caps were rubber caps that the rubber incident, that before the incident, weeks before notice had notice Equity had whether Equity issue of who installed them. Thus, Plaintiff of fact as to whether raised an issue Plaintiff has raised them.3131 Thus, who installed of the defective defective or dangerou dangerouss condition condition. . of denied. judgmen t is denied. summary judgment Accordingly, of Equity's claim for summary Equity's claim branch of that branch Accordingly, that been has been who has one who permits one The of commoncommon-law, indemnification permits implied, indemnification law, or implied, principle of The principle to paid to damages it paid wrongdo er the damages from the wrongdoer compelledd to the wrong of another another to recover recover from wrong of pay for the to pay compelle to order to In order 505, 507). In AD3d 505,507). the (Curreri v Heritage Heritage Prop. Inv. Trust, Inc., 48 AD3d party (Curreri injured party the injured not was not it was that it only that not only prove not must prove party must establish a claim claim for commoncommon-law indemnification, a party law indemnification, establish accident, contributed to the accident, negligence contributed actual negligence negligent, indemnit or's actual proposed indemnitor's the proposed that the but also that negligent, but supervise, direct, supervise, authority to direct, the authority had the or in in the absence of of any negligence, indemnitor had the indemnitor that the negligence, that the absence or 1078AD3d 1075, LLC, 134 AD3d Atlantic Ct., LLC, and control control the work giving rise 1075,1078(Mohan v Atlantic injury (Mohan the injury rise to the work giving and Dept (2nd Dept AD3d 1117, 1118-111 1079 [2nd [2nd Dept 1118-11199 [2nd LLC, 85 AD3d Cammack Hotel, LLC, Hart v Commack 2015]; Hart Dept 2015]; 1079 conditional vicarious, conditional and vicarious, statutory and 2011]). purely statutory liability is purely alleged liability defendan t's alleged Where a defendant's 2011]). Where 31 (Hannon Dep. 50 lines lines 10-16). 10-16). (Hannon Dep. 12 [* 12] 12 of 15 INDEX NO. 508130/2014 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 RECEIVED NYSCEF: 10/04/2023 indemnification is common-law indemnification of common-law basis of summary favor on the basis defendant's favor that defendant's judgment in that summary judgment indemnification is sought whom indemnification party from whom premature absent proof, of law, that sought that the party matter of proot: as a matter premature absent giving rise to the work giving the work control the was supervise, and control direct, supervise, authority to direct, negligent or had authority was negligent Dept AD3d 1090, 1097-1098 plaintiff's 1097-1098 [2nd Dept Inc., 165 AD3d Realty, Inc., Sandaro Realty, (McDonnell v Sandaro injury (McDonnell plaintiff's injury 2017]). Dept 2017]). AD3d 994,999 Assn., 147 AD3d 2018]; Shaughnessy 994, 999 [2nd [2nd Dept Hutington Hosp. Assn., Shaughnessy v Hutington that it demonstrating that burden by demonstrating prima facie burden Here, satisfy its prima failed to satisfy Equity has failed Here, Equity inspection and regarding inspection Klem regarding relinquished Premises to Klem Subject Premises of the Subject control of and control rights and relinquished all rights prima facie Equity could that Equity maintenance of the building. arguendo that could satisfy satisfy its prima Assuming, arguendo building. Assuming, maintenance of Equity whether Equity of fact as to whether issues of triable issues burden, raised triable have raised Klem have Plaintiff and Klem opposition, Plaintiff burden, in opposition, make alia, make inter alia, premises, to inter leased premises, as the property enter the leased right to enter reserving its right owner, by reserving property owner, liable for the hold it liable imposed by statute duty imposed repairs, system, had a duty statute to hold plumbing system, maintain the plumbing repairs, and maintain condition. dangerous condition. subsequently-arising dangerous property of a subsequently-arising result of caused as a result damage caused property damage denied. judgment is denied. summary judgment Accordingly, motion for summary Equity's motion of Equity's branch of that branch Accordingly, that Meltzr's cross-claims, Dagher and Meltzr's Defendants' Dagher With dismiss Defendants' cross-claims, motion to dismiss Equity's motion regard to Equity's With regard injuries sustained, the injuries plaintiff for the liable to plaintiff since sustained, not liable Equity is not that Equity finding that been a finding not been has not there has since there v. Stone v. (see Stone defeated (see not defeated contribution are not the and contribution indemnification and cross-claims for indemnification defendants cross-claims the defendants A.D.2d 556 v. Yosi Trucking, Rodriguez v. Williams, 64 N.Y.2d 639, 485 N.Y.S.2d [1984]; Rodriguez Trucking, 151 151 AD.2d N.Y.S.2d 42 [1984]; N.Y.2d 639,485 Williams, Dept. 1989]). [2d Dept. denied. judgment is denied. summary judgment Accordingly, motion for summary Equity's motion of Equity's branch of that branch Accordingly, that failure to state summary judgment state a cause cause of of action, action, the premised on failure judgment premised motion for summary On a motion determine order to determine pleadings" in order court addition to the pleadings" material in addition evidentiary material consider evidentiary must consider court must A.D.3d Center, Inc., 198 AD.3d whether (Wedgewood Care Care Center, action (Wedgewood of action cause of actually has a cause plaintiff actually whether the plaintiff parties' Where the parties' 2020]). Where Dept. 2020]). A.D.3d 889,[2d 889,[2d Dept. Knopf, 186 A.D.3d v. Knopf, Seidler v. 2021]; Seidler 124 [2d Dept. 2021]; of rights of establish the rights provisions establish action, "its agreement "its provisions contract action, of contract breach of court in a breach the court before the agreement is before complaint" (Wedgewood of the complaint" the parties (Wedgewood Care Care Center, allegations of conclusory allegations over conclusory prevail over and prevail parties and 447 [1983]). N. Y.2d 447 Inc. at 132; 805 [1983]). The interpretation interpretation Assoc., 58 N.Y.2d Realty Assoc., MW Realty v. MW Third Ave. Co. v. 805 Third v. Park Corp. v. Bryant Park Ark Bryant court (Id.; the court of (ld.; Ark law for the of law question of contract is a question unambiguous contract of an unambiguous 2001]). Dept. 2001]). Bryant Corp., 285 AD.2d [1st Dept. A.D.2d 143 [1st Restoration Corp., Park Restoration Bryant Park existence the existence allege (1) the must allege To plead cause of of action action for breach plaintiff must contract, a plaintiff of contract, breach of plead a cause of the breach of defendant's breach contract, (3) defendant's of pursuant to the contract, performance pursuant plaintiff's performance contract, (2) plaintiff's of a contract, Seneca LLC v Seneca breach (34-06 that breach contractual (34-06 73, 73, LLC resulting from that damages resulting and (4) damages obligations; and contractual obligations; 13 [* 13] 13 of 15 INDEX NO. 508130/2014 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 RECEIVED NYSCEF: 10/04/2023 Seneca LLC v Seneca breach (34-06 that breach contractual (34-06 73, 73, LLC resulting from that damages resulting obligations; and (4) damages contractual obligations; plead a cause Insurance Company, J9 .19 NY3d [2022]). In general, general, in order order to plead cause of of action action for NY3d 44 [2022]). Insurance Company, claim which the claim upon which contract upon the contract of the provisions of breach allege the provisions must allege complaint must the complaint contract, the of contract, breach of (Atkinson v Mobile A.D.2d 720 [2d Dept. Dept. 1994]). 1994]). Mobile Oil Corp., 205 A.D.2d based (Atkinson is based hired on rather was hired but rather Plaintiff but with the Plaintiff Here, contract with not contract Klem did not that Klem undisputed that Here, it is undisputed "as needed needed basis" Equity. Plaintiff Plaintiff has not not alleged alleged an actual actual contract contract exists exists with with Klem Klem nor basis" by Equity. an "as that one existed. has it produced existed. testified that produced one or testified judgment is granted Accordingly, that that branch branch ofKlem's ofKlem's claim claim for summary summary judgment granted to the extent extent Accordingly, only. Klem only. against Klem dismissed against action is dismissed of action that cause of contract cause of contract breach of Plaintiff's breach that Plaintiff's breach of finding of of negligence negligence must must be based of a duty, duty, wherein wherein a threshold threshold based on the breach A finding party injured party care to the injured owed a duty question duty of of care tortfeasor owed alleged tortfeasor whether the alleged cases is whether tort cases question in tort N.Y.S.2d 120 [2002]). (Espinal v. v. Melville Snow Contractors, Contractors, Inc., 98 N.Y.2d 746 N.Y.S.2d [2002]). The N.Y.2d 136, 138, 746 Melville Snow (Espinal tort give rise to tort not give generally not will generally general standing alone, alone, will obligation, standing contractual obligation, that a contractual rule is that general rule party's liability in favor favor of of a third third party (ld.). There There are only only three three limited limited situations situations where where a party's party (Id.). liability thirdnoncontracting thirdtoward noncontracting contractual duty of of care care toward give rise to a duty deemed to give may be deemed obligation may contractual obligation potentially liable parties, render such such contracting contracting party liable in tort tort to the the injured injured third-party third-party party potentially parties, so as to render Brooks Costume Eaves Brooks N.Y. 160 [1928]; (ld. at 140; HR. [1928]; Eaves Costume Rensselear Water Co., 247 N.Y. Moch Co. v Rensselear HR. Moch (Id. Management Palka v Servicemaster Co., Inc. v Y.B.H YB.H Realty [1990]; Palka Servicemaster Management N.Y.2d 220 [1990]; Realty Corp., 76 N.Y.2d while engaged promisor, while where the promisor, Services 579 [1994]). [1994]). The situation is where engaged The first situation N.Y.2d 579 Services Corp., 83 N.Y.2d affirmatively in discharging discharging a contractual contractual obligation, obligation, creates creates an unreasonable unreasonable risk risk of of harm harm to affirmatively harm (Espinal others, or increases increases that described as launching instrument of of harm (Espinal at launching a force or instrument risk, described that risk, others, The second second situation situation arises arises where where a plaintiff suffered an injury injury by reason reason of of the plaintiff has suffered 140). The performance of plaintiff's defendant's continued continued performance of its contractual contractual reliance on the defendant's reasonable reliance plaintiff's reasonable obligations (Id.). (ld.). The The third third arises arises when when the the contractor contractor has entered entered into into a contract contract that that constitutes constitutes obligations that completely "comprehensive and exclusive" exclusive" property agreement that completely displaces displaces the maintenance agreement property maintenance a "comprehensive owner's duty duty to maintain maintain the premises premises in a safe safe condition condition (Id.). (ld.). owner's proffered Klem has proffered that Klem Here, Court finds finds that deemed timely timely and that motion is deemed Klem' s motion that Klem' Here, the Court good cause cause for its late motion motion and no showing showing of of prejudice prejudice to the the other other parties. parties.3232 Additionally, Additionally, good Counsel for Klem Klem believed believed their their motion motion to be timely timely pursuant pursuant to the CPLR CPLR which which allows allows for the filing filing of of Counsel County Kings the to opposed as oflssue Note dispositive motions motions within days of of the the filing filing of of the Note ofIssue opposed the Kings County Supreme Supreme within 120 days dispositive Note than 60 days made later Court Uniform Civil Term Term Rules cannot be made later than days after after filing filing a Note motions cannot that motions provides that which provides Rules which Uniform Civil Court CPLR. the CPLR. follow the informed to follow was informed states he was of Issue. counsel for Klem Klem called called Part clarification, he states Part 83 for clarification, When counsel Issue. When of 32 32 14 [* 14] 14 of 15 FILED: KINGS COUNTY CLERK 10/04/2023 10:22 AM NYSCEF DOC. NO. 432 INDEX NO. 508130/2014 RECEIVED NYSCEF: 10/04/2023 that Plaintiff cause of the Court Court finds subrogation cause of action action and that Plaintiff is is pled a subrogation properly pled Plaintiff has properly that Plaintiff finds that Insurance Travelers Insurance the properly named party CPLR § S 1004 as evidence evidence by the Travelers pursuant to CPLR party pursuant properly named Klem's Addressing Klem's 2015. Addressing April 3, 2015. dated April Policy Particulars dated of Particulars Bill of Plaintiffs Bill and Plaintiffs submitted and Policy submitted establishing burden establishing prima facie burden motion, satisfy its prima failed to satisfy Klem has failed that Klem finds that Court finds motion, the Court triable issues raised triable have raised Equity have entitlement to summary summary judgment. Since, Plaintiff and Equity issues of of fact as as Plaintiff and judgment. Since, entitlement ed the system that overwhelm rainstorm that to whether incident was caused by heavy overwhelmed system as Klem Klem heavy rainstorm was caused the incident whether the to the of the system argues or whether Klem's maintenancee of system caused caused or contributed contributed to the prior maintenanc em's prior whether Kl argues Plaintiff. owed to Plaintiff. duty owed breached a duty Klem breached Plaintiffs establishingg that that Klem therefore establishin damages therefore Plaintiffs damages hereby Accordingly, Accordingly, it is hereby pursuant to CPLR ORDERED, , that of Equity's (Motion Seq. 17) pursuant CPLR §S motion (Motion Equity's motion branch of that the branch ORDERED and all cross-claim 3212 for summary summary judgment dismissing Plaintiffs Complaint and cross-claims s as against against Plaintiffs Complaint judgment dismissing 3212 further Equity, denied, and it is further Equity, is denied, on alternative on judgment in the alternative ORDERD, that that the branch of Equity's summary judgment motion for summary Equity's motion branch of ORDERD, further and it is further denied, and Klem is denied, against Klem its indemnification against law indemnification common law cross-claim for common its cross-claim to pursuant to judgment pursuant ORDERED, (Motion Seq. 19) for summary summary judgment motion (Motion Klem's motion that Klem's ORDERED , that extent Plaintiff's Complaint CPLR §S 3212 3212 for summary summary judgment dismissing Plaintiffs Complaint is granted granted to the extent judgment dismissing CPLR Klem only. that of contract contract cause cause of of action action is dismissed dismissed as against against Klem only. breach of Plaintiffss breach that Plaintiff This constitutes constitutes the decision decision and order order of of the Court. Court. This Joseph. J.S.C Joseph Han. lngnd Ingnd Joseph Hon. Justice Supreme Court Court Justice Supreme 15 [* 15] 15 of 15

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