Opinion
Index No. 117746/2009
05-15-2015
A&M EAST BROADWAY LLC, TRIPLE A LLC, and HO YIN WONG a/k/a PETER WONG, Plaintiffs v. HONG KONG SUPERMARKET, INC., and PCK REALTY, INC., Defendants
APPEARANCES: For Plaintiffs Marie Ng Esq. Sullivan Papain Block McGrath & Cannavo P.C. 120 Broadway, New York, NY 10271 For Defendant Hong Kong Supermarket, Inc. Michael J. Case Esq. LeClairRyan, P.C. 885 3rd Avenue, New York, NY 10022 For Defendant PCK Realty, Inc. David S. Kritzer Esq. and Donna Prox Esq. 180 East Main Street, Smithtown, NY 11787
DECISION AND ORDER
APPEARANCES: For Plaintiffs
Marie Ng Esq.
Sullivan Papain Block McGrath & Cannavo P.C.
120 Broadway, New York, NY 10271
For Defendant Hong Kong Supermarket, Inc.
Michael J. Case Esq.
LeClairRyan, P.C.
885 3rd Avenue, New York, NY 10022
For Defendant PCK Realty, Inc.
David S. Kritzer Esq. and Donna Prox Esq.
180 East Main Street, Smithtown, NY 11787
LUCY BILLINGS, J.S.C.:
I. BACKGROUND
Plaintiffs sue to recover for defendants' negligence that caused damage to plaintiffs' premises at 107 East Broadway and 93 Henry Street in New York County. Plaintiffs claim Hong Kong Supermarket, Inc., a tenant of the building at 109 East Broadway, adjacent to 107 East Broadway and 93 Henry Street, and co-defendant owner of the building, PCK Realty, Inc., created conditions in their building that caused a fire to spread there May 14, 2009, leading to their building's collapse. The collapse of the building at 10 9 East Broadway in turn necessitated the demolition of the premises at 107 East Broadway. The premises at 93 Henry Street sustained damage from smoke and water.
Hong Kong Supermarket moves for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b). For the reasons explained below, the court denies Hong Kong Supermarket's motion.
II. SUMMARY JUDGMENT STANDARDS
To obtain summary judgment, Hong Kong Supermarket must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). Only if Hong Kong Supermarket satisfies this standard, does the burden shift to plaintiffs to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of Hong Kong Supermarket's motion, the court construes the evidence in the light most favorable to plaintiffs. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). If Hong Kong Supermarket fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in plaintiffs' opposition. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384.
III. HONG KONG SUPERMARKET'S FAILURE TO MEET ITS BURDEN
Hong Kong Supermarket, supported by PCK Realty, insists on entitlement to summary judgment because plaintiffs have produced no evidence of Hong Kong Supermarket's negligence in causing the fire to ignite or spread so as to affect plaintiffs' premises. Contrary to defendants' contention, plaintiffs' failure to produce evidence of defendants' negligence does not alter Hong Kong Supermarket's burden upon its summary judgment motion. Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 A.D.3d 546, 547 (1st Dep't 2010). Defendants may not obtain summary judgment merely by pointing to the gaps in plaintiffs' evidence. Coastal Sheet Metal Corp. v. Martin Assoc., Inc., 63 A.D.3d 617, 618 (1st Dep't 2009); Bryan v. 250 Church Assoc., LLC, 60 A.D.3d 578, 578 (1st Dep't 2009); Torres v. Industrial Container, 305 A.D.2d 136, 136 (1st Dep't 2003); Deutsche Bank Natl Trust Co. v. Spanos, 102 A.D.3d 909, 911 (2d Dep't 2013).
A. Hong Kong Supermarket's Expert Evidence
Hong Kong Supermarket relies on a New York City Fire Department report dated July 6, 2009, which the parties at oral argument June 27, 2013, stipulated to be authenticated and admissible for purposes of determining this motion for summary judgment. Hong Kong Supermarket also relies on an affidavit dated March 12, 2013, by William Hayden, a fire and explosion investigation expert. Hayden recites the principles for determining the cause of a fire, although not specifically its spread, and concludes that: "Any determination of a fire's cause should be based on evidence rather than on the absence of evidence." Aff. of Michael Case Ex. A, at 4. Since Hayden was unaware of the evidence required to determine the cause of the fire or its spread, he concludes that the cause may not be determined.
Hayden also comments that nothing he reviewed indicated that Hong Kong Supermarket's leased premises violated any safety statutes or regulations, required further fire safety systems, or were not being maintained. This comment reflects plaintiffs' burden at trial, not defendants' burden to obtain summary judgment as discussed above, and, as to whether defendants violated a statute or regulation, usurps the court's determination for summary judgment and the factfinder's determination at trial. Buchholz v. Trump 767 Fifth, 5 N.Y.3d 1, 7 (2005); Lopez v. Chan, 102 A.D.3d 625, 626 (1st Dep't 2013); Reyes v. Morton Williams Associated Supermarkets, Inc., 50 A.D.3d 496, 497-98 (1st Dep't 2008). See Burtman v. Brown, 97 A.D.3d 156, 161 (1st Dep't 2012); Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 307 (1st Dep't 2007).
To be admissible, an expert's opinion must be based on facts in the record or personally known to the expert. Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725 (1984); Belmer v. HHM Assoc., Inc., 101 A.D.3d 526, 529 (1st Dep't 2012). See San Andres v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, 592 (1st Dep't 2012); Goldin v. Riverbay Corp., 67 A.D.3d 489, 490 (1st Dep't 2009). Under the exception for professionally reliable material, the expert may rely on evidence that has not been admitted but is accepted as reliable in the expert's profession. Hinlicky v. Drevfuss, 6 N.Y.3d 636, 648 (2006); Romano v. Stanley, 90 N.Y.2d 444, 452 (1997); Belmer v. HHM Assoc., Inc., 101 A.D.3d at 529.
In an appendix to his affidavit, Hayden identifies the materials he reviewed in reaching his conclusions as including "photographs, files, documents, records and other discovery materials exchanged in the captioned matter and related matters"; "deposition testimony of the witnesses in the captioned matters"; and "exhibits produced to date." Case Aff. Ex. A app. 2. Hayden's affidavit dated April 23, 2013, in reply, more specifically lists the evidence he reviewed, Case Reply Aff. Ex. P, but still does not identify which factual sources he relies on to support his conclusions, Monge v. Queens-Loner Is. Med. Group, P.C., 55 A.D.3d 341 (1st Dep't 2008); Butler-Francis v. New York City Hous. Auth., 38 A.D.3d 433, 434 (1st Dep't 2007), nor satisfy the test for professional reliability. Romano v. Stanley, 90 N.Y.2d at 452; Hambsch v. New York City Tr. Auth., 63 N.Y.2d at 725-26; Kovacev v. Ferreira Bros. Contr., Co., 9 A.D.3d 253 (1st Dep't 2004); D'Andraia v. Pesce, 103 A.D.3d 770, 771-72 (2d Dep't 2013).
Several of the sources of factual information Hayden reviewed also are not admissible evidence in the record. Ainetchi v. 500 W. End LLC, 51 A.D.3d 513, 515 (1st Dep't 2008); Browder v. New York City Health & Hosps. Corp., 37 A.D.3d 375, 376 (1st Dep't 2007) . The records from the New York City Department of Buildings and other reports are neither certified as public records, e.g., C.P.L.R. §§ 4520, 4540(a) and (b); Murray v. City of New York, 74 A.D.3d 550, 550 (1st Dep't 2010); Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 526 (1st Dep't 2010); Coleman v. Maclas, 61 A.D.3d 569, 569 (1st Dep't 2009); People v. Smith, 258 A.D.2d 245, 249-50 (4th Dep't 1999), nor accompanied by an affidavit or certification laying a foundation for the documents as business records or another exception to the rule against hearsay. People v. Ramos, 13 N.Y.3d 914, 915 (2010); People v. Vargas, 99 A.D.3d 481, 481 (1st Dep't 2012); IRB-Brasil Resseguros S.A. v. Portobello Intl. Ltd., 84 A.D.3d 637, 637-38 (1st Dep't 2011); Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471 (1st Dep't 2009).
Hayden's conclusion that the leased premises required no fire safety systems other than the systems already in place, absent any admissible evidence of the systems in place, lacks a factual basis and therefore is merely speculative. Graham v. New York City Hous. Auth., 42 A.D.3d 323, 325 (1st Dep't 2007); Butler-Francis v. New York City Hous. Auth., 38 A.D.3d at 434; Public Serv. Mut. Ins. Co. v. 99¢ Plus of Fifth Ave., 5 A.D.3d 276, 277 (1st Dep't 2004); Andrews v. New York City Hous. Auth., 66 A.D.3d 619, 620 (2d Dep't 2009). Insofar as Hayden concludes that the premises were being maintained in a safe condition, absent any admissible evidence of the condition in which the premises were maintained, such a comment is similarly bereft of a factual basis and speculative. Kalish v. HEI Hospitality, LLC, 114 A.D.3d 444, 446 (1st Dep't 2014); Santiago v. City of New York, 61 A.D.3d 574, 575 (1st Dep't 2009).
While Hayden also relies on the July 2009 Fire Department report, which the parties stipulated would be considered admissible, the report's findings, that the fire started in the west area of the first floor and that the cause of the fire was not ascertained because of the building's collapse, simply support Hayden's conclusion that the fire's cause was not ascertainable. See Marsden v. EMLT Realty Corp., 304 A.D.2d 417, 418 (1st Dep't 2003). Thus Hayden's affidavit establishes nothing more than the lack of evidence regarding the cause of the fire or its spread.
B. Hong Kong Supermarket's Other Evidence
Hong Kong Supermarket otherwise fails to demonstrate its lack of negligence in causing the fire to ignite or spread. Hong Kong Supermarket presents no evidence that the actions or omissions of the supermarket's officers and employees did not contribute to the ignition or spread of the fire. See Graham v. New York City Hous. Auth., 42 A.D.3d at 324; Butler-Francis v. New York City Hous. Auth., 38 A.D.3d at 433-34; Zvinys v. Richfield Inv. Co., 25 A.D.3d 358, 359 (1st Dep't 2006); Colon v. H&B Plumbing & Heating, 305 A.D.2d 235, 236 (1st Dep't 2003). Assuming an electrical system malfunction caused the fire, as various witnesses' deposition testimony suggests, for example, Hong Kong Supermarket presents no evidence that the supermarket did not install or maintain the leased premises' electrical system so as to create or contribute to its malfunction. See Robertson v. New York City Hous. Auth., 58 A.D.3d 535, 536 (1st Dep't 2009); Butler-Francis v. New York City Hous. Auth., 38 A.D.3d at 434.
The testimony of Sandy Wong, Hong Kong Supermarket's district manager, that he lacked notice of any malfunction or hazardous condition in the electrical system, fails to demonstrate that the supermarket did not create an electrical malfunction or hazard. Since no evidence actually establishes that the cause of the fire was the electrical system, his testimony further fails to demonstrate that the supermarket did not create or contribute to another fire hazard in the premises. Nor does Hong Kong Supermarket demonstrate its lack of negligence with any evidence that the supermarket installed or maintained working fire safety equipment, such as required fire stopping and sprinklers, to prevent the ignition or spread of a fire. Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 A.D.3d at 547.
The testimony of plaintiff Ho Yin Wong, plaintiff A&M East Broadway LLC's manager and one of its owners or members, that he did not know the cause of the fire, like the Fire Department report's conclusion that the fire's cause was not ascertained, only establishes that the cause was unknown, not the absence of Hong Kong Supermarket's negligence as a cause. Finally, the testimony of Ping Kong, PCK Realty's president, and Clara Kong, its secretary, that PCK Realty presents to support its co-defendant's motion, does not bear on Hong Kong Supermarket's liability.
IV. PCK REALTY'S REQUEST FOR SUMMARY JUDGMENT UPON A SEARCH OF THE RECORD
In supporting Hong Kong Supermarket's motion for summary judgment, PCK Realty seeks dismissal of the complaint, but does not move for that relief, relying instead on the court's authority to search the record and grant summary judgment to a non-moving party. C.P.L.R. § 3212(b). Like Hong Kong Supermarket, PCK Realty merely points to the absence of evidence that, as the owner of the 109 East Broadway building, it was negligent and fails to present any evidence that it was not negligent in causing the fire to ignite or spread. Nor does PCK Realty present any basis for dismissing Hong Kong Supermarket's cross-claim for indemnification. Therefore, even upon a search of the record, there is no basis to grant summary judgment to PCK Realty dismissing the claims against it. American Tr. Ins. Co. v. Marte-Rosario, 111 A.D.3d 442, 443 (1st Dep't 2013); Castlepoint Ins. Co. v. Moore, 109 A.D.3d 718, 719 (1st Dep't 2013).
V. CONCLUSION
Since defendant Hong Kong Supermarket, Inc., fails to meet its burden in seeking summary judgment through admissible evidence as required, the court denies this defendant's motion for summary judgment. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; JMD Holding Corp. v. Congress Fin. Corp, 4 N.Y.3d at 384; Seleznyov v. New York City Tr. Auth., 113 A.D.3d 497, 498 (1st Dep't 2014); Scafe v. Schindler El. Corp., 111 A.D.3d 556, 557 (1st Dep't 2013). Although its notice of motion does not mention summary judgment on or dismissal of any cross-claims by defendant PCK Realty, Inc., Hong Kong Supermarket seeks this relief as well as dismissal of the complaint. Yet no party presents PCK Realty's answer interposing cross-claims, nor does Hong Kong Supermarket present any basis for dismissing any cross-claim distinct from defendants' inadequate bases for dismissing the complaint. Therefore, insofar as any cross-claims by PCK Realty are unrelated to plaintiffs' claims, the court may not search the record to grant summary judgment dismissing PCK Realty's cross-claims. Johnson v. Chelsea Grand E., LLC, 124 A.D.3d 542, 543 (1st Dep't 2015); Castlepoint Ins. Co. v. Moore, 109 A.D.3d at 719; Horst v. Brown, 72 A.D.3d 434, 435 (1st Dep't 2010); Baseball Off, of Commr. v. Marsh & McLennan, 295 A.D.2d 73, 82 (1st Dep't 2002).
As set forth above, the court also denies summary judgment to defendant PCK Realty, Inc., dismissing the claims against it based on a search of the record. C.P.L.R. § 3212(b). This decision constitutes the court's order. DATED: May 15, 2015
/s/_________
LUCY BILLINGS, J.S.C.