Opinion
118603/98.
Decided January 6, 2005.
The various motions before the court are resolved as follows:
1)By Joseph P. Day Realty Corp.; Larry Wohl as Executor of the Estate of Joseph S. Wohl; Ronbet Operating Company, Inc.; Ronbet Company; and Ronbet Eighth Avenue, LLC. (jointly referred to herein as the "Owners") for summary judgment dismissing the action as against them, and by plaintiffs for summary judgment against the Owners on liability, are all denied as a triable issue of fact exists as to whether the demolition of the fire damaged building by the Owners' contractor resulted in the improper spoliation of evidence needed by the plaintiffs in order for them to establish their claim of negligence. While the Owners assert that plaintiffs' representatives had sufficient time to investigate the cause of the fire prior to the demolition and that prompt demolition was required by the City, plaintiffs have raised a triable issue with respect to their assertions that the Owners were requested not to demolish the kitchen area of the restaurant and that as a result of the collapse of the ceiling of the restaurant plaintiffs did not have an adequate opportunity to investigate the equipment in the kitchen which they maintain may have caused the fire. The fact that an independent contractor performed the demolition and was told to cooperate with the insurers does not relieve the Owners of their responsibility for the demolition of their building as they had the opportunity and right to determine when the demolition should occur.
2)By third-party defendant Ideal Fire Control, Inc. for summary judgment dismissing the third-party action against it is granted as the Owners have set forth no basis for establishing liability against said movant, which was in no way responsible for the alleged spoliation of evidence. The Owners, as the parties who allegedly destroyed the evidence as to the cause of fire, cannot rely on such evidence to assert a viable claim against this movant.
3)By third-party defendants Welldone Enterprises, Inc. ("Welldone") and Law for summary judgment dismissing the third-party complaint as against them is denied in light of the Appellate Division decision at 301 AD2d 422, which reversed this court's prior grant of summary judgment to said movants.
4)By defendant Hing Fa, Inc. for summary judgment dismissing the complaint as against it is granted on consent (Tr. p. 83), with the cross-claim by the Owners based on contractual indemnity to continue as a third-party action. While there was no motion on behalf of defendants Yu's Chinese Restaurant and Yu Zhi Quang, the plaintiffs agreed to discontinue the action as against said defendants (Tr. p. 84), and the complaint as against them is therefore dismissed.
5)By third-party defendant's Hon Keung Choy, Inc. and Hong Kong Choy Realty Construction Co. for summary judgment is denied as they purportedly designed the interconnection of the duct systems, which systems the aforesaid Appellate Division decision held may have "contributed to the spread of the fire".
6)By the Owners for a conditional order of contractual and common law indemnity is denied as at this stage of the litigation there is no proof of the Owner's entitlement to such relief as against any party.
This decision constitutes the order of the court and the Clerk shall enter judgment in accordance with the foregoing, severing the remaining action.