Opinion
Index No. E2019005048
02-16-2023
Erie Insurance Company, as subrogee of MAC'S PIZZERIA & GRILL CORP; MYTHA PAUL; CARLY E. CHUNG d/b/a TEXTURES BEAUTY BAR; JOHN NGUYEN d/b/a ANGEL NAILS; JOHN P. JURS d/b/a JURS BARBER SHOP; and JEANELL HOLMES d/b/a JEANELL HOLMES, Plaintiffs, v. Children's Palace Childcare Center, Inc., DELL, INC., and DELL, INC. d/b/a DELL COMPUTERS, INC., Defendants.
For Erie Insurance: RUPP BAASE PFALZGRAF CUNNINGHAM LLC By: Brandon M. Snyder, Esq. For Children's Palace: LIPSITZ GREEN SCIME CAMBRIA LLP By: Patrick J. Mackey, Esq. NIELSEN, ZEHE & ANTAS, P.C. By: Frank N. DeBoni, Esq. For the Dell, Inc.: LAW OFFICE OF DAVID TENNANT PLLC By: David H. Tennant, Esq., REEVES & BRIGHTWELL LLP By: Ryan Pierce, Esq.
For Erie Insurance: RUPP BAASE PFALZGRAF CUNNINGHAM LLC By: Brandon M. Snyder, Esq.
For Children's Palace: LIPSITZ GREEN SCIME CAMBRIA LLP By: Patrick J. Mackey, Esq. NIELSEN, ZEHE & ANTAS, P.C. By: Frank N. DeBoni, Esq.
For the Dell, Inc.: LAW OFFICE OF DAVID TENNANT PLLC By: David H. Tennant, Esq., REEVES & BRIGHTWELL LLP By: Ryan Pierce, Esq.
HON. CHRISTOPHER S. CIACCIO ACTING SUPREME COURT JUSTICE
Plaintiff Erie Insurance Company ("Erie") insured several businesses that sustained property damage in a fire that broke out in the commercial strip plaza where they were located.
Having paid the damages sustained by its insureds and been subrogated to their damage claims, Erie brought an action against defendants Dell Inc. and Dell Inc. d/b/a Dell Computers, Inc. ("Dell"), claiming that the fire was caused by a defective a power cord manufactured and/or shipped by Dell and used by another business at the plaza, the Children's Palace Childcare Center, Inc. ("Children's Palace"). Erie also claims that Dell breached its warranty of express and/or implied merchantability.
Erie in the same action also sued the Children's Palace, claiming that it was negligent, reckless and/or otherwise failed to use due care in the course of its use, care, maintenance, tenancy, and occupancy of the leased premises by, among other things, failing to take appropriate precautions to prevent a fire from originating therein.
Dell and the Children's Palace now each move separately for summary judgment. Dell argues that it did not manufacture, sell or ship the power cord, and that the alleged defective power cord did not cause the fire. Children's Palace argues it had no notice or any reason to know of any defective condition on its property that could have caused or contributed to a fire.
For the reasons below, because the defendants have each established their entitlement to judgment as a matter of law, and Erie failed to come forward with admissible proof sufficient to create a material issue of fact, the motion of Dell for summary judgment is GRANTED and the action against it is DISMISSED. The motion of Children's Palace is likewise GRANTED and the action against it is DISMISSED.
FACTS
The following facts are not disputed.
On June 2, 2016, a fire broke out at a commercial plaza located at 2338-2360 Lyell Avenue in the Town of Gates, County of Monroe. The Gates Fire Department "fire command" reported that the fire was found to be inside the location occupied by the Children's Palace. An investigator from the Rochester Fire Department assisting with the investigation gave the opinion that the fire originated in the area of an alcove within a room of the Children's Palace, but he was unable to determine if the "fire originated below the ceiling level or above it."
According to his deposition testimony, Amos McCullough ("Amos"), the owner of Children's Palace, had purchased in 2013 two Dell personal computers from an Office Max store. The computers each came in a box and each box contained a power cord.
Amos stated that he could not recall whether the boxes in which the computers and power cords came had any markings on them let alone the name "Dell," although he did recall that each box was "sealed." No testimony was given regarding how the boxes were sealed. He never looked at an instruction manual. He did not know who put the computer components in the boxes:
Q: So as far as you were concerned, were you buying a computer that was packaged by Dell and sent to Office Max and sold directly to you?
A: I don't know who packaged up the computers. I just know I bought it from Office Max. It was in the box.
Deposition transcript of Amos McCullough, P. 114, L. 15-21.
He had no training or background in electronics let alone electrical engineering. He plugged each power cord into separate "power strips" also known as a "Relocatable Power Tap" (or RPT). The power strips (two) were then plugged into an electrical outlet located on a wall directly behind the table on which the computers were located.
The area where the power cords were located was not subject to foot traffic. The cords ran under a desk. At no time from the date of purchase until the date of the fire did Amos ever notice a problem with either power cord, such as fraying, sparks, damage, tattering, etc. The power cords always performed and never caused a breaker switch to trip. They remained under the table from the date of installation, untouched. He was not aware of any dangerous condition.
There was an "electrical room" near the premises of the Children's Palace but not on them. The landlord was responsible for maintaining the electrical room. Amos noticed people coming in and out of the room, but as far as he knew it was always locked, he did not have access to it, and the room was not accessible from his premises except by exiting. He never went into the electrical room, but when he looked into it, he saw a "maze" of wiring, which to him meant that "I don't know how one knew where one wire was coming from. It was just a cluster of wires."
It is undisputed that the plug of the power cord and the strands of wire connecting the plug to the terminal were composed of sub-standard materials that did not meet the standards of the "Underwriters Laboratory."
Expert submissions
In support of its motion and on the issue of whether Dell manufactured the power cord in question, Dell submitted affidavits of two witnesses previously disclosed as part of CPLR 3101(d)(1) expert disclosure.
Jay Voigt averred that he has been a "product safety investigator" with Dell since 2020, and that he was a "regulatory product engineer" with Dell from 1998 through 2020. Over the course of his career, he has been familiar with Dell products, including power cord sets and plugs, and he can state that the power cords in question, the ones purchased by Amos and that came in the box with the Dell computers, were not sold or manufactured by Dell.
In arriving at his conclusion, he reviewed Erie's CPLR 3101(d)(1) expert disclosure which included reports and the anticipated testimony of Lee Tutt, a "forensic materials scientist," and of Howard DeMatties, a "forensic electrical engineer." Mr. Voight assumed the accuracy of the observations they each made of the power cords and other devices in the area where the fire had occurred. He noted that each expert had concluded that the plug of each power cord was made of an inferior substance - nickel coated aluminum - and that each power cord utilized undersized wires. These features, Mr. Voight concluded, mean (to summarize) that the cords were not compliant with the applicable material and performance requirements established by the Underwriters Laboratories ("UL") and thus could not have been manufactured, shipped or sold by Dell, which to his knowledge and experience only used power cords complaint with UL standards. As he stated:
"I have never seen any power cord sold or supplied by Dell that had either sub-18AWG conductors or aluminum plug blades. Such power cords are not (and have never been) sold or supplied by Dell. Dell's suppliers of power cords do not (and have never) supplied power cords with either of those characteristics to Dell. Dell's suppliers are contractually bound to supply power cords that meet the UL and Dell requirements (and therefore they do not and have not supplied power cords of the type allegedly at issue in this case).
A second Dell employee, Shawn Dempsey, averred that he has been employed by Dell for thirty years, and most recently, is currently a product safety investigator. He is "knowledgeable about Dell's products, and [is] able to identify a damaged Dell product by comparing its physical characteristics to an exemplar of the same product model and/or by comparing a product's documentation (diagrams, blueprints, product manuals, visual guides) to the damaged product."
He is also "familiar with the certification requirements that each Dell product must fulfill before it can be sold. For instance, in the United States, all Dell products must satisfy Underwriter's Laboratories' ("UL") product safety standards, before they can be sold."
He described the various ways Dell tracks the purchase of Dell products: product codes on damaged equipment, purchaser address or telephone numbers, etc. No Dell products could be traced to Children's Palace.
He attended a scene inspection on July 27, 2016; however, he was told that all evidence of computer and monitor remains had been removed.
He was present for an examination of the evidence on Friday March 10, 2017, along with Dell's counsel and Dell-retained electrical engineer, Richard Vicars.
Based on his observations of the computers and monitors, Mr. Dempsey "was able to determine that the two computers were both Dell OptiPlex 760 desktop computers, as the physical characteristics (location of air vents, connectors, expansion card slots, etc.) aligned with that model." Further, he stated that "OptiPlex 760 model desktop computers were shipped by Dell during the 2008-2010 timeframe," meaning that if Amos purchased the computers in 2013, then the "computers had been out of Dell's possession for at least approximately 3 years and up to 5 years." Also, he stated that during the time that Dell was shipping Optiplex computers, it only supplied power cords with 18AWG conductors and plug blades containing copper material. Dell to his knowledge never used a power cord with sub-18AWG or with aluminum blades. "Dell only supplies power cords with 18AWG conductors and with plug blades containing copper material (including during the time that Dell shipped the OptiPlex 760 model computer)."
On the issue of whether the power cord caused the fire, Dell submitted the affidavit of Richard Vicars, a "certified fire and explosion investigator for Jensen Hughes" with 33 years of experience in "failure analysis, systems engineering and design, manufacturing and operations," and currently serves as the Director of Forensic Sciences for Jensen Hughes. In that capacity he leads a "fire investigation and failure analysis team for its Global Operations Division. He has a Bachelor of Science degree in electrical engineering from Purdue University.
He attended multiple examinations of evidence.
Drawing on his observations of the evidence and damaged materials taken from the Children's Palace; security video footage, the number of nearby possible (and not ruled-out) ignition sources such as a printer, the lack of "continuous connection between any of the electrical devices, including the Dell desktop computers, and any position on the RPT," including position No. 6, thus making any conclusion that the power cord at issue was plugged into position #6 speculative; the non-existence of power cord strands at position #5 and #6 of the RPT "that would permit reliable analysis"; and the displacement of much of the material from the fire scene before it could be examined; he states that "The correct classification of the cause of this fire loss is 'undetermined' under the required fire science methodology." Further, he avers that "There is no evidence that the power cord referenced by Plaintiff's experts more likely than not caused the fire," and that "There is not evidence that any Dell product more likely than not caused the fire at issue."
In opposition to the motion Erie submitted the affidavit and (unsworn) report of Lee Tutt, a "forensic material scientist at Forensic and Failure Analysis, Inc," who has a doctorate in inorganic chemistry and works primarily doing investigations into "product failures." Erie also submitted its (inadmissible) CPLR 3101(d) disclosure response identifying Lee Tutt as an expert it intended to call as a witness.
He avers that "[b]ased on the facts of this case as outlined by my expert report, I opined, to a reasonable degree of certainty in my area of expertise as an electrical cause-and-origin expert, that the Dell power cord failed and caused the fire." His report relates that the power cords were "severely underrated and used a poor alloy comprising the conductors for the intended use. The nickel coated aluminum is also a poor choice for the plug terminals, as the potential for galvanic corrosion and degradation is high." The report includes photographs of the damaged power cord.
ANALYSIS
It is well settled that "[t]he proponent on a summary judgment motion bears the initial burden of establishing entitlement to judgment as a matter of law by submitting evidence sufficient to eliminate any material issues of fact" (Oddo v City of Buffalo, 159 A.D.3d 1519, 1520 [4th Dept 2018]; see Whelan v GTE Sylvania, 182 A.D.2d 446, 449 [1st Dept 1992]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980].) "Once [that] showing has been made..., 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" (Kwitek v Seier, 105 A.D.3d 1419, 1421-22 [4th Dept 2013] [internal quotations and citations omitted]; see also Bulluck v Fields, 132 A.D.3d 1382, 1382 [4th Dept 2015]).
Dell's summary judgment motion
"In the case of a defendant who denies having manufactured an allegedly defective product, the burden is met when the defendant supports its summary judgment motion with affirmative evidence that it did not manufacture the product that caused the injury" (Antonucci v Emeco Indus., 223 A.D.2d 913, 914 [3d Dept 1996], citing Kessler v Joe Hornstein, Inc., 207 A.D.2d 278 [1st Dept 1994]; Whelan v GTE Sylvania, 182 A.D.2d 446 [1st Dept 1992]). Here, Dell has met its initial burden with regard to the issue of whether it manufactured, sold and/or shipped the power cord.
The affidavits of the Dell employees, both of whom had worked for Dell for years, constitute "affirmative evidence" (Antonucci at 914) that it did not manufacture the power cord (see generally Whelan v GTE Sylvania, 182 A.D.2d 446, 449 [1st Dept 1992]; Bevens v Tarrant Mfg. Co., Inc., 48 A.D.3d 939 [3d Dept 2008]; Kessler v Joe Hornstein, Inc., 207 A.D.2d 278 [1st Dept 1994]).
The power cords had characteristics that neither employee had ever known to be associated with power cords supplied by Dell for its computers. In forming that opinion, Dell employee Dempsey compared the product's physical characteristics "to an exemplar of the same product model and/or by comparing a product's documentation (diagrams, blueprints, product manuals, visual guides) to the damaged product," thus distinguishing this case from Ebeneezer Baptist Church v. Little Giant Manufacturing Co., Inc., 28 A.D.3d 1173 (4th Dept. 2006) , where the Appellate Division, Fourth Department denied summary judgment because the defendant submitted "conclusory" affidavits of two non-employees which did not reference any records they had reviewed in forming their opinion.
Cited in a related case arising out of the same fire by plaintiff Harleysville Harleysville Insurance Company (index # E2019005047).
This case is also distinguishable from Antonucci v Emeco Indus., Inc., (223 A.D.2d 913, 914 [3d Dept 1996]), where the defendant had examined the defective chair that injured the plaintiff but did not reference its findings in support of its summary judgment motion, which was denied. Here a Dell employee and a Dell expert examined the power cords in question and made their observations part of their submissions.
In another Fourth Department case, Universal Resources Holdings, Inc. v N. Penn Pipe & Supply, Inc. (129 A.D.3d 1671 [4th Dept 2015]) it was held that the defendant had not established sufficiently that it did not manufacture the defective pipe which injured the plaintiff, finding defendant had not produced "affirmative evidence" (Universal Resources Holdings at 1671). The court, however, chose not to recite the factual submissions, so the case provides little guidance as to what it will deem "affirmative evidence" other than to state a generalized rule of law.
More nearly on point, on the very fact-specific issue of the identity of the manufacturer of a defective product, are Whelan v GTE Sylvania, 182 A.D.2d 446, 449 (1st Dept 1992) (holding that the affidavit of expert that a light bulb which exploded and injured the plaintiff's son overcame as a matter of law the "bald assertion" by the father that he bought a GTE Sylvania light bulb); Bevens v Tarrant Mfg. Co., Inc., 48 A.D.3d 939 (3d Dept 2008) (granting summary judgment where an expert affidavit stated that a defective wire that caused injury was not manufactured by the defendant); Kessler v Joe Hornstein, Inc. 207 A.D.2d (278 1st Dept 1994) (holding that the presence of a nearby box with the defendant's name on it not enough to overcome expert testimony that the movie projector bulb which exploded and caused injury was not manufactured by the defendant).
Erie also contends that Dell cannot demonstrate its entitlement to judgment because it "has offered no evidence that would suggest that the Dell boxes were tampered with or otherwise interfered with after they left a Dell manufacturing facility."
That assertion misstates or at least confuses a key fact: the boxes in which the computers were sold were never identified as "Dell" boxes.
That aside, in requiring an explanation of how a non-Dell power cord got into a box with Dell computers, Erie seeks to place the burden on Dell to "prove a negative" (Martinez v Hunts Point Coop. Mkt., Inc., 79 A.D.3d 569, 570, [1st Dept 2010]) that the packaging of the Dell computer from the factory was tampered with or re-sold. Dell does not have the burden on that issue, and "our jurisprudence does not require a defendant [moving for summary judgment] to prove a negative on an issue as to which [it] does not bear the burden of proof" (Martinez v Hunts Point Coop. Mkt., Inc., 79 A.D.3d 569, 570 [1st Dept 2010] (internal quotations and citations omitted).
Erie has not submitted proof or even case law in support of its argument that there is a material issue of fact as to the issue of the manufacture of the power cord, having focused more on the point that Dell cannot sustain its burden of showing entitlement to judgment as a matter of law. Erie does not explicitly argue that "circumstantial" evidence exists sufficient to require a trial. Nonetheless, such an argument, if made, would not defeat Dell's motion.
It is true that "The identity of the manufacturer or supplier may be established by circumstantial evidence" (Ebenezer Baptist Church v Little Giant Mfg. Co., Inc., 28 A.D.3d 1173, 1174 [4th Dept 2006]; see also Otis v Bausch & Lomb, 143 A.D.2d 649, 650 [2d Dept 1988] [" the identity of the manufacturer of the product are issues of fact capable of proof by circumstantial evidence] [citing Coley v Michelin Tire Corp., 99 A.D.2d 795 [2d Dept 1984]; Yager v Arlen Realty & Dev. Corp., 95 A.D.2d 853 [2d Dept 1983]; Weinberger, NY Product Liability § 8:05).
Here, however, any arguably circumstantial evidence is too "speculative" and "remote" (Deal v Wood, 48 A.D.3d 1093, 1094 [4th Dept 2008]) to defeat summary judgment, even when the "[t]he totality of the evidence (is) viewed in a light most favorable to the nonmoving party" and is given "the benefit of every reasonable inference" (Kennedy v Atlas Fence, Inc., 90 A.D.3d 1122, 1123 [3d Dept 2011], citing Gadani v. Dormitory Auth. of State of NY, 43 A.D.3d 1218, 1219 [3d Dept 2007]). In that regard it has been held that "Speculative or conjectural evidence of the manufacturer's identity is not enough (Healey v Firestone Tire & Rubber Co., 87 N.Y.2d 596, 602 [1996]), and that there must exist a "reasonable probability" that a defendant manufactured the product that caused the plaintiff's accident (Healey v Firestone Tire & Rubber Co., 87 N.Y.2d 596, 602 [1996]; see also Ebenezer Baptist Church v Little Giant Mfg. Co., Inc., 28 A.D.3d 1173, 1174 [4th Dept 2006]).
Erie can only show that a power cord was in a box with a Dell computer system sold by a third-party seller. But this alone does not constitute "a reasonable probability" of the existence of a fact, circumstantial or otherwise, and in making that judgment, common sense, or at least common experience, must be considered. No case law needs to be cited to say that most people have an experience of returning items to a store, especially electronic equipment, often having discarded the original boxes (but still looking for the refund), and of purchasing new equipment in a box that has tape with which it has been re-sealed. Most people also have the experience of swapping out power cords with newer, and perhaps unknowingly, sub-standard power cords.
If Erie had presented proof that the computers had been recently manufactured and shipped, say, within even the prior year; if the computers had been bought directly from Dell; if the box had Dell markings; if the "seal" on the box were hermetic in some way, such that the box could not be "re-sealed," thus confirming that the computers hadn't been returned and re-packaged by Office Max; if the components inside the box, including the power cords, were "sealed," as they often are in plastic wrap, suggesting that they were "packaged" together by Dell; then it could be said that sufficient circumstantial evidence exists to deny summary judgment and justify a trial on the issue of whether Dell manufactured the power cord. But none of those circumstances are present here.
Thus, it is explicitly held here that any inference that Dell manufactured the power cords in question based on the power cords having been in the same box as the Dell computers is speculative, not reasonably probable, and cannot defeat the motion for summary judgment.
This case can be distinguished from Clark v Globe Bus. Furniture, 237 A.D.2d 846, 847 [3d Dept 1997], in which the Third Department upheld the lower court's denial of summary judgment, holding that "gaps in its adversary's case do not entitle the moving party to summary judgment" (citing Antonucci v. Emeco Indus., 223 A.D.2d 913, 914) and noting that "the identity of [a] manufacturer... may be proven circumstantially" (citing Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601; Otis v. Bausch & Lomb, 143 A.D.2d 649, 650). The court referred to the fact that a photocopy of a sticker bearing the defendant's logo was allegedly removed from the bottom of the chair, from which it found was sufficient circumstantial evidence to defeat the defendant's claim that it never manufactured a chair with a certain model number (Clark v Globe Bus. Furniture, 237 A.D.2d 846, 847 [3d Dept 1997]).
Here there is no sticker on the power cords (they were burned off in the fire), no insignia of any kind, and nothing else to allow the inference that Dell manufactured the power cord.
Thus, Dell is entitled to summary judgment as a matter of law dismissing the action on the issue of whether it manufactured or shipped the power cord in question.
Dell also argues in support of its motion that it did not cause the fire because, as set forth by its expert, the cause of the fire is "undetermined," and Erie has come forward with no proof (in its expert disclosure) that the power cord in question caused the accident. The issue is moot, in light of the holding above that Dell did not manufacture the power cord claimed to have been the cause of the fire. Nonetheless, Dell has established its entitlement to judgment on this issue as well. A defendant meets his burden by submitting evidence that the cause of a fire is "undetermined" (New York Mut. Underwriters v King, 85 A.D.3d 1645, 1646 [4th Dept 2011]; Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 A.D.3d 1129, 1130 [4th Dept 2006]).
However, Erie met its burden of establishing a material issue of fact by submitting the affidavit of Lee Tutt, which although somewhat conclusory in its opinion that the power cord caused the fire (as no such opinion is to be found in the attached report) is sufficient to defeat summary judgment on the causation issue (see generally Speller v Sears, Roebuck & Co., 100 N.Y.2d 38, 44 [2003]: "Where causation is disputed, summary judgment is not appropriate unless "only one conclusion may be drawn from the established facts" (citing Kriz v Schum, 75 N.Y.2d 25, 34 [1989] [internal quotations omitted]).
But as stated, that is neither here nor there.
As Dell has established that it did not manufacture the power cord in question, and Erie having failed to raise a question of fact, summary judgment is granted as to the breach of warranty claim (Fifth Cause of Action) as well.
The motion for summary judgment is GRANTED and the complaint against Dell is DISMISSED.
Children's Palace's summary judgment motion
In regard to premises liability, "one who both occupies and controls the property, has a common-law duty to keep the premises it occupies in a reasonably safe condition, even when the landlord has explicitly agreed in the lease to maintain the premises" (Parslow v Leake, 117 A.D.3d 55, 60 [4th Dept 2014] [internal quotations and citation omitted]; see also Reimold v Walden Terrace, Inc., 85 A.D.3d 1144, 1145 [2d Dept 2011]; Milewski v Washington Mut., Inc., 88 A.D.3d 853, 854-855 [2d Dept 2011]; Bulluck v Fields, 132 A.D.3d 1382, 1382 [4th Dept 2015]).
Erie claims that Children's Palace and/or its employees breached a "duty to act in a reasonable manner through its occupancy, tenancy, care, use, and maintenance" of its premises when they acted "negligently, recklessly, and/or carelessly in failing to take precautions to prevent a fire from originating on the subject property."
The theory put forth by Erie in its expert disclosure (and deemed admitted in its Statement of Material Facts) is that the power cords that came with the Dell computers were made of sub-standard materials that would degrade and overheat and create a risk of and did cause a fire.
Its theory as to Children's Palace is that the owner Amos McCullough knew or should have known of "electrical issues within the building," (Erie Statement of Material Facts, paragraph 20), most notably, within the electrical room, because, as he testified, he saw wires that were a "mess" and a "maze" and workers who did not appear to be electricians going in and out. Also, Erie asserts Children's Palace is liable because it "stored a competent ignition source: a large amount of paper and decorations near these outlets which flowed to the electric room" (Erie Statement of Material Facts, paragraph 23).
By affidavit and deposition testimony Amos McCullough, on behalf of Children's Palace, negates each theory and establishes entitlement to judgment as a matter of law.
He stated that at no time during the period Children's Palace conducted business at 2348 Lyell Avenue (2013-2016) did he ever notice any defect or issue with the power cords, such as wear and tear, or damage, or a circuit breaker caused to trip, nor was he ever notified of any defects or issues. At no time did he ever witness any event that caused him to believe that one or both power cords connected to the Dell computers created a dangerous condition or a risk of fire.
In his deposition he spoke of an electrical room, the wires in which seemed to him to be inexplicably" a maze" and "a mess," however the electrical room was not on his premises, the room was ordinarily kept locked, and having no electrical training he had no reason to know that there was anything about the electrical room that posed a hazard. Moreover, Erie's expert disclosure does not mention the "electrical room" as being defective or the cause of the fire.
Regarding the "papers and decorations" as being an "ignition source, Amos testified that there were none.
His actual testimony at page 116 of the transcript of his deposition testimony is as follows:
Q: And were the power strips and the outlet - were they underneath the table where the computers were located?
A. Yes.
Q. Was there anything else under that table?
A. No. Not that I recall.
Q. Not that you recall. Did they keep paper for the printer somewhere in the area?
A. Yeah. There was paper in the area. I don't know where.
Moreover, it is noted that the theory that there were "papers and decorations" under the table on which the computers sat comes from the inadmissible expert disclosure regarding a report by Mr. Howard DeMatties (and filed in this motion by Children's Palace), who did not personally observe the area under the table, but rather relied upon "reports," none of which are identified by Mr. DeMatties and none are part of the expert disclosure or part of any submission. If he is referring to the Monroe County Fire Incident Report (NYSCEF No. 93), the reporting investigator ("R/I") states that he observed "various combustibles present in the 'before and after' care room" (where the fire originated) "that were not burned."
Thus, the actual testimony contradicts Erie's assertion, but even if it were true, that papers and decorations stored near an outlet created a hazard, it would be irrelevant unless it has been shown that Amos knew or had reason to know that storing those items near an electrical outlet (an entirely normal, common, "every day" thing to do) created a hazard.
Erie references that Amos was aware that utilizing all the plugs in the power strip or RPT would "short-circuit" it. That does not raise an issue of fact as to whether, even assuming he did so, to do so is a known hazard let alone that it caused the fire.
While it has been held, and Erie argues, that a defendant moving for summary judgment cannot rely on "gaps in the plaintiff's proof" (Sarago v Iroquois Fence, Inc., 206 A.D.3d 1654, 1655 [4th Dept 2022]), here Children's Palace does not have the burden to state lack of knowledge, actual or constructive, of a condition which has not been shown or even alleged to have anything to do with the accident. There has to be an initial showing, somewhere in the pleadings and disclosure, that a complained-of condition caused the fire. Nowhere in Erie's expert disclosure is there a statement as to what, if anything, caused the fire. It is not dissimilar from a slip and fall case, in which" a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" (Doner v Camp, 163 A.D.3d 1457 [4th Dept 2018]).
All that is known from DeMatties' report is that the "fire development" was in an alcove located at a computer workstation on the premises of the daycare center, and that a power cord sustained an "electrical failure" and was composed of "inferior components prone to mechanical damage and over-heating." Even if this is deemed an admissible opinion as to causation, it speaks not at all to the role played by the "papers and decoration" stored under the table, or the "electrical room."
Thus, Children's Palace has established its entitlement to judgment as a matter of law.
In opposition Erie has submitted no proof that Amos knew that the power cord was defective and sub-standard, or that he knew or should have known that plugging the power cords into a wall outlet was a hazard. There is no proof (or supporting case law) that a tenant of a commercial space, like Amos, should know that there were other electrical issues with the tenancy.
Erie has submitted no proof that Amos knew or should have known of a defect with respect to the electrical room. Simply because the wires appeared to be a "mess" in the electrical room does not provide a basis to infer that Amos should have known that the wiring presented a fire hazard or otherwise created an unsafe condition in his space. There is not even an opinion that the "mess" in the electrical room was a hazard or had anything to do with the fire. Also, even if it can be inferred that the condition of the electrical room should have raised some suspicion as to whether it presented a fire hazard, Erie has not shown that Amos had any control over the electrical room. It was not on his premises, and it can be reliably and reasonably presumed it was controlled by the landlord. Certainly, no evidence suggests otherwise.
Erie also submits in opposition the (the entirely conclusory) affidavit and unsworn report of Lee Tutt (NYSCEF Nos. 107 and 108). Mr. Tutt says nothing about the responsibility of Children's Palace as to whether the owner knew or should have known of any defect or dangerous condition associated with the power cord, the electrical room, or the fact that he used all the receptacles on the power strip. He draws no definitive conclusion (certainly none within a degree of certainty) about what caused the fire.
Counsel also suggests, although no expert evidence supports the assertion, that Amos McCullough should have known better than to have "installed" Dell computers in outlets near the electric room. However, he did not install computers, he plugged them in to an available outlet, and none of his concerns regarding the electrical room that was not within his control rise to the level of actual or constructive knowledge of a defective condition, given his lack of experience with electrical matters.
This case can be distinguished from Bulluck v Fields (132 A.D.3d 1382, 1382 [4th Dept 2015]). There a fire broke out in a residence, and a personal injury action was brought against the owner. The trial court denied summary judgment and the Appellate Division, Fourth Department, affirmed, stating that there was a triable issue of fact as to "whether the fire was the result of defendant's negligence in maintaining a dangerous condition at her residence, i.e., faulty electrical wiring in the room where the fire originated" (Bullock at 1382). The facts here differ. Children's Palace did not own the electrical wiring in the receptacle or electrical room (if it even could be shown to have been the cause of the fire) and had no responsibility to assume or oversee the landlord's duty to maintain it, if he could have even detected that it was faulty, which other than by dismantling the receptacle he could not. It would be wholly unreasonable to affix a duty on the tenant of a commercial space to examine each outlet for "faulty wiring." Here, the only visible wiring issue was the "maze" of wires in an electrical room maintained by the owner of the strip plaza, which no one says presented a hazard or caused the fire.
While it is true that the power cord was faulty and was on the premises, it would be equally unreasonable to place on the owner of a daycare center a duty to know that the plugs and wiring on the power cord purchased from a known nationwide seller of computer equipment were below UL standards and constituted a fire hazard.
Accordingly, Erie, having failed to demonstrate a question of fact as to whether Children's Palace and/or its employees had notice, actual or constructive, of a dangerous condition existing with the power cord, the (non-existent) papers and decorations, the electrical room, the receptacle, and/or the ceiling power strip, and having failed to establish that they had control over or that they had notice of a dangerous or defective condition associated with them, or even that any of them caused or contributed to the fire, the motion for summary judgment is GRANTED and the complaint against Children's Palace is DISMISSED.
CONCLUSION
The complaint is dismissed in its entirety.