Opinion
2018–04582 Index No. 704839/14
03-10-2021
Menicucci Villa Cilmi, PLLC, Staten Island, N.Y. (Daniela Guerrero of counsel), for appellant. Sipsas P.C., Astoria, N.Y. (Ioannis [John] P. Sipsas of counsel), for respondents.
Menicucci Villa Cilmi, PLLC, Staten Island, N.Y. (Daniela Guerrero of counsel), for appellant.
Sipsas P.C., Astoria, N.Y. (Ioannis [John] P. Sipsas of counsel), for respondents.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered March 29, 2018. The order denied the defendant's motion for summary judgment dismissing the first and third causes of action.
ORDERED that the order is affirmed, with costs.
The plaintiffs allege that, without their knowledge, a nonparty entered into an agreement with the defendant whereby the defendant agreed to store the plaintiffs' property at its warehouse in exchange for $300 per day. The plaintiffs further allege that the property was thereafter destroyed by Hurricane Sandy while at the defendant's warehouse.
The plaintiffs commenced this action to recover damages for injury to property, alleging negligence in the first cause of action and a breach of the duty of care under UCC § 7–204 in the third cause of action. Thereafter, the defendant moved for summary judgment dismissing the first and third causes of action, which the plaintiffs opposed. The Supreme Court denied the defendant's motion. The defendant appeals.
"It is well established that, absent an agreement to the contrary, the owner of a warehouse is not an insurer of goods" ( Northbrook Prop. & Cas. Ins. Co. v. D.J.L. Warehouse Corp., 160 A.D.2d 917, 917, 554 N.Y.S.2d 644 ; see I.C.C. Metals v. Municipal Warehouse Co., 50 N.Y.2d 657, 662, 431 N.Y.S.2d 372, 409 N.E.2d 849 ). As a bailee, however, an owner of a warehouse is required to exercise reasonable care so as to prevent loss or damage to stored goods (see UCC § 7–204[a] ; I.C.C. Metals v. Municipal Warehouse Co., 50 N.Y.2d at 662, 431 N.Y.S.2d 372, 409 N.E.2d 849 ; Northbrook Prop. & Cas. Ins. Co. v. D.J.L. Warehouse Corp., 160 A.D.2d at 917, 554 N.Y.S.2d 644 ).
Here, the defendant failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. The defendant did not establish that it lacked a duty of care based upon the absence of privity with the plaintiffs because bailees " ‘may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties’ " ( Landon v. Kroll Lab. Specialists, Inc., 91 A.D.3d 79, 83, 934 N.Y.S.2d 183, quoting Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ; see Grace v. Sterling, Grace & Co., 30 A.D.2d 61, 65, 289 N.Y.S.2d 632 ). The defendant also did not establish, prima facie, a lack of causation based upon Hurricane Sandy being an act of God because it did not demonstrate that human activities did not contribute to the loss in any degree (see Priore v. New York City Dept. of Parks & Recreation, 124 A.D.3d 749, 750, 2 N.Y.S.3d 170 ; Fulgum v. Town of Cortlandt, 2 A.D.3d 775, 777, 770 N.Y.S.2d 416 ; Cangialosi v. Hallen Constr. Corp., 282 A.D.2d 565, 566, 723 N.Y.S.2d 387 ). Finally, the defendant failed to demonstrate, prima facie, that the plaintiffs will be unable to recover any damages.
Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiffs' opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the first and third causes of action.
RIVERA, J.P., MILLER, BRATHWAITE NELSON and WOOTEN, JJ., concur.