Opinion
5333/02 325d
Decided June 6, 2005.
BACKGROUND
This is an action to recover damages arising out of a boiler malfunction or malfunctions occurring between January 20-24, 2001 at commercial premises leased by the plaintiffs. On two occasions during this time period, the boiler emitted black smoke damaging the premises and merchandise therein. The emissions also caused business operations to be interrupted.
The plaintiffs, Tennis Junction LTD a/k/a Tennis Junction d/b/a Sportset ("Tennis Junction") and ML Custom Clothiers, P.C. a/k/a Suit Your Style Custom Clothiers ("ML") are, respectively, tenants at 43 45-A Middle Neck Road, Great Neck, New York. The owner of the subject premises is defendant Great Neck Plaza Corp. ("Great Neck Plaza"). The entity that Great Neck Plaza engaged to service and maintain the boiler thereat is Seasons Fuel Oil Corp. a/k/a Seasons Fuel ("Seasons"). Defendant 2B's Incorporated ("2B's") is a plumbing company hired by Great Neck Plaza in December 2004 to renovate two bathrooms on the second floor of the premises and to install a hot water heater in the basement. 2B's, in turn, subcontracted some of its work to defendant All American Plumbing and Heating, Inc. ("All American"). Defendant Hot Water Plus, Inc. ("Hot Water") was hired by Great Neck Plaza to treat the boiler water with a chemical to prevent the build-up of sludge.
The Court notes that the action was discontinued as against All American Plumbing, Inc.
In eight causes of action sounding in negligence and breach of contract, the plaintiffs assert that the defendants failed in their alleged obligations to maintain and repair the boiler. The defendants deny the allegations contained in the plaintiffs' complaint and assert various common law and contractual defenses. The defendants also cross-claim against each other seeking indemnity and contribution.
Before the Court are two motions and four cross motions for summary judgment.
THE MOTIONS AND PARTIES' CONTENTIONS Plaintiffs' Motion
Although the plaintiffs move for summary judgment against all defendants, their arguments focus primarily on defendants Great Neck Plaza and Seasons.
The plaintiffs' notice of motion seeks summary judgment against all defendants. However, the supporting affirmation of Jeffrey Sunshine contains the following statements: "[a]t this point in the litigation, it is not clear if there is any evidence to support liability against [the other] parties" (para. 5 of Sunshine Affirmation), and in para. 21, Mr. Sunshine adds "plaintiffs are not aware of any real negligent acts committed by (the other) defendants . . . But for the third-party action commenced by Great Neck Plaza, these parties would not have been brought in by plaintiffs. . . . [T]his Court must grant summary judgment . . . against Great Neck Plaza . . . and `Seasons'." Yet, in a subsequent affirmation, Mr. Sunshine makes the conflicting statement "the liability falls squarely with Great Neck Plaza and Seasons and quite possibly the third-party defendants" (para. 30 of Sunshine affirmation in opposition to motion of Great Neck Plaza and Seasons and in further support of plaintiffs' motion).
According to the plaintiffs, they leased premises pursuant to written lease agreements with Great Neck Plaza in which Great Neck Plaza reserved to itself the responsibility of maintaining the heating system.
Attached to plaintiffs' motion papers is a copy of a lease agreement between ML and Great Neck Plaza for a term commencing June 1, 1993. Although the plaintiffs have not attached the lease agreement between Tennis Junction and Great Neck Plaza, a copy of that agreement is an exhibit to Great Neck Plaza's cross motion.
Essentially, plaintiffs argue that the deposition testimony establishes their entitlement to summary judgment: Plaintiffs were tenants at the premises and were not responsible for maintaining and repairing the boiler; Great Neck Plaza, as landlord, had a non-delegable duty to maintain and repair the boiler; Great Neck Plaza had actual and constructive notice of problems with the 25-year-old boiler and had been advised to replace it; Great Neck Plaza hired Seasons to perform maintenance service on the boiler; Seasons had serviced the boiler for 20 years, including as recently as 5 days before the (first) malfunction; the boiler malfunctioned over a period of several days, causing black smoke to fill their stores, necessitating closure. Plaintiffs characterize the malfunction(s) as a "puff back". In a subsequent affirmation, plaintiffs' attorney asserts that Great Neck Plaza should be charged with spoliation of evidence in that it disposed of the boiler, thus preventing the parties' experts from properly analyzing the causes of the malfunction(s). Defendant Great Neck Plaza's Cross Motion
The Court will not consider any spoliation argument inasmuch as it has not been properly raised herein (See, Voytek Technology, Inc. v. Rapid Access Consulting, Inc., 279 AD2d 470 [2nd Dept 2000] [Court will not consider arguments raised for first time in reply papers]).
Great Neck Plaza moves for summary judgment to dismiss the complaint and all cross claims on the basis that it did not cause the boiler malfunction(s) nor did it have actual or constructive notice of any problem with the boiler. Moreover, according to Great Neck Plaza, it had an oral agreement with Seasons dating to 1978 in which Seasons would supply oil, maintain the boiler and be responsible for dealing with boiler problems. At no time prior to January 20, 2001 did Seasons recommend replacing the boiler. Notably, a few days prior to the malfunction(s), after Great Neck Plaza was notified of a heating problem at the subject premises, it contacted Seasons to make a service call. Seasons made service calls just prior to the malfunction(s). Finally, citing the lease agreements, Great Neck Plaza argues that hold harmless provisions exculpate it from any liability to the plaintiffs.
Defendant Seasons' Cross Motion
Seasons moves for summary judgment dismissing the complaint and cross claims on the following bases: it had no maintenance contract or service agreement with Great Neck Plaza; the boiler was installed in 1929, and Great Neck Plaza chose not to replace it; there was no evidence that Seasons negligently repaired the boiler at any time; the affidavit of investigator Daniel Seely confirmed that Seasons acted properly in testing the boiler on January 20, 2001 and thereafter; the cause of the malfunction(s) was a sticky chemical substance added to the boiler (possibly by defendant Hot Water) to prevent sludge build-up.
Defendant Hot Water Plus, Inc.'s Cross Motion
Hot Water cross-moves for summary judgment dismissing the complaint and cross claims arguing that no evidence of negligence on its part was adduced during discovery. In this regard, in the summer of 2000, without incident, it cleaned the boiler with inflammable water-based solutions that were neither sticky nor slippery. At no time were chemicals spilled on the boiler. Moreover, Hot Water never received any complaints regarding its services. Lastly, no evidence was presented showing that the sticky substance observed on the boiler was placed there by Hot Water.
Defendant 2B's Motion
2B's seeks dismissal of the complaint and all cross claims on the basis that it performed no work on the boiler in January 2001. Although 2B's and its subcontractor (All American) installed a hot water heater in the basement of the premises, they did not work in the vicinity of the boiler, as the deposition testimony established.
Defendant All American's Cross Motion
All American, likewise, cross-moves for summary judgment dismissing the complaint and all cross-claims on the basis of testimony establishing that although it subcontracted with 2B's to install a bathroom on the second floor of the premises, it performed no work on or near the boiler. In fact, All American did not service commercial boilers.
The following is a summary of the testimony and evidence presented by the parties.
THE DEPOSITION TESTIMONY
Plaintiff Tennis Junction
Norman Lee, secretary/treasurer of Tennis Junction testified that Tennis Junction was a retail sporting goods store. The store had operated at 43 Middle Neck Road since 1978 pursuant to a lease agreement with Great Neck Plaza.
On January 20, 2004, black smoke from the boiler began to fill the entire store, damaging the premises and merchandise. Mr. Lee called the Fire Department and Great Neck Plaza, and closed the store. After opening the store on January 22, and when someone was working on the boiler, another malfunction occurred. A firefighter advised him that a puff back had occurred.
In the past, when there were problems with the boiler, Great Neck Plaza would pay for repairs. In the instant case, after calling Herb Jacobs of Great Neck Plaza and advising him of the condition of the store, Jacobs said that he would call the company that services the boiler. Mr. Lee also testified that the boiler had shut off in the past and left the building without heat.
Plaintiff ML
Marvin Feinberg, President of ML, a tailor shop, testified that ML had occupied 45-A Middle Neck Road since 1992, pursuant to a written lease agreement with Great Neck Plaza.
According to Mr. Feinberg, repairs to the boiler were the responsibility of Great Neck Plaza. Like Mr. Lee, he testified that on January 20, 2001, the store became filled with black smoke, soot and the smell of oil. He also called Mr. Jacobs, who responded that he was aware of the situation. The store and merchandise suffered physical damage, and there was also a significant loss of business. A second puff back occurred two days later.
Periodically, throughout ML's tenancy, there were problems with heating. On those occasions, Mr. Feinberg would call Mr. Jacobs and Seasons. He recalled speaking to someone at Seasons ten to twenty times over the years, and said that he and Seasons had a key to the basement, which is where the boiler was located.
Defendant Great Neck Plaza
Herb Jacobs testified that he was manager of Great Neck Plaza and that he had negotiated the lease agreements with the plaintiffs. According to Mr. Jacobs, Great Neck Plaza was responsible for the heating system. Great Neck Plaza also had an informal and verbal contract with Seasons, which, he believed, supplied oil to the building from before 1978. The agreement required Great Neck Plaza to buy oil exclusively from Seasons "and they would be responsible for dealing with problems with the boiler."
At some point, Seasons recommended cleaning the water inside the pipes. Thus, in the late 1990s, Great Neck Plaza hired Hot Water to "treat" the water. This was done on an annual basis.
Mr. Jacobs also confirmed that the boiler would occasionally shut down, as it did, three or four days prior to January 20, 2005 (at which time he called Seasons). On January 20, 2005, after receiving a phone call that there was black smoke emanating from the basement and that the Fire Department responded, he again called Seasons and spoke to Danny Flori. Subsequently, he was told that he would have to replace the boiler. In fact, he caused the boiler to be replaced shortly thereafter. The company that installed the new boiler removed the old one.
Mr. Jacobs also testified that around the time of the subject incident, he hired 2B's to renovate bathrooms on the second floor. To complete the job, 2B's was required to install a hot water heater in the basement.
Defendant Seasons
Daniel Flori testified that in January 2001, he was President of Seasons. Seasons had a verbal agreement with Great Neck Plaza that it would provide all fuel products to Great Neck Plaza and that it would service and repair the boiler when necessary. They would recommend to all their customers to do annual cleaning and boiler tune-ups.
He also said that if a boiler appeared to be deteriorating, Seasons would make a recommendation to change it. He recalled recommending to Great Neck Plaza that it treat the (boiler) water with a chemical to keep it clean.
Seasons had performed a tune-up of the boiler on December 28, 2000 and also replaced the transformer. On January 15, 2000, Seasons received another call indicating that there was no heat on the second floor. On that date the problem was corrected by replacing a nozzle. On January 20, 2005, after receiving another call, the boiler was examined and found to be "shut down." The boiler was wet on the outside with an unknown, sticky substance. When Seasons left the building on January 20, the boiler was off. Seasons planned on restarting the boiler after brushing and cleaning it.
On January 22, after brushing the boiler, a Seasons worker tried to start the burner. Apparently, a fire occurred inside the boiler causing it to smoke. Mr. Flori later spoke to Mr. Jacobs and told him that the boiler was inoperable and had to be replaced.
According to Mr. Flori, a puff back occurs when too much oil enters the fire chamber and ignites, causing smoke. He was not aware if a puff back occurred on January 20.
Defendant 2B's
Boris Benecic, President of 2B's, testified that 2B's was a general contractor specializing in kitchens and bathrooms. In December 2000, 2B's contracted with Great Neck Plaza to install two bathrooms on the second floor of the premises. He subcontracted the plumbing work for the bathrooms to All American. It became necessary to install a separate hot water heater in the basement because the existing heater was "tapped into the boiler" which appeared to be "thirty-five years old" and "in trouble." The heater was installed a distance from the boiler. Nobody from 2B's was working when the puff back allegedly occurred. In December 2000 and in January 2001, Mr. Benecic advised Mr. Jacobs that the boiler needed to be replaced.
Defendant Hot Water
David Breitman, service manager of Hot Water, testified that Hot Water began treating boiler water for Great Neck Plaza in 1999. The water was treated with water based, soluble chemicals ("Aquaclean", "Aquaclear" or "Aquatreat") to prevent the boiler from rusting. The chemicals left no residue, were not sticky and never, to his knowledge, came into contact with the surface of the boiler. After treating the water, Mr. Breitman would return to the site once a month to perform further tests. The last time Hot Water treated the boiler water at the premises was May 31, 2000. The last time Hot Water visited the premises was in July 2000. At that time, the boiler water was only tested. Defendant All American
An affidavit of Mr. Brietman gives slightly different dates from those mentioned during his deposition.
John Gallagher, appearing on behalf of All American, testified that All American did plumbing work on two bathrooms at the premises in 2001. All American did no work in the boiler room, however. He did not know if All American installed a hot water heater in the basement in connection with the bathroom work.
There appears to be a mistake in the transcript of Mr. Gallagher's deposition in that he is described as representing All American Plumbing when in reality he represented All American Plumbing Heating, Inc.
THE LEASE AGREEMENTS
The lease between ML and Great Neck Plaza contains, inter alia, the following provisions:
THIRTEENTH The Landlord shall not be liable for any failure of water supply or electrical current, sprinkler damage, or failure of sprinkler service, nor for injury or damage to person or property caused by the elements or by other tenants or persons in said building, or resulting from steam, gas, electricity, water, rain or snow, which may leak or flow from any part of said buildings, or from the pipes, appliances or plumbing works of the same, or from the street or sub-surface, or from any other place, nor for interference with light or other incorporeal hereditaments by anybody other than the Landlord, or caused by operations by or for a governmental authority in construction of any public or quasi-public work, neither shall the Landlord be liable for any latent defect in the building.
THE LANDLORD COVENANTS
SECOND Subject to the provisions of Paragraph "Fourteenth" above the Landlord will furnish . . . (b) Heat . . . in the cold season in each year.
The lease between Tennis Junction and Great Neck Plaza contains the following relevant provisions:
The Court notes that it is unable to review many parts of the lease due to the poor quality of the copy provided.
8. Owner or its agents shall not be liable for any damage to property of Tenant or of others entrusted to employees of the building, nor for loss of or damage to any property of Tenant by theft or otherwise, nor for any injury or damage to persons or property resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees.
30. As long as tenant is not in default under any of the covenants of this lease, Owner shall, if and insofar as existing facilities permit furnish heat . . .
The Court notes that it is unable to review many parts of the lease between Tennis Junction and Great Neck Plaza due to the poor quality of the copy provided.
OTHER EVIDENCE AND EXHIBITS
Among the various exhibits to the motion papers are the following: "expert" disclosure of Michael Belfi, and his unsworn report concerning the January 20-24 boiler malfunction(s) which places blame for the incidents on Seasons; letter from Joe Roche, a claim representative at Great American, which contains assertions about the presence of Aquatreat on the boiler; Affidavit of Daniel Seely, an investigator retained by Seasons, which asserts that he "performed an investigation at the Great Neck Plaza, after the incident in January 2001," and "obtained samples of residue from the discharge vents in the building [which were tested and which] revealed that a puff back did not occur." In addition, he tested "samples of Aquatreat chemical [and found them to be] consistent with the sticky substance which appeared on the boiler [as described by the Seasons technician]." He concludes by saying that "[c]ertainly Seasons Fuel could not have placed the sticky substance on the outside or inside of the burner which caused its malfunction."
DECISION
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Zuckerman v. City of New York, 49 NY2d 557, 562; Pirrelli v. Long Island R.R., 226 AD2d 166 [1st Dept 1996]; Stewart Title Insurance Company, Inc., Respondent, v. Equitable Land Services, Inc., 207 AD2d 880 [2nd Dept 1994]). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue ( Stewart Title Insurance Company, Inc., Respondent, v. Equitable Land Services, Inc., supra).
It is the decision of the Court that the plaintiffs, Great Neck Plaza, Seasons and Hot Water have failed to establish entitlement to summary judgment.
Plaintiffs and Great Neck Plaza
At bar, the rights and obligations of plaintiffs and Great Neck Plaza are defined by the lease agreements. It is undisputed that under both agreements Great Neck Plaza was obligated to provide heat at the premises and to maintain and repair the heating system (see, also, Testimony of Herbert Jacobs at pp. 13, 26-27). The plaintiffs have failed to submit evidence sufficient to show that Great Neck Plaza, as a matter of law, breached or was negligent in regard to this duty. Significantly, plaintiffs presented virtually no evidence concerning the cause of the malfunction(s) nor did they establish with competent proof the exact nature of the malfunction(s). Instead, they claim entitlement to judgment based on the age of the boiler and the mere fact that a malfunction or malfunction(s) occurred (see, Braithwaite v. Equitable Life Assur. Society of the United States, 232 AD2d 352 [2nd Dept 1996]). Notably absent from plaintiffs' motion papers is any expert evidence concerning the cause of the malfunction(s) (see, Miller v. Schindler Elevator Corp., 308 AD2d 312 [1st Dept 2003]; Hardy v. Lojan Realty Corp., 303 AD2d 457 [2nd Dept 2003]; see, generally, Clark v. New York City Housing Authority, 7 AD3d 440 [1st Dept 2004] [expert affidavit failed to establish causation]).
With respect to Great Neck Plaza's cross motion, the following is noted: Generally, a lessor is not responsible for the negligent acts of an independent contractor (see, Mercado v. Slope Assocs., 246 AD2d 581 [2nd Dept 1998]; Polipo v. Sanders, 227 AD2d 256 [1st Dept 1996]; Perkins v. Eighmie, 6 NYS 156 [2nd Dept 1889], affd 125 NY 706). However, where the lessor assumes a specific duty under contract, it cannot escape the responsibility of performing such duty by delegating it to an independent contractor ( Hyman v. Barrett, 224 NY 436; 2A NY Jur Agency and Independent Contractors § 411). This exception to the general rule of non-liability is itself subject to the caveat that a lessor may contractually exculpate itself from liability resulting from the negligence of others.
Here, the lease between Tennis Junction and Great Neck Plaza contains a provision that limits the latter's liability to damages arising out of its own negligence or the negligence of its agents, servants and employees. Thus, although it undertook a duty to maintain and repair the heating system at the premises, it cannot, under the terms of the lease, be held responsible to Tennis Junction for the negligence, if any, of Seasons or Hot Water. Of course, Great Neck Plaza can be held responsible for its own negligence (General Obligations Law 5-321) and breach of contractual duty not otherwise circumscribed, and the court does conclude that it failed to establish entitlement to dismissal of Tennis Junction's complaint insofar as asserted against it.
The lease between ML and Great Neck Plaza contains a more limited exculpatory provision. The provision purports to exonerate Great Neck Plaza from liability where the tenant has suffered damage caused by "failure of water supply or electrical current, sprinkler[s] . . . steam, gas, electricity, water, rain or snow." However, these limitations do nothing to restrict Great Neck Plaza's potential liability here, where the damage was caused by smoke emitted from a boiler. The court further notes applicability of the general rule that exculpatory provisions are accorded a strict construction ( Gross v. Sweet, 49 NY2d 102; Board of Education v. Sargent, Webster, Crenshaw Folley, 146 AD2d 190 [3rd Dept 1989]). Thus, having undertaken a duty by contract with ML, Great Neck Plaza cannot delegate such duty to an independent contractor and it can be held liable to ML for its own negligence (and, of course, for its contractual breaches), and for the negligence of an independent contractor ( Hyman v. Barrett, supra).
Regarding the report of Donald Belfi, the Court notes that it is unsworn and inconclusive and thus entitled to no weight (see, Abrahamsen v. Brockway Glass Co., 156 AD2d 615 [2nd Dept 1989]; Gardner v. Ethier, 173 AD2d 1002 [3rd Dept 1991]).
Accordingly, the plaintiffs' motion for summary judgment is denied, as is Great Neck Plaza's cross motion.
Plaintiffs and Seasons
Plaintiffs seek to hold Seasons liable to it under a theory of negligence. In fact, Seasons was under a duty to service and repair the boiler in a reasonable manner (e.g., Condomanolis v. Boiler Repair Maintenance Co., Inc., 44 AD2d 366 [1st Dept 1974]). Although the testimony establishes that Seasons worked on the boiler shortly before the first malfunction and that it was working on the boiler at the time of the second malfunction, the plaintiffs failed to establish, as a matter of law, that Seasons was negligent and that such negligence proximately caused its damages (see, Hardy v. Lojan Realty Corp., supra). The Court again notes the failure of proof on causation.
Seasons, likewise, failed to submit evidence establishing that it did not cause or contribute to the malfunction(s).
As such, plaintiffs' motion and Seasons' cross motion are denied.
Plaintiffs and Hot Water
The plaintiffs failed to establish that Hot Water was negligent in treating the boiler water or that any alleged negligence on its part proximately caused the boiler malfunction(s). Moreover, the vague testimony adduced concerning the possible presence of Aquatreat on the surface of the boiler is wholly inconclusive as is the affidavit of Daniel Seely. That affidavit merely identifies Mr. Seely as an investigator; it does not state his qualifications or experience, nor does the affidavit state how he concluded that the chemical, "Aquatreat", was actually present on the boiler in January 2001, or how it allegedly caused the malfunction. The failure of the plaintiffs to show evidence of negligence on the part of Hot Water coincides with the plaintiffs' contradictory and weak arguments which alternatively assert that Hot Water should be held liable and that it should not be held liable.
Although Hot Water's potential liability appears to be predicated on somewhat tenuous factual grounds, the Court cannot grant summary judgment to Hot Water dismissing the complaint and cross claims inasmuch as Hot Water also failed to meet its initial burden. While it is undisputed that Hot Water last visited the premises in mid-2000, no expert evidence was presented establishing that the water treatments it provided (possibly at that time or at an earlier time) could not have caused the boiler malfunction(s). The Court notes that the unsworn report of Mr. Belfi, even if it could be considered, contains no definitive statement in this regard.
In Edwards v. Arlington Mall Assocs. ( 6 AD3d 1136 [4th Dept 2004]), the defendants and third-party defendants moved for summary judgment on the basis that "plaintiff would be unable to prove negligence or causation because of the inability of her daughter at her deposition to recall whether she tripped and, if so, what caused her to trip." The Court denied the motion, stating:
"[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof'" ( Dodge v. City of Hornell Indus. Dev. Agency, 286 AD2d 902, 903, 730 N.Y.S.2d 902, quoting Orcutt v. American Linen Supply Co., 212 AD2d 979, 980, 623 N.Y.S.2d 457; see Hunley, 294 AD2d 923, 741 N.Y.S.2d 770; Kajfasz v. Wal-Mart Stores, 288 AD2d 902, 732 N.Y.S.2d 494). Because defendants and third-party defendant failed to meet their initial burden in seeking summary judgment dismissing the amended complaint, their request for that relief must be denied without consideration of the sufficiency of plaintiff's opposing papers ( see McDonald v. Snyder, 307 AD2d 745, 746, 762 N.Y.S.2d 552; Frazier v. Pioneer Cent. School Dist., 298 AD2d 875, 748 N.Y.S.2d 444; Gentile v. University of Rochester Med. Ctr., 292 AD2d 874, 739 N.Y.S.2d 330).
See also, Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Roussos v. Ciccotto, 15 AD3d 641 [2nd Dept 2005].
Thus, plaintiffs' motion and Hot Water's cross motion are denied.
Plaintiffs', 2B's and All American (and other defendants)
Defendant 2B's and its subcontractor, All American, established their entitlement to summary judgment. Both parties presented evidence showing that they performed no work on or near the boiler. Neither the plaintiffs nor any other party raised any issue of fact sufficient to defeat summary judgment.
Therefore, 2B's motion and All American's cross motions are granted. The plaintiffs' complaint and the cross claims of the remaining defendants are dismissed insofar as asserted against them.
CONCLUSION
The motion of the plaintiffs and cross motions of defendants Great Neck Plaza, Seasons and Hot Water are denied. The motion and cross motion of defendants 2B's and All American are granted. The plaintiffs, Great Neck Plaza, Seasons and Hot Water are directed to appear for a conference to be held in the 325d Part, Room 373, of the First District Court, 99 Main Street, Hempstead, New York, on 20th the day of June, 2005, at 9:30 o'clock in the forenoon of that day.
This constitutes the decision and order of the Court.
So ordered: