Opinion
40537/07
01-13-2012
Casa Di Roma Furniture, Inc., Plaintiff, v. Sovereign Bank, New Color Brush, Inc., Nu Color, Inc., John Cambio, ABF Environmental Inc., and Bensonhurst Construction Corp., Defendants.
Attorney for Plaintiff: COREY KAYE, Esq. KAYE & LENCHNER Attorney for Sovereign: DEBORAH BRYANT, Esq. CULLEN & DYKMAN, LLP Attorney for ABF: ELLIOTT MARTIN, Esq. Attorney for Bensonhurst: MARK CARUSO CARUSO, CARUSO & BRANDA Attorney for ABF: CINDY VARRECCHIA AHMUTY, DeMERS & MCMANUS
Attorney for Plaintiff: COREY KAYE, Esq. KAYE & LENCHNER
Attorney for Sovereign: DEBORAH BRYANT, Esq. CULLEN & DYKMAN, LLP
Attorney for ABF: ELLIOTT MARTIN, Esq.
Attorney for Bensonhurst: MARK CARUSO CARUSO, CARUSO & BRANDA
Attorney for ABF: CINDY VARRECCHIA AHMUTY, DeMERS & MCMANUS
Carolyn E. Demarest, J.
In this action by plaintiff Casa Di Roma Furniture, Inc. (plaintiff) alleging asbestos contamination of the second floor of premises leased by it from defendant Sovereign Bank (Sovereign) that allegedly occurred during the replacement of the premises' roof, Sovereign moves for summary judgment, pursuant to CPLR 3212: (1) dismissing the amended complaint's first cause of action on the ground that plaintiff cannot meet its burden of proof that there was negligence, violations of law, or "asbestos contamination" after it completed the roof replacement project, (2) dismissing the amended complaint's seventh cause of action on the ground that the evidence does not support a finding of constructive eviction nor breach of the covenant of quiet enjoyment, and (3) in its favor on its cross claim for full indemnification from co-defendant ABF Environmental, Inc. (ABF) on the ground that the amended complaint contains no allegations of negligence on its part, independent of the claims asserted against ABF.
Plaintiff moves for summary judgment, pursuant to CPLR 3212, on the issue of liability in its favor as against Sovereign, and, upon the granting of summary judgment in its favor, for an order directing that an inquest be held on the issue of damages. Defendant John Cambio moves for an order dismissing plaintiff's fourth and eleventh causes of action insofar as they are directed at him, individually.
BACKGROUND
Plaintiff is a retail furniture store, which leased commercial space within a two-story building owned by Sovereign, located at 8514 18th Avenue, in Brooklyn, New York (the premises). Plaintiff leased the premises beginning on July 1, 1985, pursuant to a written lease, as extended and modified, between plaintiff, as successor in interest to Furniture for Living, Inc. and F.L.F. Furniture, Inc., as the tenant, and Sovereign, as successor in interest to Independence Community Bank (Independence), as the landlord. The premises consisted of a first floor store front, a basement, and the entire second floor. Sovereign's bank branch abutted plaintiff's storefront and basement and shared a common roof with the premises.
Beginning on or about May 2003, the roof of the premises began to deteriorate, and allegedly resulted in multiple water leaks. In June 2006, Independence retained an architectural firm, Landy Verderame Arianna Architects (LVA Architects), to prepare drawings/specifications for it to use for a total roof replacement project. LVA Architects' "general notes" on one of these drawings stated:
"The Existing Flashing is an asbestos containing material. The owner has contracted separately with an abatement contractor. GC to coordinate the work of the abatement contractor and schedule phasing as required to perform the roof replacement."
In July 2006, AA Services, LLC (AA Services) conducted an asbestos investigation of the premises, and took samples of the roof, flashing materials at the roof level, and interior plaster on the first and second floors. A July 5, 2006 letter, addressed to LVA Architects, set forth the AmeriSci laboratory results, which were that no asbestos was detected in the roof material samples or the interior plaster samples, but that 10.5% chrysotile asbestos was detected in the roof flashing materials.
On August 31, 2006, plaintiff filed an action against Independence (under index No. 26334/06) (the 2006 action), claiming that it sustained damages due to the water intrusion into the premises because of the deteriorating roof. By stipulation so-ordered by the court on November 1, 2007, Sovereign was substituted for Independence as its successor in interest, and the 2006 action is still pending. In the 2006 action, Sovereign, on November 9, 2006, moved, by order to show cause, for an order directing plaintiff to give it access to the premises. By order dated December 1, 2006, the court granted Sovereign's motion, giving Sovereign access to the premises "for the purposes of installing a new roof, repairing a first floor ceiling crack, and protecting plaintiff's property during the work."
In December 2006, plaintiff retained Landmark Consultants, Inc. (Landmark) to perform an on site asbestos inspection of the roof and take roofing samples to determine if there was asbestos in the roof materials and flashing. By a written report dated December 27, 2006 regarding an asbestos inspection on December 24, 2006 of the premises, Landmark concluded:
"Based on the laboratory results, the roof membrane and the roof flashing is Asbestos Containing Materials (ACM) and, if need be, can only be disturbed by a NYSDOL licensed Asbestos Handler. Due to the nature of Landmark's findings, we recommend that the confirmed and assumed ACM locations are to be abated by a professional asbestos abatement contractor before any future work is done on this property. Given the current condition of this building, Landmark also recommends that any area that could not be sampled should be treated as ACM, and to also take into consideration what may be beneath the subsurface, i.e.: old pipe chases, transite boards, electrical wiring, etc. Abatement activities should be monitored by a Third Party air monitor. If there are any abatement/construction activities on the roof, the floor immediately below the roof could be affected by the ACM. So, we recommend removal of the furniture from 2nd floor before any abatement/construction activities take place on the roof. After furniture is removed from 2nd Floor, plasticize 2nd floor to prevent any accidental contamination of the floor below."
Annexed to Landmark's December 27, 2006 report are the Laboratory Results from Ameri Sci, which list asbestos present at the bulkhead, flashing north, flashing south, flashing east, flashing west, east of roof, and middle east, as found in roof samples. No asbestos was found in the samples of the ceiling on the second floor. Sovereign was provided with a copy of the Landmark report on January 8, 2007.
By a letter agreement dated December 1, 2006, New Color Brush, Inc. (New Color), which is a painting and wood refinishing company, as a general contractor, set forth its proposal to perform the installation of the new roof, oversee the sequencing of the work, and handle submissions of various documents pertaining to the project for the sum of $425,000. The letter agreement did not mention asbestos, but provided, in a "Note" at the bottom, that there would be two workers in the leased premises while work on the roof was being done, that all furniture would be photographed, covered, and moved from section to section, and that Frank Leone of plaintiff would be kept abreast of all work being done. The letter agreement was executed by John Cambio of New Color, and was accepted and executed by Sovereign's representative and construction manager, Joseph Barri, on January 5, 2007.
By letter dated January 4, 2007, plaintiff's former counsel demanded that Sovereign "cease and desist" from making repairs to the premises because of asbestos, claiming that there were "significant levels of asbestos throughout the building," and that Sovereign cannot "perform any work until all evidence of asbestos has been completely removed."
On January 16, 2007, AA Services conducted additional testing pursuant to Mr. Barri's request to "determine if asbestos [wa]s present in the roofing materials." Sampling was conducted from the five locations where it appeared that sampling had been conducted previously, and the sample results for three of the samples indicated that less than one percent asbestos was present, while two samples indicated the presence of chrysotile asbestos at 1.6%. AA Services advised Mr. Barri that if renovations were undertaken which would disturb the roofing materials, they must be removed by a licensed abatement contractor prior to commencement of the activities.
On January 23, 2007, AA Services provided Mr. Barri with a summary of its asbestos inspections, and the samples that had been taken on both July 2, 2006 and January 16, 2007. The last page of the report concluded:
"While it is possible that asbestos may be present in the rubber membrane, it is more likely that asbestos is present in flashing/tar materials which were used to seal the seams and edges, and to adhere the membrane to the substrate. It is also possible that materials which were used to make repairs may have contained asbestos. If roofing materials are to be disturbed, they should be handled by a licensed abatement contractor in accordance with applicable regulations."
In a letter by New Color dated April 24, 2007, signed by John Cambio of New Color, after a meeting with Sovereign's representatives, New Color's responsibilities as the general contractor were more particularized. This letter stated that the start date for the replacement of the complete roof would be May 1, 2007, and provided that New Color, among other things, would "work with the asbestos abatement contractor to remove the asbestos they have located and marked," would "cover all furniture on the sections where the roof is being repaired with Mr. Leone's employees to protect the furniture as best as possible," and would "keep an employee in the building below the sections being repaired for additional precautions." New Color subcontracted the installation of the new roof to Bensonhurst Construction Corp. (Bensonhurst), a roofing contractor.
ABF is a licensed asbestos abatement contractor. In May or June 2007, ABF's owner and operations manager, Martin Bielawski, went up to the roof to evaluate it. Thereafter, ABF applied to the New York City Department of Environmental Protection (the DEP) for a variance because of the particular type of flashing abatement involved, i.e., the tar on the flashing was higher than 20 inches. ABF also filed a Project Notification and filled out an ACP 7 form, which, according to Mr. Bielawski, is the City permit to perform the work (Mr. Bielawski's Dep. Transcript at 53-54). Between May 10 and May 30, 2007, Mr. Bielawski went back to review the roof, and, at that point, he gave Mr. Barri a quote for the removal of the entire roof (as opposed to just the roof flashing), and the scope of the work was increased to 10,800 square feet.
By a contract dated June 26, 2007, entered into between Sovereign and ABF, ABF agreed to obtain all work permits, pay all filing fees, obtain insurance, and perform the removal and disposal of "all ACM flashing, ACM tar and 10,000 square ft build up ACRM from the roof" of the premises for the sum of $73,600. Sovereign was required to hire a laboratory to perform air monitoring before, during, and after the abatement project at no cost to ABF, and ABF recommended Parker House Services (Parker) as the air monitoring company. In July 2007, New Color hired Parker to perform the air monitoring for asbestos at the premises.
Before the roof work commenced, plaintiff's furniture on the second floor was covered with plastic by New Color. According to Frank Leone, Jr., plaintiff's vice-president, plastic was draped over some, but not all of plaintiff's inventory. Mr. Leone, Jr., in an affidavit by him, states that the plastic drop cloths utilized were insufficient in size to completely cover large pieces of furniture on display at the second floor, and that none of the drop cloths were shrink wrapped tight to the furniture or taped in place, but were, instead, only draped over some of the inventory. Mr. Leone, Jr. further states that there was no protective covering of any kind on the carpet or walls. He also asserts that furniture displays were relocated and stacked haphazardly by Sovereign and its contractors, and it appeared to him that this was done to enable the workers to move freely under the ceiling and roof, rather than to protect plaintiff's inventory.
The roof replacement work commenced on August 16, 2007. ABF first set up a "decontamination unit" on the roof. After Mr. Bielawski was given access to the second floor by plaintiff, he opened the drop ceiling on the second floor. Although Mr. Bielawski claims not to have observed any asbestos when he did this, he nonetheless decided to erect a "critical barrier" with "6 mil poly each layer 6 mil poly, good tape, tied to the pipes in case to prevent any collapse of the roof with ACM" (Mr. Bielawski's Dep. Transcript at 161-162). According to Mr. Bielawski, the asbestos in the roofing materials was sealed in the tar, so that removal of the asbestos from above would not penetrate downstairs (Id. at 173), and the two layered plastic barrier below the second floor ceiling was not required and did not require notification to the DEP, but, rather, was ABF's idea as an additional precaution in order to protect plaintiff (Id. at 166-167, 214).
The placement of the plastic barrier was provided for in a contract dated August 17, 2007 between Sovereign and ABF. Specifically, Sovereign agreed to pay ABF an additional sum of $15,700 for the following work by ABF:
"ABF will plasticize and seal entire drop ceiling with two layers of 6 mil poly located on the 2nd floor of the [leased premises]. In addition, ABF will take the plastic protection down and [perform] HEPA vacuuming [of] all drop ceiling when the abatement will be completed."
According to Jose Jiminez, a New York State Certified Air Sampling Technician and Project Monitor employed by Parker, Parker performed air monitoring on the second floor during the abatement project commencing on August 18, 2007 and ending on October 5, 2007, and daily air samples were collected and tested, and found to be safe and within acceptable limits under federal, state, and local regulations, as reflected in Air Sample Analysis Reports. Mr. Jiminez, in an affidavit by him submitted in the 2006 action, attests to the fact that throughout the project, ABF maintained the plastic sheeting below the drop ceiling, and that he inspected it and found it to be properly installed. He further attests that after the abatement and roof work were completed and during and after the breakdown and removal of protective materials on the second floor, ABF and New Color cleaned and HEPA vacuumed the entire area and that air monitoring samples tested safe at that time.
New Color did not physically handle the roofing materials containing asbestos. According to Mr. Cambio, if New Color did not agree with the way that ABF was removing the debris, it was New Color's responsibility to inform Sovereign (Mr. Cambio's Dep. Transcript at 229). Mr. Bielawski, testified, at his deposition, that ABF reported to Mr. Cambio all the time, and was ABF's "leader" (Mr. Bielawski's Dep. Transcript at 328, 358).
By September 17, 2007, all of the former roofing materials were removed by ABF, but ABF still maintained the ceiling barrier on the second floor. On September 18, 2007, ABF started the "break down" of the "critical barrier." The ceiling barrier was removed in stages, and took about three to four days to remove (Id. at 257-258).
The ceiling barrier was not completely removed and ABF was in the midst of working, which included the taking down of the remaining portion of the ceiling barrier on October 4, 2007, when John Paciulli of Insight Environmental (Insight), who was hired by plaintiff, visited the premises (Id. at 258, 261-262, 351-352). Plaintiff allegedly hired Insight because it suspected asbestos contamination at the second floor of the premises.
As set forth in Insight's report dated October 16, 2007 and Mr. Paciulli's affidavit, Insight's visual inspection of the second floor ceiling cavity (above the drop ceiling) revealed roof field membrane and granular tar debris throughout, and areas that had already been "decontaminated" by ACF "contained less, but still readily observable debris, than those areas that had not yet been decontaminated." Insight's report stated that "roofing debris was readily observable throughout areas of the second floor that had not been covered by the drop cloths and on furniture throughout." Insight found that engineering controls were absent, no critical or isolation barriers were observed, and that work practices were improper.
With respect to posted work permits, Insight observed an ACP 7 form, which is used to notify the DEP of an impending asbestos abatement project. The ACP 7 form showed that ABF had obtained a variance for the removal of only 800 square feet of asbestos containing material, which, Insight states, understated the material quantity by approximately 9,200 feet. Insight also observed an ACP 5 form, which is used to notify the DEP that a construction or renovation activity is "Not an Asbestos Project." This form indicated the removal of 10,000 square feet of built-up roofing. Insight found that there was a conflict between these two forms.
Insight conducted bulk debris sampling and sampling of non-porous surfaces and porous surfaces throughout the second floor. Two percent chrysotile asbestos was detected in one of the two bulk samples. Four of the five samples collected from porous furniture and unprotected carpeting detected chrysotile asbestos. The highest concentration detected was 11,734,795 asbestos structures per 100 square centimeters, which indicated contamination of porous surfaces. No asbestos was detected in any of the samples of non-porous surfaces. Insight's October 16, 2007 report concluded:
"We observed multiple flagrant violations of applicable local, state and federal law on [the] part of the asbestos abatement contractor and at least one on [the] part of the designated air sampling firm, Parker . . . We have confirmed that asbestos removed from the roof fell through the wood roof decking, and contaminated the ceiling cavity. We have confirmed that the lack of engineering controls and work practices employed by the abatement contractor were insufficient to control visible emissions of asbestos containing debris and that minimally porous surfaces have been contaminated with asbestos as a result."
Mr. Paciulli states that immediately following the field investigation, Insight notified the DEP, and it received verbal confirmation that the DEP had responded the day following its inspection. However, no violations or warnings were ever issued, and no written report of an inspection by the DEP on that date has been submitted.
As of October 5, 2007, the ceiling barrier on the second floor was completely removed and all abatement work was completed by ABF. When ABF left the premises on October 5, 2007, all air testing results, as obtained by Parker, were negative for asbestos.
On August 13, 2008, ten months after the roof work was completed, the DEP received a complaint regarding the premises, and a DEP inspector, Dinesh Shah (Inspector Shah), was assigned to the complaint. Inspector Shah arrived unannounced within an hour of the DEP's receipt of the complaint, and visually inspected the second floor of the premises, and found "No Violation" (Inspector Shah's Dep. Transcript at 17). The next day, Inspector Shah told his supervisor that he did not observe any suspect ACM (Id. at 44).
Due to a second complaint made by plaintiff to the DEP, on August 20, 2008, one week after Inspector Shah's inspection, another DEP inspector, Inspector Rajeshwar Harilall (Inspector Harilall) went to the premises and conducted an inspection of the second floor of the premises. Inspector Harilall observed "white fibrous material" on furniture and parts of the floor (Inspector Harillal's Dep. Transcript at 34-35), but did not observe any black roofing debris (Id. at 168). Inspector Harilall's August 20, 2008 written report states:
"No suspect in placed ACM was observed in the vicinity of the debris or on the 2nd floor. No source of the suspect ACM debris could have been observed at the site. Three bulk samples of the suspect ACM (white fibrous insulation) were collected for laboratory analysis. We proceeded to the right side of the floor. No suspect ACM debris was observed on the floor or on the furniture . . ."
Inspector Harilall did not observe any roofing debris, which is black and not considered fibrous, in any location (Id. at 37-38), and the white debris he observed was fibrous (Id. at 132). Inspector Harilall found no source for the white ACM (Id. at 45). On August 21, 2008, the laboratory results for the three sample indicated that they were all white, homogenous, and positive for asbestos (Id. at 58-59). No violation was issued because the complaint about roofing material did not match what Inspector Harilall had found and he did not recognize the source of the ACM (Id. at 61-62). On August 21, 2008, Inspector Hariall returned to the premises with his supervisor, Inspector Plumbtre, for a follow-up inspection, and Inspector Harilall observed white debris in locations that did not have such debris on August 20, 2008. Inspector Harilall's report concerning his August 21, 2008 inspection states:
"[M]ore locations were observed with the suspect ACM debris on the floor than the previous inspection on 8/20/08. . . Suspect ACM debris was observed on the floor and furniture. No suspect ACM debris was observed at this location on my previous visit on 8/20/08."
Photographs were taken, and Inspector Harilall posted an asbestos hazards warning on the door to the second floor and contacted Sovereign, but the DEP did not issue any violations. On September 3, 2008, the clean-up of the ACM, as directed by the DEP, was begun, and, on September 5, 2008, Inspector Harillall returned for a follow-up visit, and the clean-up of the ACM had been completed.
According to plaintiff, due to the asbestos contamination at the premises, it could not physically occupy the entire second floor of the premises because to do so would expose its customers and employees to asbestos contamination. Plaintiff also claims that it could not utilize the entire leased premises to effectively showcase and sell furniture and accessories, and that the asbestos contamination of the second floor effectively closed its carpet department (which had been kept on the second floor) to its customers, and crippled the vital flow of inventory into and out of the store because its warehouse (which had been kept on the second floor) was rendered inaccessible. Plaintiff states that due to Sovereign's failure to clear the premises of the asbestos contamination so as to restore unfettered access and beneficial use of the entire premises, it was unable to meet its rent obligations to Sovereign. By a judgment dated May 10, 2010 (well over two years after ABF concluded its abatement work on October 5, 2007) in a Civil Court proceeding brought by Sovereign against plaintiff, plaintiff was evicted from the premises for non-payment of rent, and it vacated the premises on June 1, 2010.
PROCEDURAL HISTORY
On November 1, 2007, by a filing of a summons with notice, plaintiff commenced this action against Sovereign, New Color, Nu Color, Inc. (another general contractor allegedly hired by Sovereign whose president is John Cambio), John Cambio, and ABF. Plaintiff filed its complaint on January 11, 2008. On May 19, 2008, a third-party action was commenced (under index No. 75451/08) by John Cambio, New Color, and Nu Color, Inc. against Bensonhurst. Plaintiff filed a supplemental summons (adding Bensonhurst as a defendant) and an amended verified complaint dated February 3, 2009, which contains 13 causes of action.
Plaintiff's amended complaint seeks, among other things, monetary damages as against defendants due to alleged negligence and constructive eviction arising from the alleged asbestos contamination of the second floor of the demised premises. Plaintiff's first, second, third, fourth, fifth, and sixth causes of action allege negligence as against Sovereign, New Color, Nu Color, Mr. Cambio, ABF, and Bensonhurst, respectively. Plaintiff's seventh cause of action alleges a claim of constructive eviction and breach of the covenant of quiet enjoyment as against Sovereign, and its eighth cause of action seeks declaratory relief regarding rent payments. Plaintiff's ninth, tenth, eleventh, twelfth, and thirteenth causes of action allege intentional interference with its rightful use and enjoyment of the premises by New Color, Nu Color, Mr. Cambio, ABF, and Bensonhurst, respectively.
Issue was joined by defendants by service of their respective answers. Sovereign's answer includes a first cross claim against ABF for full indemnification and/or contribution. On April 6, 2009, ABF answered Sovereign's cross claim by general denying its allegations. Depositions have been held and discovery has been completed. On June 3, 2011, plaintiff filed its note of issue and certificate of readiness.
By a stipulation of discontinuance dated June 8, 2011 and filed on June 27, 2011, plaintiff settled and discontinued its action, with prejudice, as against ABF (resulting in the discontinuance of plaintiff's fifth and twelfth causes of action). By a stipulation of discontinuance filed on June 27, 2011, plaintiff voluntarily discontinued this action, with prejudice, as against Bensonhurst, and the third-party action and asserted cross claims as against it were also discontinued, with prejudice, as against Bensonhurst (resulting in the discontinuance of plaintiff's sixth and thirteenth causes of action).
DISCUSSION
Sovereign's Motion As To Plaintiff's First Cause of Action
In support of its instant motion, Sovereign argues that plaintiff has no evidence that as of October 5, 2007, when all work was completed, the second floor of the premises was contaminated with roofing asbestos. It claims that plaintiff should have waited until all of the clean-up work was completed before taking samples on the second floor, or that plaintiff should have taken additional samples after October 5, 2007 to determine if asbestos was still present after the clean-up work was completed. It contends that since plaintiff did not take any samples after the project was completed, it lacks evidence to support its allegation that there was asbestos on the second floor after the roofing project concluded, and that this requires dismissal of plaintiff's amended complaint.
Sovereign has submitted the expert affidavit of Jennifer Brown Ellis, a technical director of an environmental consulting firm, who concludes that there is no analytical documentation that the second floor of the premises was contaminated by roofing ACM on or after October 5, 2007. Sovereign also relies upon the fact that the DOH inspectors did not observe any roofing debris or materials during their inspections. Sovereign further points out that Mr. Bielawski claims that he never observed any type of asbestos that was not consistent with black roof or roof flashing material (Mr. Bielawski's Dep. Transcript at244).
In opposition to Sovereign's motion, however, plaintiff has submitted the sworn expert affidavit of John Paciulli of Insight, wherein he asserts that two percent chrysotile asbestos was detected in one of the two bulk samples and four of the five samples collected from porous furniture and unprotected carpeting detected chrysotile asbestos. Thus, plaintiff, by submitting the sworn expert affidavit of Mr. Paciulli of Insight, has submitted evidence that asbestos containing debris from the roof replacement work entered the second floor of its demised premises and that minimally porous surfaces therein were contaminated with asbestos as a result.
Sovereign's assertion that there are no lab reports indicating that any of the dust samples tested positive for asbestos is belied by the lab report submitted by Mr. Paciulli, on behalf of plaintiff, in opposition to Sovereign's motion. While Sovereign relies upon the fact that Mr. Paciulli's original affidavit and the Insight report dated October 16, 2007, which were served on it in December 2007, had inadvertently (allegedly due to a copying error) failed to annex analytical documentation for his findings of asbestos contamination, he has proffered a supplemental affidavit dated July 26, 2011, explaining this omission and annexing the supporting analytical documentation, which reflects all 14 samples that were taken from the premises. Although Sovereign argues that plaintiff should not be permitted to correct this omission at this time, Sovereign has not been prejudiced in any way by such omission since Mr. Paciulli had fully and accurately described and discussed the samples in the body of the October 16, 2007 Insight report and in his earlier affidavit.
In addressing Mr. Paciulli's expert affidavit, Ms. Ellis asserts that any contamination that the ACM, which was found by Mr. Pacuilli in one of the two bulk samples, may have caused on October 4, 2007 would have been readily remediated by physically removing it and HEPA vacuuming the area within which it was in contact. Plaintiff, in response, asserts that there is no proffer by Sovereign that conclusively proves that ABF did, in fact, HEPA vacuum the entire second floor, including plaintiff's furniture and carpeting after cessation of the work at the premises.
While Jose Jiminez, in his affidavit (as noted above), stated that ABF and New Color cleaned and HEPA vacuumed the entire area, Mr. Cambio testified, at his deposition, that New Color did not vacuum (Mr. Cambio's Dep. Transcript at 175, 186). Mr. Bielawski, however, testified, at his deposition, that ABF "use[d] a HEPA vacuum to vacuum all the debris which [was] left around the removed area" (Mr. Bielawski's Dep. Transcript at 213), and when asked if ABF HEPA vacuumed the entire second floor, he responded that ABF HEPA vacuumed the carpet (Id. at 336-337).
Plaintiff, however, points out that ABF's contract with Sovereign required ABF to vacuum only the drop ceiling tiles after the abatement was completed. Mr. Paciulli and Mr. Leone, Jr. assert that they observed only the ceiling tiles of the drop ceiling being HEPA vacuumed. Thus, issues of fact and credibility are raised.
Ms. Ellis, in her expert affidavit, also points to the fact that Mr. Pacuilli's observations took place before October 5, 2007. However, the fact that Mr. Paciulli obtained positive asbestos findings from the interior of the premises, and, more specifically, from plaintiff's furniture and carpet located therein, raises issues of fact regarding whether the asbestos control measures were sufficient. Plaintiff notes that if the critical barrier were effective, there should have been no asbestos detected at any time in the porous surfaces and the carpet in the interior of the premises. In this regard, Mr. Bielawski testified, at his deposition, that if the critical barriers had worked, there would not be any asbestos particulate on the furniture and the floor of the second floor (Mr. Bielawski's Dep. Transcript at 261).
Moreover, testing of the porous surfaces was not conducted by Sovereign after October 4, 2007 so as to contradict Mr. Paciulli's findings of asbestos contamination of porous surfaces, including the furniture and carpeting. Notably, the area on the second floor was comprised of a substantial area of 10,000 square feet with wall to wall carpeting and furniture displays, inventory, and accessories. Thus, while Sovereign argues that Mr. Paciulli's inspection was prematurely conducted prior to the completion of the clean up, the fact that Mr. Paciulli and Insight found asbestos merely one day before the completion of the asbestos abatement raises issues of fact as to whether all ACM debris was, in fact, cleaned up one day after Insight's inspection.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and thus summary judgment should only be granted when there is no doubt as to the absence of triable issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Kolivas v Kirchoff, 14 AD3d 493, 493 [2005]). The court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 AD3d 683, 685 [2009]; see also Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Moreover, " [a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense'" (Mennerich v Esposito, 4 AD3d 399, 400 [2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]).
Furthermore, the parties' competing contentions are viewed in the light most favorable to the party opposing the motion (see Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [1990]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002]; see also Baker v D.J. Stapleton, Inc., 43 AD3d 839, 839 [2007]).
Consequently, in view of the existence of material and triable issues of fact as to the presence of asbestos at the premises and whether the asbestos abatement was negligently performed, Sovereign's motion, insofar as it seeks summary judgment dismissing plaintiff's first cause of action as against it, must be denied.
Plaintiff's Motion
Plaintiff argues that it is entitled to summary judgment in its favor as against Sovereign. It contends that Sovereign had actual knowledge of the ACM in the roof and roofing components at the premises prior to engaging ABF to perform the abatement of the ACM, but nevertheless permitted the premises to become contaminated with asbestos, and that this was in breach of its nondelegable duty to comply with the law in conducting asbestos abatement activities.
Administrative Code of the City of New York § 24-141 states that "[n]o person shall cause or permit the emission of air contaminant [containing asbestos]. . . if the air contaminant . . . may cause damage to property or business." With the authority of this provision, the DEP promulgated the City's "Asbestos Control Program" (15 RCNY 1-01 et seq.), which sets forth the standards and requirements for performing asbestos abatement activities in the City. Title 15, Chapter 1 of the Rules of the City of New York (in force in 2007, when the abatement took place) (Title 15) provides, in § 1-01, which is entitled "Scope and Application," as follows:
"(a) The following asbestos control program regulations, 1-01 et seq, shall apply to all asbestos abatement activities occurring within the City of New York.
"(b) Every owner of a building where asbestos abatement activity occurs shall be responsible for the performance of the asbestos abatement activities by his/her agent, contractor, employee, or other representative."
Sovereign argues that Title 15 does not apply to the second floor of the premises because the work performed on the second floor was not an asbestos abatement activity. It asserts that the roof project concerned the abatement of asbestos contained in the roofing material located on the roof, and that there was no work performed on the second floor other than the installation of the plastic ceiling barrier and covering of furniture with plastic.
This argument is rejected. The written June 26, 2007 contract between ABF and Sovereign was for asbestos abatement at the premises, and the August 17, 2007 contract between them required ABF to seal the entire drop ceiling located on the second floor, as opposed to only working on the roof. Moreover, the application for the variance and the variance were granted pursuant to Title 15.
Sovereign also asserts that Mr. Bielawski testified that the second floor plastic barrier that ABF erected was not required by law, and that the DEP did not have to be notified about it (Mr. Bielawski's Dep. Transcript at 166-167, 314). However, Mr. Bielawski testified that Title 15 was applicable to the subject roof replacement (Id. at 80-82). Mr. Paciulli also stated that he observed violations of Title 15, thereby attesting to its applicability to the work at the premises.
Plaintiff points out that according to Insight's October 17, 2007 report and the sworn affidavit of Mr. Paciulli, Sovereign failed to comply with Title 15. Specifically, the furniture contents and inventory were not removed from the work area, and the carpeting was left in place, and was not "covered with fire retardant 6-mil plastic sheeting and then 3/8 in. rigid flooring prior to normal plasticizing" in accordance with § 1-81 (h) of Title 15, which requires that this be performed. In addition, in contravention of § 1-81 (i) of Title 15, fixed objects which remained within the work areas were not "enclosed with two layers of fire retardant 6-mil plastic sheeting sealed to protect from recontamination." While the variance dated June 20, 2007 approving Mr. Bielawski's application for a variance, dated May 10, 2007 and filed on May 30, 2007, granted a variance from § 1-81 (j) and (m) of Title 15, it did not grant a variance from § 1-81 (h) and (i).
Plaintiff points out that the letter proposal made by Mr. Bielawski to the DEP, dated May 9, 2007, in connection with the variance application, proposed that "[a]ll moveable objects will be removed from work area." Additionally, at "Attachment FR," which is signed by ABF and made part of the variance approval, it is stated, under the section "Minimum Removal Procedures," as follows:
"Moveable objects shall be removed from the work area, or kept in place and wrapped in one sheet of 6-mil plastic sheeting. Fixed objects including perimeter walls, bulkheads . . . shall be covered in one sheet of plastic."
Plaintiff has submitted a photograph showing that the plastic drop cloths utilized to cover its furniture and inventory was a product called "Film Guard Painter's Plastic" made by the Berry Plastic Corporation, which were comprised of plastic that was only .35 mil. thick. Plaintiff also notes (as discussed above) that ABF had understated the amount of ACM in its variance application. Furthermore, while Mr. Bielawski determined that a critical barrier should be installed at the second floor (Mr. Bielawski's Dep. Transcript at 166), there is a question raised as to whether the isolation barrier installed by ABF adequately sealed off and contained the ACM from the second floor in compliance with Title 15.
Although Title 15 establishes that an owner of a building is responsible for the performance of asbestos abatement activities by its contractor, a violation of this local regulation constitutes merely some evidence to be considered on the question of a defendant's negligence (see Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Elliott v City of New York, 95 NY2d 730, 734 [2001]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522 [1985]; Thomas v Vezza, 29 AD3d 678, 679 [2006]; Posner v New York City Tr. Auth., 27 AD3d 542, 544 [2006]; Schneider v Diallo,14 AD3d 445, 445 [2005]; Cruz v City of New York,13AD3d 254,254 [2004]; Haleemeh M.S. v MRMS Realty Corp., 28 Misc 3d 443, 453 [2010]). In addition, the adequacy of a landlord's efforts to discharge its duty to remedy such condition is to be governed by a standard of reasonableness (see generally Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 645 [1996]). Here, there are triable issues of fact regarding any alleged negligence in the abatement of the asbestos and the reasonableness of Sovereign's efforts to abate the asbestos condition. Furthermore, as noted above, triable issues of fact exist as to the existence of asbestos after the roof repair was concluded, and there are also issues of credibility raised. Thus, plaintiff's motion for summary judgment in its favor must be denied.
Plaintiff's Seventh Cause of Action
Plaintiff's seventh cause of action alleges that Sovereign constructively evicted it and breached the covenant of quiet enjoyment because it was unable to use the second floor of the premises due to the presence of ACM caused by negligent roof replacement. "It is well settled that a commercial tenant may be relieved of its obligation to pay the full amount of rent due where it has been actually or constructively evicted from either the whole or a part of the leasehold" (Johnson v Cabrera, 246 AD2d 578, 578-579 [1998]; see also Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]; Union City Union Suit Co. v Miller, 162 AD2d 101, 102-104 [1990]; Manhattan Mansions v Moe's Pizza, 149 Misc 2d 43, 44 [1990]). A constructive eviction occurs where "the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises" (Barash, 26 NY2d at 83).
However, repairs to leased premises do not constitute a constructive eviction (see Jackson v Westminster House Owners Inc., 24 AD3d 249, 250 [2005]), and plaintiff remained open during the repair period (Mr. Leone, Sr.'s Dep. Transcript at 55). Furthermore, plaintiff's seventh cause of action does not involve the payment of rent, but, rather, plaintiff seeks consequential damages as a result of such alleged constructive eviction, which are duplicative of its first cause of action for negligence. Additionally, plaintiff has already been evicted for non-payment of rent and Sovereign was granted a judgment dated May 10, 2010 by the Civil Court, Kings County, in the Civil Court proceeding, in the amount of $48,371.32, representing plaintiff's unpaid payment obligations under the lease. Such non-payment of rent, pursuant to the terms of the lease, precludes a claim for the breach of the covenant of quiet enjoyment. Thus, dismissal of plaintiff's seventh cause of action is warranted (see CPLR 3212 [b]).
John Cambio's Motion
John Cambio, by his motion, seeks an order dismissing plaintiff's fourth and eleventh causes of action, which allege negligence and nuisance claims, and are directed at him, individually. Plaintiff's fourth cause of action alleges that Mr. Cambio held himself out as a contractor/subcontractor capable of lawfully and competently performing the work at the premises; that he had actual and/or constructive notice of the presence of asbestos in the roof and roofing components and that the maintenance, repairs, and/or replacement of the roof at the premises would require asbestos abatement activity; that he was responsible for the performance of and lawful compliance in connection with any asbestos abatement activity; that he knew plaintiff had valuable material in the premises; and that he negligently failed to take action to abate the asbestos. Plaintiff's eleventh cause of action alleges that Mr. Cambio negligently failed to protect the premises from asbestos contamination, and that, notwithstanding his knowledge of asbestos, he caused, permitted, and/or allowed asbestos to be released into the premises, and intentionally, unreasonably, and substantially interfered with plaintiff's rightful use and enjoyment of the premises.
Mr. Cambio, in his affidavit, asserts that he is the president of New Color, a duly formed corporation, which acted as the general contractor for the work at the premises, and that all business with respect to the premises was conducted through New Color. He states that he had no relationship to the transaction whatsoever on an individual basis and that his presence at meetings, as well as the conversations he had with Frank Leone relating to the subject work at the premises, were on behalf of the corporation, New Color. He points to the fact that letters from Mr. Leone referred to New Color as the company performing the work and to him as "John Cambio of New Color," and asserts that Mr. Leone, thereby, acknowledged his understanding that plaintiff was dealing with a corporation and that he was "from" that corporation.
Mr. Cambio asserts that nothing in the document exchange or depositions has provided any basis to keep him as a defendant in this action. He points to the evidence, obtained through disclosure, that any asbestos contamination at the premises occurred because the containment system implemented by ABF failed and allowed roofing asbestos to permeate the premises. He maintains that the deposition testimony shows that the most which can be claimed against New Color, the entity of which he is the president, would be a failure to properly cover furniture, which is negligence, and that there were no intentional torts committed by him.
It is well settled that " "a corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced"'" (Peguero v 601 Realty Corp., 58 AD3d 556, 558 [2009], quoting Espinosa v Rand, 24 AD3d 102, 102 [2005], quoting American Express Travel Related Servs. Co. v North Atl. Resources, 261 AD2d 310, 311 [1999]; see also W. Joseph McPhillips, Inc. v Ellis, 278 AD2d 682, 684 [2000]). "The commission of a tort' doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, i.e., an affirmative tortious act" (Peguero, 58 AD3d at 559). However, "personal liability cannot be imposed on a corporate officer for nonfeasance, i.e., a failure to act" (id.; see also MLM LLC v Karamouzis, 2 AD3d 161, 161-162 [2003]; Michaels v Lispenard Holding Corp., 11 AD2d 12, 14 [1960]). "Where there is no evidence of independently tortious conduct on the part of [an] individual defendant[], and nothing in the record raises a triable dispute that [such defendant] acted at all times within the scope of [his or her] employment, [such an] individual [is] entitled to summary dismissal of the action" (Mendez v City of New York, 259 AD2d 441, 442 [1999]; see also Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]; Urbach, Kahn & Werlin v 250/PAS Assoc., 176 AD2d 151, 152 [1991]).
Thus, while Mr. Cambio, as a corporate officer, could be held liable to plaintiff if he committed or participated in the commission of a tort, whether or not it was by or for the corporation, New Color (see Aguirre v Paul, 54 AD3d 302, 304 [2008]; Greenway Plaza Off. Park-1 v Metro Constr. Servs., 4 AD3d 328, 329 [2004]), here, Mr. Cambio has shown, by the deposition testimony and affidavits submitted, that there was no personal supervision by him of the asbestos work of ABF nor was he personally involved in any asbestos removal, roof replacement, or other construction work (see Peguero, 58 AD3d at 559; MLM LLC, 2 AD3d at 161-162).
In opposition to Mr. Cambio's motion, plaintiff relies upon the fact that Mr. Cambio had previously moved for dismissal pursuant to CPLR 3211 (a) (7) and (a) (1), which, by order dated November 6, 2009, was denied by the court. Plaintiff argues that since Mr. Cambio was never granted leave to reargue or renew his prior motion, he is without leave to make this motion, and that his motion was conclusively denied by the November 6, 2009 order.
This argument must be rejected. The November 6, 2009 order found Mr. Cambio's motion, insofar as it sought dismissal pursuant to CPLR 3212, to be premature at that juncture, and denied Mr. Cambio's motion, pursuant to CPLR 3212, without prejudice to renew following the conclusion of discovery. Thus, inasmuch as Mr. Cambio's notice of motion now seeks an order dismissing plaintiff's fourth and eleventh causes of action, following the joinder of issue and the conclusion of discovery, it is apparent that this motion is one for summary judgment, which was expressly authorized by the court's November 6, 2009 order. While plaintiff points to the fact that Mr. Cambio cites the standard of review of CPLR 3211 in his supporting papers, such a technical error, in any event, is inconsequential since "the error of mislabeling a CPLR 3212 motion as a CPLR 3211 motion should be disregarded where, as in this case, it did not prejudice the opponent of the motion" (Schultz v Estate of Sloan, 20 AD3d 520, 520 [2005]; see also Hertz Corp. v Luken, 126 AD2d 446, 449 [1987]).
Despite plaintiff's completion of discovery, it merely relies upon the allegations of paragraphs 68, 76, and 137 of its complaint, which (as noted above) allege, respectively, that Mr. Cambio held himself out as a contractor/subcontractor capable of lawfully and competently performing the work at the premises; that he caused, allowed, and/or permitted asbestos to be released into the premises and to come into contact with his inventory, including furniture and carpets; and that he intentionally, unreasonably, and substantially interfered with his rightful use and enjoyment of the premises. Such bald conclusory assertions, however, are not supported by any evidence of any individual malfeasance on the part of Mr. Cambio (see Peguero, 58 AD3d at 559; MLM LLC, 2 AD3d at 161-162).
It is well established that it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare, and reveal [its affirmative] proof in order to establish that the matters set forth in [its answer] are real and capable of being established at a trial" (Castro v Liberty Bus Co., 79 AD2d 1014, 1015 [1981]; see also Fallon v Berney, 189 AD2d 1028, 1031 [1993]; Di Sabato v Soffes, 9 AD2d 297, 301 [1959]). Thus, in order to defeat a prima facie showing of entitlement to relief, the opposing party must lay bare, in evidentiary form, the evidence upon which it relies; bald and broad conclusory assertions are insufficient (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342—343 [1974]; Blankman v Incorporated Vil. of Sands Point, 249 AD2d 349, 350 [1998]; Denton Publs. v Lilledahl, 112 AD2d 658, 658—659 [1985]).
Plaintiff also continues to rely upon its same reply to the first set of interrogatories, wherein it stated, upon information and belief, that Mr. Cambio exercised complete dominion and control over New Color, that said dominion and control was used to commit a fraud and/or wrong against it, that Mr. Cambio acted outside of New Color's certificate of incorporation and bylaws when he made verbal and/or written representations regarding asbestos abatement, and that Mr. Cambio made repeated misrepresentations to it regarding what steps would be undertaken with respect to asbestos abatement and the requisite prophylactic measures. Plaintiff, however, has failed to support these allegations with any evidentiary facts.
In fact, Mr. Leone, Sr. testified, at his deposition, that he did not remember meeting with Mr. Cambio regarding the repair or the replacement of the roof or having any conversations with him regarding such repair and replacement (Mr. Leone, Sr.'s Dep. Transcript at 45, 92-94). Mr. Leone, Sr. further testified that he did not remember any statement that he heard Mr. Cambio make regarding the roof repair job at the premises that he thought was false, or any statement by Mr. Cambio made to him or anybody else in his presence regarding the roof repair work (Id. at 70, 77-78). Mr. Leone, Sr. also admitted that he had no contact with Mr. Cambio during the roof replacement work (Id. at 167). In addition, Mr. Leone, Jr. testified, at his deposition, that he did not have any conversations with Mr. Cambio during the time the roof replacement work was being performed (Mr. Leone, Jr.'s Dep. Transcript at 104-105).
Plaintiff also relies upon Sovereign's attorney's affirmation, which asserted that Mr. Cambio was the general contractor or the "middle man," that Bensonhurst answered to Mr. Cambio, and that ABF reported to Mr. Cambio because he was ABF's "leader." However, Mr. Cambio has submitted the affidavit of Peter Nicchitta, the principal of Bensonhurst, who attests that Bensonhurst was retained by New Color, that the contract was in the name of New Color, and that checks to Bensonhurst were issued by New Color. Furthermore, Mr. Nicchitta explains that the coordination of the work involved him, as the representative of Bensonhurst, calling Mr. Cambio, as the representative of New Color, who, he presumed, would call someone at ABF and/or Mr. Leone. Thus, there is no showing that Mr. Cambio acted in an individual capacity, and, in any event, plaintiff has not pointed to any affirmative act of negligence on the part of Mr. Cambio (see MLM LLC, 2 AD3d at 161-162).
Plaintiff argues, however, that Mr. Cambio violated the mandates of Title 15. Specifically, plaintiff relies upon Title 15, at § 1-11, which states:
"(a) No individual shall engage in an asbestos project or in asbestos abatement activities on a minor project, for compensation, unless that individual is certified as an asbestos handler by the department and has an Asbestos Handler Certificate' issued by the department which shall be posted in the clean room."
Such reliance is misplaced. There is no evidence obtained from any of the depositions held and other discovery that Mr. Cambio, in any way, handled asbestos. Rather, such evidence shows that Mr. Cambio's involvement was limited to acting on behalf of New Color, which itself only performed as a general contractor, coordinating the work. While New Color's employees placed plastic drop cloths at the premises, this was not performed individually or in a personal capacity by Mr. Cambio. Therefore, there was no need for Mr. Cambio to have such a license.
Additionally, plaintiff points to Title 15, § 1-13, which provides that the department shall issue a restricted asbestos handler certificate for "individuals involved in the construction of the containment barriers of a work area (e.g., carpenters), or who otherwise enter the contained work area for a limited period of time to perform certain specialized tasks in preparation for, or ancillary to, the actual abatement (e.g., electricians); and for whom asbestos handler certification would otherwise be required." Plaintiff argues that this section prohibited the preparatory and ancillary actions taken by Mr. Cambio without the issuance of a "Restricted Asbestos Handler Certificate." This argument is rejected. There is no evidence that Mr. Cambio was involved in the construction of a containment barrier or any specialized tasks in preparation for, or ancillary to, the actual abatement for which an asbestos handler certification would otherwise be required.
Plaintiff also points to Title 15, § 1-14 (a), which provides that "[n]o individual shall supervise asbestos handlers engaged in an asbestos project, for compensation, unless that individual is certified as an asbestos handler supervisor by the department." Plaintiff argues that this section prohibited Mr. Cambio from supervising asbestos handlers. Such argument is unavailing as there is no evidence that Mr. Cambio personally supervised ABF with respect to its handling of asbestos. Thus, inasmuch as there is no showing of any tort committed by Mr. Cambio nor any violation of any municipal law upon which liability could be predicated, he is entitled to summary judgment dismissing plaintiff's complaint as against him (see CPLR 3212 [b]).
Sovereign's Cross Claim Against ABF
Sovereign further argues that even if there is evidence of asbestos contamination caused by roofing materials, it is entitled to summary judgment on its cross claim for full common-law indemnification as against ABF, as the licensed asbestos abatement contractor that it hired to abate any asbestos contained in the roofing materials, with respect to all alleged damages caused by the alleged asbestos contamination. Sovereign points out that plaintiff's first cause of action against it alleges negligence and violations of law that are identical to the allegations asserted against ABF in plaintiff's fifth cause of action. Sovereign argues that the claims against it are asserted only vicariously because it did not physically perform any of the roof work itself and because plaintiff's claims as against it are predicated on its status as the owner of the premises, as opposed to any active negligence on its part.
"Common-law indemnification is generally available in favor of one who is held responsible solely by operation of law because of [its] relation to the actual wrongdoer'" (McCarthy v Turner Constr., Inc.,17 NY3d 369, 375 [2011], quoting Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]). "Consistent with the equitable underpinnings of common-law indemnification, our case law imposes indemnification obligations upon those actively at fault in bringing about the injury, and thus reflects an inherent fairness as to which party should be held liable for indemnity" (McCarthy, 17 NY3d at 375; see also Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 6-7 [1974]).
Sovereign points out that its contract with ABF to perform the asbestos abatement of the entire roof could only be performed by ABF, as a licensed abatement contractor, which had exclusive control over the roofing materials until its work was completed on October 5, 2007. As noted above, ABF also had a separate contract with Sovereign under which it was specifically required to erect the plastic barrier on the second floor and HEPA vacuum it after the roof was installed. While Sovereign, as the property owner, had an obligation to plaintiff that was nondelegable and it cannot avoid liability to plaintiff no matter how extensively it delegated its responsibility to ABF because Title 15 had the effect of imputing to it the negligence of any delegate insofar as plaintiff's rights to recover were concerned, Sovereign had the right, under its contracts with ABF, to look to ABF to perform its duty to plaintiff.
The issue of obtaining indemnification from a contractor where a property owner has a nondelegable duty with respect to the maintenance of property was addressed by the Court of Appeals in Rogers v Dorchester Assoc. (32 NY2d 553, 563 [1973]). In Rogers (32 NY2d at 563), the Court of Appeals held that a property owner can look to a party, with whom it maintained a contract to perform work on the premises, to indemnify it for its losses pursuant to proven violations of the Multiple Dwelling Law, even though that law imposes nondelegable duties on the owner to provide reasonably safe premises. Thus, as between Sovereign and ABF, ABF had a contractual obligation to perform its duty of asbestos abatement and if Sovereign is held liable in damages to plaintiff for the breach of this duty, ABF may be held liable to Sovereign for the full amount (see id.; Phillips v Young Men's Christian Assn., 215 AD2d 825, 827 [1995]).
However, in order "[t]o establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters., Ltd.,14 AD3d 681, 684-685 [2005], quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 [1999]).
Here, plaintiff's claims as against Sovereign are predicated on its status as the owner of the premises and its statutory liability pursuant to Title 15. Sovereign maintains that there is no showing of any independent negligence on its part beyond its purely vicarious liability. Since plaintiff is claiming asbestos contamination due to the roofing work and ABF was the party responsible for the abatement of the asbestos in the roofing materials, as well as the protective barrier under the second floor ceiling, these allegations sustain Sovereign's contention that if asbestos contamination is found to have occurred, ABF was guilty of some negligence that contributed to the causation of plaintiff's damages. Moreover, Mr. Bielawski testified, at his deposition, that he was in charge of ABF, and that it was its "sole responsibility" to follow federal, state, and local regulations pertaining to the asbestos abatement (Mr. Bielawski's Dep. Transcript at 256). Therefore, in the absence of any triable issue of fact, Sovereign's liability would completely shift over to ABF, and Sovereign would be entitled to full common-law indemnification as against ABF, as the alleged active tortfeasor responsible for plaintiff's alleged damages.
ABF opposes Sovereign's motion insofar as it seeks summary judgment on its cross claim as against it for full common-law indemnification with respect to all damages alleged by plaintiff arising from its asbestos abatement of roofing materials at the premises and its work on the second floor to protect the contents therein. ABF argues that this motion is premature and that until such time as there has been a finding of liability with respect to Sovereign, Sovereign cannot seek "full indemnification" from it.
This argument is rejected. In the recent case of Hart v Commack Hotel, LLC (85 AD3d 1117, 1118-1119 [2011]), decided on June 28, 2011, where the owners therein were not negligent and any liability on their part would be purely statutory and vicarious, and where the owners also demonstrated that Hart Roofing was hired to replace the roof at their hotel and it had the authority to direct, supervise, and control the means and methods of the roofing work, the Appellate Division, Second Department, did not find a granting of summary judgment to the owners to be premature, but, rather, held that they were entitled to summary judgment on their cause of action for conditional common-law indemnification against Hart Roofing. Thus, Sovereign's motion on its cross claim is not premature, but, instead, may be granted conditionally, as in Hart (85 AD3d at 1118-1119).
ABF argues, however, that the evidence relied upon by Sovereign is not in admissible form because the transcript from Mr. Bielawski's deposition was not forwarded to its attorney's office until July 12, 2011, and it was not received until July 14, 2011, and then it was first forwarded to Mr. Bielawski. It asserts that Mr. Bielawski has not yet had a full and fair opportunity to review, correct, and execute his transcripts of February 10, 2011 and May 3, 2011. It contends that since the transcripts are unsigned and were not forwarded to its counsel for review in compliance with CPLR 3116 (a), they are inadmissible and insufficient to establish Sovereign's entitlement to summary judgment on its cross claim as against it.
This argument is unavailing. Mr. Bielawski has not stated that the testimony quoted by Sovereign from his deposition is in any way inaccurate, no party has challenged the accuracy of the testimony as transcribed, and it was certified as accurate by the court reporter (see Martin v City of New York, 82 AD3d 653, 654 [2011]). Thus, inasmuch as Mr. Bielawski has identified no changes to his deposition testimony that would have been made if he had been given the opportunity, he has failed to show that any prejudice resulted from this procedural irregularity (see Matter of Ventura v Gotham Per Diem, Inc.,14 AD3d 753, 754 [2005]; Heliodore v State of New York, 305 AD2d 708, 709 [2003]). In any event, Sovereign does not rely solely upon Mr. Bielawski's deposition testimony, but has also submitted the contracts between it and ABF.
ABF, in attempting to raise a triable issue of fact as to negligence on the part of Sovereign, relies upon the fact that white, friable asbestos debris found on the second floor of the premises by the DEP in 2008 was not present at the time of the inspection by plaintiff's expert, Insight, in October 2007. ABF also points out that according to the expert affidavit of Sovereign's expert, Jennifer Brown Ellis, such white asbestos debris is not consistent with roofing material which is not friable and is generally black. ABF cites to paragraph 18 of Ms. Ellis' expert affidavit, wherein she opines that the DEP findings do not support the assertions in Mr. Paciulli's affidavit or the Insight report that roofing materials containing ACM fell onto the second floor of the premises during the roof replacement project and contaminated furniture and rugs. ABF contends that Sovereign cannot be entitled to full indemnification from it as its own expert, as well as the DEP witnesses, have concluded that the asbestos identified on the second floor of the premises in August 2008 was not from the roof replacement.
ABF's contention lacks merit. The white asbestos that the DEP found on the second floor in August 2008 cannot bar Sovereign's entitlement to full indemnification from ABF because plaintiff has made no claim as against Sovereign concerning the white asbestos. In fact, plaintiff's counsel unequivocally states that plaintiff has "not sought recovery for white asbestos at any time" and that there "is not a single pleading concerning the white asbestos' in the case at bar."
In further opposition to Sovereign's motion, ABF asserts that Sovereign has admitted that it was aware of the presence of ACM in the existing flashing material on the roof of the premises in June 2006 and that the laboratory test results commissioned by it in late June or early July 2006 had revealed the presence of asbestos in the roof flashing material. ABF further asserts that Sovereign was aware that the roof was leaking at that time, and that by November 2006, Sovereign had moved for an order permitting it to have access to the premises to make interior repairs regarding a first floor ceiling collapse and for the roof replacement project. ABF points out that during that period the roof was leaking extensively and a portion of the interior of the premises collapsed as a result of those leaks. ABF points to allegations made by plaintiff in the 2006 action that on March 21, 2006, there were repetitive water intrusions from the falling roof, which caused a major collapse in the ceiling at the front of the first floor of the premises, and that on April 23, 2006, the repetitive water intrusions from the failing roof caused a second major collapse of the plaster ceiling at the rear of the main showroom on the first floor. ABF argues that the condition of the roof during the period from December 2005 through the commencement of the roof replacement in August 2007 raises a question of fact with respect to the responsibilities of Sovereign and the maintenance and repair of the roof, as well as with respect to potential contamination of the premises by ACM prior to it ever beginning its work.
This argument is rejected. There are no allegations by plaintiff that the premises was contaminated prior to the time that the roof replacement and asbestos abatement was commenced in August 2007. Rather, plaintiff's amended complaint alleges that Sovereign's negligence took place when it caused or permitted the roof at the premises to be replaced, and that this alleged negligence occurred beginning on or about August 16, 2007 and continuing through October 5, 2007, when it allegedly allowed asbestos to be released into the premises and come into contact with its furniture, carpets, and other contents in the premises. Plaintiff's amended complaint in this action does not contain any allegations regarding the alleged water damage to its premises nor does it seek damages occurring prior to the time that the roof replacement was commenced. The water damages claim is, instead, the subject of the 2006 action.
ABF further asserts that Sovereign is not entitled to full indemnification from it because Sovereign, in its answer, has also asserted a cross claim as against New Color, Nu Color, and Mr. Cambio. It maintains that since Sovereign admits that it hired a general contractor whose responsibility it was to oversee the work, make sure that the site was in a safe condition, cover the furniture, and inform it of any problems with the way it was performing its work, there are questions of fact with respect to: the work performed by New Color and its employees during the roof replacement and prior to such replacement with regard to the covering of the furniture; whether New Color complied with its contractual requirements, and, if not, whether that failure contributed to the damages sustained by it; and the adequacy of New Color's work. ABF contends that these questions of fact require denial of Sovereign's motion as a jury must determine the liability of the parties and the percentages of liability, if any.
The apportionment rule, however, applies to those who, in fact, share responsibility for causing the harm, and does not extend further to those who are only vicariously liable, as Sovereign, the owner of a building who contracted with ABF, an independent contractor responsible for the asbestos abatement (see Rogers, 32 NY2d at 563). While ABF cannot be held responsible for any alleged negligence by New Color, this does not preclude Sovereign from obtaining common-law indemnification from ABF for any negligence for which it is held liable and which is not apportioned to New Color.
Thus, since Sovereign has shown that it was not negligent and any liability on its part would be purely statutory and vicarious and ABF has failed to raise a triable issue of fact, Sovereign is entitled to conditional common-law indemnification as against ABF (see Perri, 14 AD3d at 684-685).
CONCLUSION
Accordingly, Sovereign's motion is denied insofar as it seeks summary judgment dismissing plaintiff's first cause of action as against it, and it is granted insofar as it seeks summary judgment dismissing plaintiff's seventh cause of action as against it, and to the extent that it seeks conditional common-law indemnification on its cross claim as against ABF. Plaintiff's motion for summary judgment in its favor on the issue of liability as against Sovereign, is denied. Mr. Cambio's motion for summary judgment dismissing plaintiff's fourth and eleventh causes of action as against him, individually, is granted.
This constitutes the decision and order of the court.
ENTER,
J. S. C.