Opinion
Index No. 610809/2018
03-23-2023
Frank Montagna, DESSIE MONTAGNA, and KATRINA MONTAGNA, Plaintiffs, v. All Good Electric Corp. and JOHN BONO, Defendants.
Unpublished Opinion
Sarika Kapoor, J.
HON. SARIKA KAPOOR, A.J.S.C.
NYSCEF Entries No.58 through #120 were read and considered in deciding this motion.
Briefly, this action was commenced as a result of a fire that occurred on May 9, 2018, at 68 Mineola Avenue, Point Lookout, NY (hereinafter referred to as the "Premises").
Frank Montagna, Dessie Montagna, And Katrina Montagna (collectively referred hereinafter to as "Plaintiffs") rented the Premises from Defendant, John Bono ("Bono"), pursuant to a written lease agreement. Plaintiffs claim that "[p]rior to the fire that occurred on May 9, 2018, there were numerous electrical issues at the premises which plaintiffs brought to the attention of Bono." The alleged electrical issues included, but were not limited to, electrical devices such as a microwave not properly working, lights turning on without prompting, a power surge which "fried" a number of items and a humming and buzzing sound. Plaintiffs claim that as a result of the electrical issues, they were advised by Bono to check the circuit breaker, which they allegedly did-twice. However, Plaintiffs argue that they did not touch, interact with, or energize the circuit at any time after May 3, 2018.
Plaintiffs claim that their permanent residence is located in Long Beach, NY.
Plaintiffs claim that in response to the electrical issues, they and Bono contacted Defendant All Good Electric Corp ("All Good") to inspect and repair the alleged conditions in the house. According to Plaintiffs, on May 8, 2012 - i.e., the eve of the fire - Paul Leone (hereinafter "Leone") who is a licensed electrician and owns All Good, came to the premises to inspect the electrical issues.
In bringing this suit, Plaintiffs submit that the "fire that occurred on May 9, 2018, was due to the acts, omissions and negligence of All Good which caused or permitted an electrical fire to occur that resulted in the total destruction of the house and Plaintiffs' possessions contained therein." Plaintiffs contend that when Leone visited the premises on May 8, 2018, Leone never conducted an inspection of the entire interior or exterior of the home nor did any testing; according, to Plaintiffs, Leone's primary act was to re-energize the circuit before he left the home. Additionally, Plaintiffs contend that, after Leone's first visit on May 8th, due to the continued issues including the refrigerator ceasing to work that evening, Leone returned on May 9, 2018 to continue service. Plaintiffs claim, "it was understood and agreed that All Good would come to the property to locate and repair the short circuit in the wiring." Although Plaintiffs claim that All Good allegedly conceded that there was no negligence, act or omission on the part of Plaintiffs that caused the accident, they offer no citation to support this claim. Plaintiffs submit that the record reflects that the source of the ignition was an electrical failure, to wit; due to a short circuit resulting in arcing and ultimately igniting the fire. Critically, Plaintiffs argue that this was known to All Good.
Specifically, Plaintiffs claim that although Leone testified as to how he "trains" his employees to handle a potential electrical short, neither he nor his employees ever performed any of the actions he listed in his deposition on how to test for a suspected short circuit on May 9, 2018.
Additionally, Plaintiffs claim that after leaving the Premises on May 9, 2018, Leone called Bono and informed him that replacing the circuit breaker would cost $4,500.00 and that he would return with his employees the following day to "rewire and to remediate the issues they were originally called to the loss location to address." Plaintiffs submit that All Good's employees completed work between 5:00 pm and 7:00 pm on May 9, 2018 and prior to leaving they "energized all circuits on the newly installed circuit breaker panel." Plaintiffs allege that after being informed that the electricity was still not working, All Good employees energized the circuit breaker "a total of four times." Additionally, Plaintiffs submit that instead of investigating the source of the short circuits each time it tripped, All Good advised Plaintiffs to leave the breaker in an off position until the next day. Plaintiffs cite the testimony of Leone wherein he states:
Q. Prior to the removal of the light panel - - excuse me, the circuit breaker panel, did you or any of your employees do continuity testing on any of the circuits?
A. No.
Q. Did you do any voltage testing on any of the circuits prior to the panel being removed?
A. No.
Q. So to the best of your knowledge when you were at the premises, there was in fact at least one breaker that tripped?
A. One. Yes.
Q. Okay. And that one breaker that tripped, there was never a continuity testing or voltage testing performed; is that correct?
A. That's correct.
Deposition of Leone pages 32-34.
Plaintiffs claim that after All Good's employees left, they noticed "a strange smell and found the house covered in a dense of smoke." Plaintiffs claim it took the Point Lookout-Lido Fire Department hours to control the fire, at which point, Plaintiffs belongings were destroyed by either fire or water damage.
The Fire Incident Report issued by the Point Lookout-Lido Fire Department determined that the source of the ignition was an "electrical failure due to a short circuit resulting in arcing." The report of the Nassau County Police Department "agreed with the findings [of the fire department] that the fire was started by an electrical surge."
The instant matter is one of three (3) connected actions, currently pending before this Court. The actions were joined for discovery and trial (see NYSCEF Doc #18). Each action seeks to recover monetary relief as a result of the fire. Plaintiffs commenced the instant action by filing of a Summons and Complaint on August 13, 2018. Defendant, All Good filed its Answer with Cross Claims against co-defendant Bono on September 13, 2018. Bono filed his Verified Answer with Cross Claims and Demands against All Good on October 8, 2018.
The law is settled. Summary judgment is the "procedural equivalent of a trial" (Falk v. Goodman, 7 N.Y.2d 87, 91 [1959], and, as such, it is a "drastic remedy" which should not be granted where there is any doubt as to the existence of a triable and "bona fide" issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978]). It is only when the movant has made a prima facie showing which demonstrates that summary judgment is warranted, does the burden then shift to the opposing party to show by evidentiary facts that a claim is real and can be established at trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563 [1980]; Indig v. Finkelstein, 23 N.Y.2d 728 [1968]). Ultimately, the purpose of the motion is to sift out evidentiary facts and determine from them whether an issue of fact exists (Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178 [1994]). As such, "[i]n determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party" (Stukas v. Streiter, 83 A.D.3d 18, 22 [2nd Dept. 2011]; Pearson v. Dix McBride, LLC, 63 A.D.3d 895 [2nd Dept. 2009]).
Plaintiff's Motion for Summary Judgment [Seq. 003]
Upon the instant motion [003], Plaintiffs seek summary judgment as a matter of law on the issue of liability against All Good.
Plaintiffs submit a number of items as supportive proof of their application, including but not limited to, the Affidavit of Plaintiff Dessie Montagna and the purported Expert Affidavit of Plaintiff Frank Montagna; the deposition transcripts of the aforementioned Plaintiffs; the Deposition Transcript of Leone; photographic evidence of the fire and the damage that resulted; the Point Lookout - Lido Fire Department Report (hereinafter referred to as "Fire Department Report"); the Nassau County Police Department Report (hereinafter referred to as "Police Report"); and, the FCNA Dove report by James M. Jones C.F.E.I.
As will be further addressed later in this Decision and Order, the Fire Department Report submitted by Plaintiffs was uncertified and the purported expert's report was not accompanied by a curriculum vitae or any similar documentation.
Plaintiffs' salient argument throughout their application, is that All Good knew of an electrical short circuit that existed and needed to be addressed, yet failed to do so. Additionally, Plaintiffs claim that All Good violated its duty of care by replacing the existing circuit breaker panel and upgrading the service from 100 to 200 amps, rather than addressing the short circuit itself. Based upon the papers and arguments, Plaintiffs submit that they "have demonstrated the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law." Plaintiffs also note that the Fire Department determined that "[t]he source of the ignition was from electrical failure due to a short circuit resulting in arcing - which provided the heat sources in a crawl space or ceiling of the home." Additionally, they argue that the Police Report states that they along with "with Fire Marshal Hickman determined the fire was accidentally started by an electrical surge at the area where an exterior light fixture sat." Furthermore, Plaintiffs offer that Leone failed to explore fully or competently the reason behind the electrical shorts Plaintiffs had been experiencing.
In opposing Plaintiffs' motion, All Good relies upon the Affidavits and Reports of its purported experts Andrew Pietropaolo, EE CFEI ("Pietropaolo") and Edward Tucker IAAI-CFI / NAF I-CFEI ("Tucker"). All Good argues that Plaintiffs are not entitled to summary judgment for two reasons, to wit: they have not sustained their burden pursuant to CPLR 3212 and their submitted evidence is flawed.
All Good argues that as of the date of their Affirmation in Support and in Opposition, Plaintiffs have not disclosed an expert at any time in the case and have not supplemented or amended their responses to All Good's demands. Additionally, All Good argues that Plaintiffs have submitted an affidavit from Frank A. Montagna, one of the named Plaintiffs to the instant action. All Good argues that Mr. Montagna's "stated background and own testimony indicate that he does not possess any degree or work experience in electrical engineering or electrical contracting field." Furthermore, All Good points out that at Mr. Montagna's deposition, he stated as follows:
All Good additionally argues that Plaintiffs have not submitted an affidavit or opinion from an electrical engineer in support of their motion.
Q. Do you believe you have expertise to determine the origin and cause of this fire?
A. I can come up with an opinion, I am not an electrician.
Meanwhile, All Good relies upon inter alia the Affidavit of its proposed expert Edward Tucker IAAI-CFI/ NAFI-CFEI, a fire investigator and former New York City Fire Marshal. Tucker positions, in part, that Mr. Montagna's background does not demonstrate an ability to testify as an expert on the instant matter.
Tucker's curriculum vitae lists various trainings in fire investigations.
All Good additionally argues that Plaintiffs attempt to offer another expert defectively through an exhibit.
Additionally, All Good submits that in addition to the alleged procedural defects regarding the purported experts and reports, Plaintiffs' did not meet their burden for summary judgment as the depositions of Paul Leone and Dexter Jacobs of All Good also presented issues of material facts. Specifically, All Good argues that Leone's testimony "indicates quite clearly that there were several electrical issues that needed to be addressed at the premises, including a need to bring wiring up to code. That necessitated first the upgrade in service before any other work-including troubleshooting a complaint of an apparent fault-could be performed. That troubleshooting was to be performed the next day after the electric circuit was left off."
Notably in their Reply, Plaintiffs argue, for the first time, that they should succeed on their motion for summary judgment under the doctrine of res ipsa loquitur. In support of this contention, Plaintiffs argue that they have met all the elements of res ipsa loquitor common law negligence. Thus, they position that, even without the missing evidence, the facts of this case support a finding of liability on the part of All Good.
This Court begins by noting that, in seeking summary judgment, Plaintiffs assert that Cambridge Mut. Fire Ins. Co. v P.O.B. Electric, Inc. is exactly on point to the instant matter (Cambridge Mut. Fire Ins. Co. v P.O.B. Electric, Inc., 164 A.D.3d 642, 642 [2nd Dept 2018]). This Court disagrees. In Cambridge Mutual Fire Insurance Co., the movants submitted "the affidavits and reports of its fire and electrical investigators" and were not trying to assert an argument pursuant to res ipsa loquitur. The Court finds these distinctions to be determinative. Moreover, although Plaintiffs submit that "[they] are not 'required' to support their motion for summary judgment by offering the report of an electrical expert," this Court cannot overlook that Plaintiffs submit two defective supportive experts, to wit: Mr. Montagna whose asserted qualifications do not rise to the level of fire and electrical investigators and James Jones, who did not include a curriculum vitae with his otherwise notably bare bones report. Moreover, this Court notes that the Fire Department Report submitted by Plaintiffs was uncertified and therefore inadmissible hearsay (see CPLR 4518).
Additionally, the Court notes that Mr. Montagna, transitions in his Affidavit from lay witness testimony to expert positions.
Thus, based upon the evidence presented, this Court finds that Plaintiffs have failed to establish their entitlement to judgment as a matter of law on liability. Indeed, this court finds that there remain significant issues of material fact, - including but not limited to - missing evidence, no credible expert testimony and the lack of a certified fire report. Thus, based upon the evidence submitted, including the photographs, the fire report and the proposed expert reports, the Court finds that Plaintiffs have failed to adequately demonstrate their entitlement to summary judgment as a matter of law.
Therefore, Plaintiffs motion [003] for summary judgment as to liability against All Good is DENIED.
All Good's Cross Motion for Summary Judgment Dismissing Plaintiffs' Complaint Motion Sequence [005]
In support of its own cross-motion for summary judgment, All Good's sole claim, is that "key physical evidence from the fire scene was not preserved and spoliated [and] All Good's ability to defend all claims against it that its work caused or contributed to the subject fire has been prejudiced." All Good submits the affidavits of its proposed experts Tucker and Pietropaolo. All Good argues that its purported experts explain that "based on inspections of the property and of physical evidence that was examined" they "opine" that key pieces of physical evidence, such as the circuit box and the light fixture, were not properly preserved by Bono and its agents. In support of their cross motion, All Good states the "[p]roperty was not properly preserved by Bono and/or agents of his acting through [New York Property Underwriting Association] in the investigation of the fire".
Based upon the papers submitted herewith, this Court finds this argument to be wholly meritless as against the Plaintiffs. All Good's application for sanctions against Plaintiffs is flawed as it was incorrectly sought in the instant action against Plaintiffs. Indeed, at no point does All Good claim let alone demonstrate that Plaintiffs had any connection to the alleged spoliation.
The law is clear. In addition to being self-evident in the language of the standard, it is well settled that, sanctions should not be imposed against a party who is not responsible for the spoliation (Miller Realty Assoc. v Amendola, 51 A.D.3d 987, 988 [2nd Dept 2008]; McLaughlin v Brouillet, 289 A.D.2d 461 [2nd Dept 2001]). The New York State Court of Appeals in Pegasus Aviation I, Inc. v Varig Logistica S.A., held that a party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543 [2015]). Thus, the question of whether to sanction a party for spoliation, commences with a two-prong analysis. First, the moving party must claim and demonstrate that the party it is seeking to sanction had an obligation to preserve the evidence and second they have to claim and demonstrate that the evidence was controlled with the culpable state of mind. Here, All Good has neither claimed nor demonstrated that Plaintiffs met either prong of aforementioned standard. All Good offers that, "sanctions under CPLR 3126 [are] appropriate even if All Good here themselves did not negligently lose or intentionally destroy the physical evidence at issue in this case" (Gotto v. Eusebe-Carter, 69 A.D.3d 566, 568 [2nd Dept. 2010]). The Court finds All Good's reliance on Gotto to be misplaced. However, in Gotta, the sanctioned party was a hospital and had the obligation to preserve its own records. Additionally, the Court in Gotta found that, since Plaintiff failed to clearly establish that the Hospital negligently lost or intentionally destroyed the material, Plaintiff was entitled only to the sanction of an adverse inference charge at trial. Furthermore, the Court overturned the lower Court's action in striking the pleading based on spoliation of evidence (Gotto v Eusebe-Carter, supra at 568).
Therefore, based upon the papers submitted herewith this Court finds that All Good has failed to meet its prima facie burden for summary judgment against Plaintiffs.
Accordingly, its cross motion [004] for summary judgment dismissing Plaintiffs' complaint against All Good with prejudice is DENIED without regard to the opposing proof. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563 [1980]; Indig v. Finkelstein, 23 N.Y.2d 728 [1968]).
All Good's Motion to Dismiss Bono's Answer and Cross Claims Motion Sequence [004]
By separate motion, All Good also seeks an Order of this Court pursuant to CPLR 3126 striking the answer, including cross-claims of Bono with prejudice and upon striking the answer pursuant to CPLR 3212, dismissing Bono's cross-claims against All Good, and granting and awarding All Good summary judgment on liability against Bono.
As supportive proof to its application, All Good submits, inter alia, party and nonparty depositions and the Affidavits and Reports of its purported experts Andrew Pietropaolo, EE CFEI and Edward Tucker IAAI-CFI / NAF I-CFEI.
All Good bases its application on its claim that spoliation of the physical evidence prejudices its ability to defend itself. All Good submits that the alleged spoliated evidence clearly demonstrated that "sometime between a scene examination conducted by Plaintiff [New York Property Underwriting Association's] investigators in May and June, 2018 and the joint scene examination held on August 16, 2018 this fire scene was altered and much of the evidence needed to determine the cause of this fire was removed." On this basis, All Good argues that it has been prejudiced in its ability to properly defend itself.
Additionally, All Good argues that Bono, as the owner of the property, either directly or through those acting on his behalf, namely his subrogee on the claim for insurance proceeds for damages resulting from the fire, NY Property, was obligated to maintain the evidence and was "at minimum" negligent in not maintaining them.
In support of this contention, All Good and its purported experts argue that no causal link can be made between the wiring of the items and the alleged improper reset that occurred against All Good. All Good notes that Plaintiffs purported expert, "Steven Pietropaolo, EE CFEI, a degreed electrical engineer, licensed electrician and Certified fire and Explosion Investigator" went to the property twice, once on August 16, 2018 and once on October 3, 2018, and that according to Pietropaolo at both dates, the breakers in the main electrical panel were not present. Pietropaolo also attaches photograph comparison "showing the breakers present at the time the Fire Marshal's inspection on May 9, 2018" and the later dates. Pietropaolo argues that because he did not have access to the circuit breaker, he could not positively trace the reported affected circuit. Additionally, Pietropaolo argues that Plaintiff failed to follow the standards of practice for the preservation of evidence.
All Good's other purported expert, Tucker, argues that the evidence Plaintiffs rely on do not support "an electrical fault or failure in any evidence that was examined at the fire at the scene and at a subsequent laboratory setting." In support of this contention, Tucker claims that the photographs provided with Plaintiffs' motion papers are not sufficient to demonstrate that the fire was caused in the way that Plaintiffs are claiming. Tucker also argues that although the breaker was intact on May 20, 2018, "all of the circuit breakers had been removed from the electric panel that was mounted to the south wall of the garage." Tucker also provides photographs of the circuit breaker in May and August. Additionally, Tucker argues that the light fixture, which was the suspected origin of the fire, was also missing and never made available nor were its whereabouts made known to All Good or its purported experts.
"[W]hen a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" (Holland v W.M. Realty Mgt., Inc., 64 A.D.3d 627, 629 [2nd Dept 2009]; see Sanders v 210 N. 12th St., LLC, 171 A.D.3d 966, 967 [2nd Dept 2019]). "The party requesting sanctions for [spoliation] has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense" (Peters v Hernandez, 142 A.D.3d 980, 980 [2nd Dept 2016] [internal quotation marks omitted]; see Utica Mut. Ins. Co. v Berkoski Oil Co., 58 A.D.3d 717, 718 [2nd Dept 2009].
All Good argues the Second Department is clear "that when a party like defendant John Bono here, negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126." In support of this contention, All Good confusingly immediately cites to two cases wherein the Appellate Court either affirmed the lower court's denial of sanctions based on spoiliation or overturned the lower Court's order sanctioning. (Abdourahamane v Pub. Stor. Institutional Fund III, 190 A.D.3d 666, 667 [2nd Dept 2021], lv to appeal dismissed, 37 N.Y.3d 1018 [2021]; Holland v W.M. Realty Mgt., Inc., 64 A.D.3d 627, 629 [2nd Dept 2009]). Importantly, in neither case did the Court consider let alone grant a dismissal of the pleadings based on spoliation.
All Good relies New York Central Mutual Fire Ins. Co. v. Turnerson's Electric, Inc., but this Court finds its reliance to be misplaced (New York Central Mutual Fire Ins. Co. v. Turnerson's Electric, Inc., 280 A.D.2d 652 [2nd Dept 2001]). In New York Central Mutual Fire Ins. Co. v. Turnerson's Electric, Inc., the Court states that the investigator "acting on the instructions from a claim adjuster destroyed the circuit panel." All Good has presented no evidence that anyone instructed that the circuit panel be destroyed. Furthermore, All Good's makes no claim that anyone specific is responsible for the materials being gone, rather, All Good claims that one of (3) three individuals must have been responsible for the disappearance of the evidence. A distinction from New York Central that is determinative.
If this Court were to be guided by any of the cases cited by All Good, it would be Gotto, where the Court denied striking the pleadings, and in the alternative granted a negative inference at trial. (Gotto v Eusebe-Carter, supra at 568). However, All Good's prayer for relief is clearly and unequivocally "pursuant to CPLR 3126 to strike the answer, including cross-claims, of defendant John Bono with prejudice, and upon striking the answer of defendant Bono, granting and awarding All Good summary judgment on liability against Bono, based on spoliation of physical evidence." In addition to not having sought that relief, this Court finds that based upon the papers submitted All Good has established that loss of the evidence, has "fatally compromised [its] ability" to defend this action (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 A.D.3d 717 [2nd Dept 2009]).
ORDERED that Defendant All Good's motion pursuant to CPLR 3126, striking the answer, including cross-claims of Bono is DENIED. Having denied All Good's application to strike, this Court need not address the portion of All Good's prayer for relief seeking summary judgment "upon striking the answer."
The parties remaining contentions have been considered and do not warrant discussion.
All other relief not specifically addressed by this Court is DENIED.
This shall constitute the Decision and Order of the Court.