Opinion
02 Civ. 3392 (GEL)
November 20, 2003
Laura A. Livaccari, Morgan Lewis Bockius, LLP, New York, N.Y. (John Linsenmeyer, Dori A. Steir, on the brief), for Plaintiff
Monroe Weiss, Lambert Weiss, New York, NY, for Defendants Daniel Paduano and Nancy Paduano
Bennett R. Katz, Ohrenstein Brown, LLP, New York, NY, for Defendants 19 East 72nd Street Corporation and Brown Harris Stevens Residential Management, LLC.
OPINION AND ORDER
Plaintiff Charlotte C. Weber owns apartment 12A of the residence at 19 East 72nd Street in Manhattan. On March 19, 2001, a fire started in apartment 11 A, located directly Mieath 12A, and spread to Weber's apartment. She sued Daniel and Nancy Paduano, the owners of 11 A, as well as 19 East 72nd Street Corporation and Brown Harris Stevens Residential Management, LLC (collectively, "Building Defendants"), the owner and manager, respectively, of the building, alleging negligence. The Paduanos now move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing that the Court lacks diversity jurisdiction, and in the alternative, for summary judgment. The Building Defendants also move for summary judgment, and Weber cross-moves for partial summary judgment against 19 East 72nd Street Corporation. Because Weber has failed to adduce evidence from which a reasonable juror could infer that the Building Defendants' alleged negligence either caused or contributed to the damage to her apartment, the Building Defendants' motion will be granted. The Paduanos' motions and Weber's cross-motion will be denied for the reasons that follow.
BACKGROUND
I. Domicile
The Paduanos, New York domiciliaries (Paduano Br. 1), reside in apartment 11A of the cooperative apartment building owned by 19 East 72nd Street Corporation and located at that address. (N. Paduano Aff. ¶ 1; D. Paduano Aff. ¶ 1; Building Ds. Rule 56.1 Stmt. ¶ 1.) Since 1975, Weber has maintained an apartment in New York City, formerly at 960 Fifth Avenue, and since 1996, in apartment 12A at 19 East 72nd Street. (Weber Tr. 12, 32.) About one year ago, she bought a second New York residence in Saratoga. (Id. 14-15.)
Weber alleges, however, that she is domiciled in Florida (Compl. ¶ 1), and on that basis, brought this action in federal court pursuant to 28 U.S.C. § 1332. In opposition to the Paduanos' motion to dismiss for lack of subject matter jurisdiction, she testified that she owns two homes in Florida, one in Ocala and one in Kobe Sound (Weber Aff. ¶¶ 3, 7), and that in Ocala — where her principal business interests are located, she owns a farm (Id. ¶ 5) and maintains a business office. (Id. ¶ 6.) She also submitted evidence that she votes, files her tax returns, and registers her cars in Florida. (Id. ¶ 8; Steir Aff., Exs. 11, 13, 14.) Weber testified that she lives in her Hobe Sound home during the winter, and spends the remainder of the year traveling between Ocala, Florida, and her two New York residences. (Weber Tr. 13-15.)
II. The Fire on March 19. 2001
On March 19, 2001, a fire started in the Paduanos' apartment. While its origin, according to a report of the City of New York's Bureau of Fire Investigation, cannot be "fully ascertained" (Katz Aff., Ex. K; Ward Tr. 57-58), meaning that the Bureau does not believe that it can identify the fire's cause with 100% certainty (id.), the evidence submitted in connection with the motions before the Court reveals these facts: On March 19, 2001, at about 8:30 a.m., Daniel Paduano left apartment 11A for his office. (D. Paduano Aff. ¶ 3.) That morning, from about 8:30 to 10:30 a.m., his wife Nancy sat at a desk in the "Middle Bedroom," which she uses as an office while her son is away at school, paying bills. (N. Paduano Aff. ¶¶ 4, 8.) On the desk "were various items including a phone, a desk lamp, papers, checkbooks, matchbooks, calendars, paper weights, reading glasses, pens, pen cups and two or three candles" (id. ¶ 6), and "[e]very conceivable inch [of the Middle Bedroom] was covered with papers." (Steir Aff., Ex. 21.) At about 11:30 a.m., she left the apartment to meet Mr. Paduano at a museum. (N. Paduano Tr. 32.) Only Luz Vallecillo, the Paduanos' housekeeper, then remained in apartment 11 A. (Id. 34.)
The south side of the Paduanos' apartment contains three adjacent bedrooms: "The bedroom on the right is the master bedroom, the bedroom on the left is [the Paduanos'] son John's bedroom[,] and the bedroom in the middle is [their] son Danny's bedroom (the 'Middle Bedroom'). While . . . Danny is away at school, [Mrs. Paduano] use[s] the middle Bedroom as an office." (N. Paduano Aff. ¶ 4.)
Vallecillo testified that sometime in the late morning, while "ironing clothes in the maid's room, [she] heard the doorbell ring, " and "[a]s [she] proceeded to answer the front door, [she] noticed that there was a fire in the Middle Bedroom." (Vallecillo Aff. ¶ 4.) Arthur Xanthos, the man at the front door (id.), stated that Louise Beit, a resident of the building, and Hasan Bagraktarevic, the doorman, came out of the building elevator several minutes earlier and approached him.
Mrs. Beit told me she smel[led] something burning upstairs. . . . My doorman had just delivered a package to 11 A, and he also stated that he smel[led] something burning. Hasan left the package outside of 11A as the tenants were not home. When they both told me this I went to apartment 11A with Hasan . . . and rang the bell. . . . As I was waiting at the door of 11AI heard someone say "Oh my god fire." Upon hearing this I immediately entered the apartment. I walked into the gallery and saw the housekeeper standing in the gallery facing the middle bedroom. I saw the desk in front of the window was ablazed [sic]. The top of the desk had bright yellow flames on it.
(Xanthos Stmt. 1-2, annexed to Driscoll Aff.) According to Xanthos's written statement, these events occurred at about 12:40 p.m. (id.); according to his deposition, "[i]t was morning, eleven-ish." (Xanthos Tr. 35.) The former time appears to be correct because a logbook maintained by the building's employees shows that Bagraktarevic delivered the package referred to by Xanthos to the Paduanos' apartment at 12:40 p.m., and the Fire Department first received an alarm about the fire at 12:53 p.m. (Katz Aff, Exs. U, J.)
The Department responded promptly, arriving at the building by 12:57 p.m. (Id., Ex. J.) It is not clear to what stage the fire had progressed by that time. Raymond Wick, one of the first firefighters to arrive on the scene, recalled "looking up and seeing dark windows" at the time of his arrival, and he testified that "blacked-out windows" generally indicate that a firelias reached an advanced stage. (Wick Tr. 130-31.) But Christopher Dougherty, who arrived subsequently, said that at that time "[t]here was no visible fire." (Dougherty Tr. 31.) At some point, according to the Fire Department's final report, the fire spread to apartment 12A "via [a] pipe recess in the middle bedroom and extended to [an area of the] floor surrounding this recess." (Katz Aff., Ex. K.) Fire Marshal Seamus Ward, who prepared the final report, testified that the fire likely spread to Weber's apartment " close to [its] extinguishment time." (Ward Tr. 299). The Department's Form BF-24 Report indicates the "Incident Duration" of the fire as three hours (Katz Aff, Ex. J), but it is unlikely that the fire continued to burn for that duration. Ward testified that by 3:15 p.m., his partner had started to "dig out" the fire, meaning to shovel and sort through the fire debris in an effort to determine the fire's cause. (Ward Tr. 195-97) Presumably, it had been extinguished some time before this process began.
The Department's Form BF-24 Report indicates the "condition on arrival" as "open flame." (Katz Aff., Ex. J.) It is not clear, however, that "open flame" and "visible fire, " as Dougherty used the latter phrase, have the same meaning.
III. The Investigation
The Fire Department assigned Ward to investigate the cause of the fire. (Ward Tr. 13-14.) On March 19, 2001, Ward interviewed Wick, Vallecillo, Mrs. Paduano, and Xanthos. (Katz Aff, Ex. J at 1-2.) Mrs. Paduano stated that on that morning she had been
at the desk in the room doing some paperwork. She is sure that there was [sic] not any lights on in the room because it was a bright morning. The desk she works at had a desk lamp and there was a floor light also near the desk. These lights were plugged into a power strip on the floor at the right of the desk which was situated in the middle of the wall with the window.
(Id. 2.) She did not mention any candles during the March 19, 2001 interview. (Ward Tr. 103.) Vallecillo and Xanthos told Ward that they first saw the fire on the desk in the Middle Bedroom. (Katz Aff., Ex. J at 1-2.) Based on the information he gathered on March 19, Ward testified, he "originally believed that the fire was probably caused by heat from electrical equipment" (Ward Tr. 132), and his first draft of the fire report, in which "NFA [not fully ascertained]-Heat from electrical equipment" is written in the box marked "Cause of Fire, " reflected this belief. (Weiss Aff, Ex. K.) When he prepared that draft "on the night of the fire" (Ward Tr. 282), he thought that "[t]he cause of the fire was electrical" (Id. 209) because he "did not find the power strip that was stated by Mrs. Paduano to be there." (Id. 282; see also id. 207-209.)
On March 20, 2001, Chubb and Atlantic Mutual, two insurance companies representing building tenants not parties to this litigation, retained Thomas Russo Associates, a private firm, to investigate the cause of the fire. (Russo Tr. 83; see Steir Aff, Ex. 23) Michael Russo, the assigned investigator, visited the fire site three times, on March 22, March 27, and April 4, 2003, and he conducted interviews, some by telephone, others at the site, with Mrs. Paduano, Xanthos, Vallecillo, and Bagraktarevic. (Russo Tr. 158; Russo Report 4-14.) At his deposition, Russo described his initial interview with Mrs. Paduano:
When Chubb and Atlantic Mutual retained Russo, they represented, respectively, the interests of tenants Howard Johnson and Anthony and Ecetra Ames (Russo Tr. 89, 91), although Chubb also insures, among others tenants, the Paduanos. (Id. 84.)
[I]t was brief because they [Mr. and Mrs. Paduano] said they really couldn't talk, okay, and Nancy, what she did was she reconstructed for me that bedroom and she did so in the likes of a diagram on a scratch pad. . . . I asked her if she was burning any candles either on the desk or in the area. She paused and said, "I don't believe so." At that point, Daniel interjected and said, "You were not burning any candles, she was not burning any candles. We have to leave, I can't answer any further questions."
(Russo Tr. 148-49; see also Russo Report 3-4.) Russo interviewed Mrs. Paduano a second time, in part because during the first interview, "she didn't indicate to [him] that there w[ere] candles on the desk" (Russo Tr. 179), yet in a pre-fire inventory drawing of the apartment provided to a restoration company by Mrs. Paduano, she indicated three candles on the desk. (Id. 179-80.) Russo brought this to her attention during the second interview. Mrs. Paduano replied that the candles "belonged to her son." (Russo Report 5.) She said that while she does burn candles in the apartment, she had not been burning any candles on the morning of the fire, and when she does burn them, she does so "in the bathrooms and the hallway." (Id.) Russo felt he should "look into it further." (Russo Tr. 180.) He therefore inquired of Vallecillo whether on the morning of the fire she had seen candles on the desk. (Id. 186.) Vallecillo told him she did not understand the word "candle, " at which point Russo enlisted the aid of a translator fluent in Spanish. Vallecillo then understood and said that "there were no candles on the desk and she's never seen Mrs. Paduano burn candles in the apartment." Russo commented on this statement skeptically at his deposition, observing that "[Vallecillo's] been there four years. Mrs. Paduano indicated she burned candles. We found physical evidence of 28 candles." (Id.;see also id. 278; Russo Report 8.) Based on the evidence he gathered (Russo Tr. 278), Russo concluded that "[c]andles [we]re really the only competent ignition source." (Id. 279; see Russo Report 14-18.) The absence of candle remnants did not cast doubt on this conclusion because, Russo testified, they would have been destroyed by the fire. (Russo Tr. 265.)
A few weeks after the fire, Russo spoke with Fire Marshal Ward. Ward testified that he had known Russo for about eighteen months. Because of the common nature of their work, the two discuss fire investigations relatively frequently. (Id. 215-16.) Russo explained to Ward why Russo believed that candles had caused the fire at 19 East 72nd Street. (Id.) Ward "decided then to ask [Mrs. Paduano] . . . about the candles" because she had "neglected to tell [him] that on the 19th [the date on which Ward initially interviewed her]." (Ward Tr. 103.) After this interview, and Ward's subsequent reanalysis of the evidence, he came to agree with Russo that candles were the most likely cause of the fire. (Id. 104, 132.) Ward reported that during his second interview with Mrs. Paduano, she
state[d] that there were three candles on the desk, but "she honestly believes that she did not light them that morning" [as] there was no reason to light them because she usually only lights them when there is an unpleasant odor around. . . . She has tried her hardest to remember, but she cannot remember walking to the gym that day which she must of [sic] done because her scheduled time to play tennis that morning was canceled.
(Katz Aff, Ex. L at 2.) Ward testified that he included the information about the gym because he thought it "significant" that Mrs. Paduano did not "remember things that clearly that morning" (Ward Tr. 107), and this fact influenced his ultimate conclusion that the fire most likely had been caused by open candle flames. (Id. 165.) Ward testified that he did not necessarily believe Mrs. Paduano to be lying; her failure to mention candles at the first interview might rather be ascribed to "a mental block" or "embarrass[ment]." (Id. 239.). But in any event, in the Department's final report, which Ward's supervisor approved, Ward listed the cause of the fire as "NFA [not fully ascertained]-Heat from open flame (candles)." (Katz Aff, Ex. K; Ward Tr. 149, 236.)
IV. The Alleged Building Violations
On March 20, 2001, one day after the fire, Globert Travilla, a firefighter with the New York City Fire Department's Bureau of Fire Prevention, issued a "Violation Order" to 19 East 72nd Street Corporation, citing three violations of the Administrative Code of the City of New York and ordering that they be cured within sixteen days. (Building Ds. Br. 6; Katz Aff, Ex. K.) The Order required, first, that stairwell doors throughout the building be "readily openable . . . from both sides without the use of a key"; second, that those doors be "properly labeled"; and third, that "emergency lights [be] properly working throughout [the] building." (Id.) None of the cited violations correspond precisely to those alleged by Weber to have caused or contributed to the damage to her apartment. (See Compl. ¶¶ 41-46.) Weber argues, however, that the Building Defendants' negligence delayed the firefighters' response time or hindered their ability to put out the fire quickly. Specifically, she contends that the evidence indicates that certain mislabeled and locked stairwell doors, which the firefighters were required to force, and the alleged absence of a proper smoke alarm in the Paduanos' apartment, for which the Building Defendants allegedly bear responsibility, enabled the fire to spread more rapidly to her apartment and to burn for a longer time than it otherwise would have. (See P. Br. in Opp. to Building Ds. Mot. 10-18.) To sustain these allegations, Weber offers the testimony of several firefighters, who may qualify as experts for certain purposes, but she did not retain an independent expert, as did the Paduanos and the Building Defendants. Relevant testimony will be reviewed below.
V. The Lease and Clean-Up Costs
After the fire, the Building Defendants retained Maxons Restorations, Inc. ("Maxons") to perform certain fire clean-up and restoration work. Weber contends that Maxons was retained to restore both common areas and individual shareholders' apartments. (P. Rule 56.1 Stmt. ¶ 8.) The Building Defendants deny this allegation. (Building Ds. Reply to P. Rule 56.1 Stmt. ¶ 8.) In opposition to Weber's motion, they submitted the affidavit of Howard White, Executive Vice President of Maxons. White testified that the Building Defendants retained Maxons to clean and restore "common areas, " but not "personal property, improvements and betterments within shareholder apartments." (White Aff. ¶ 3.) White also testified that about twenty shareholders, including Weber and the Paduanos, independently retained Maxons to clean and restore certain personal property. (Id. 5.) Weber paid Maxons for this work. (P. Rule 56.1 Stmt. ¶ 14.) Based on an excerpt from the deposition of Noreen McKenna, a corporate representative of the Building Defendants, in which McKenna allegedly concedes that the shareholders' leases require the building to pay for their personal clean-up costs, Weber moves for partial summary judgment. She argues that as a matter of law, the Building Defendants have conceded liability under Weber's proprietary lease and therefore must reimburse her the sum she paid to Maxons. The Building Defendants (and McKenna) dispute that McKenna's testimony can or should be construed as a concession of liability. (See McKenna Aff.) It cannot be disputed, however, that in her complaint, Weber alleges neither a contractual claim nor a claim for strict liability in tort against either of the Building Defendants.
DISCUSSION
I. The Paduanos' I2(b)(1) Motion
A. Standard on a 12(b)(1) Motion
On a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the defendant "may challenge either the legal or factual sufficiency of the plaintiffs assertion of jurisdiction, or both, " and how the Court should "resolve the motion to dismiss depends upon whether the motion presents a factual challenge." Robinson v. Government of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (citations and internal quotation marks omitted). Where "the defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Id. (citations and internal quotation marks omitted). But where, as here, the defendant challenges jurisdictional facte, "the court may inquire by affidavits or otherwise, into the facts as they exist." Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947); see also Robinson, 169 F.3d at 140; Kamen v. Am. Tel Tel Co., 791 F.2d 1006, 1010-11 (2d Cir. 1986); Exchange Nat'l Bank v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976). The plaintiff must submit evidence sufficient to establish prima facie jurisdiction, Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994), and in assessing that evidence, the Court must "construe jurisdictional allegations liberally and take as true uncontroverted factual allegations."Id.
B. Analysis
The Paduanos, New York domiciliaries, argue that the Court lacks diversity jurisdiction because Weber, they allege, is also a New York domiciliary. Title 28 U.S.C. § 1332(a)(1) vests the federal courts with jurisdiction over civil actions between citizens of different states, where the amount in controversy exceeds $75,000, exclusive of interest and costs. Domicile determines a person's state citizenship for purposes of § 1332. Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). Domicile is "the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it may be determined, " Williamson v. Osenton, 232 U.S. 619, 625 (1914), or the "place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Linardos, 157 F.3d at 948 (internal quotation marks omitted). To determine a person's domicile, the Court therefore must examine two factors: first, the nature and extent of that person's physical presence in the state alleged to be his or her domicile; and second, his or her intent to remain there indefinitely.Miss. Band of Choctow Indians v. Holyfield, 490 U.S. 30, 48 (1989); Texas v. Florida, 306 U.S. 398, 424 (1939) ("Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile')")
Weber alleges that she is a citizen of Florida (Compl. ¶ 1), and as the party who invoked diversity jurisdiction, she bears the burden of proving the facts necessary to sustain it. Thomson v. Gaskill, 315 U.S. 442, 446 (1942). Weber must therefore introduce evidence of her physical presence in Florida and her intent to remain there indefinitely.Holyfield, 490 U.S. at 48. The Paduanos focus on Weber's characterization of her Hobe Sound home in Florida as a "resort vacation home, " at which she spends about four months per year, generally in the winter (Weber Tr. 13; Paduano Br. 3-4, 16-17), and they cite cases for what they contend is the general principle of law that a vacation home, by nature, cannot be a domicile. (Id. 16-17.) None of the cases they cite support that proposition. Rather, Hicks v. Brophy, 839 F. Supp. 948 (D. Conn. 1993), also cited by the Paduanos, clearly states the correct rule: "[T]he court uses a totality of the evidence approach, and no single factor is conclusive." Id. at 951 (internal quotation marks omitted). Factors indicative of physical presence and intent to remain in a state indefinitely include
In Henderson v. Flooreraphics. Inc., 153 F. Supp.2d 133 (D. Conn. 2001), the court found that the plaintiff's ownership of a vacation home in New Jersey did not sufficed make him a New Jersey citizen, because he owned a home, voted, and paid his taxes in Connecticut, where, in addition, his children attended school. See id. at 135. In Hicks v. Brophy, 839 F. Supp. 948 (D. Conn. 1993), similarly, the court sustained the plaintiffs claim to New York citizenship despite his ownership of two vacation homes in Connecticut. See id. at 952-53. And in Wolgin v. Smith, No. 94 Civ. 7471, 1995 WL 434395 (E.D. Pa. July 20, 1995), the court found that the plaintiff's ownership of a vacation home in New York, where he spent a few months each year, did not cast doubt on his intent to remain in Florida. None of these cases state or imply that the mere characterization of a residence as a "vacation home" makes the location of that home, by definition, not the owner's domicile.
voting registration and voting practices; location of personal and real property; location of brokerage and bank accounts; membership in unions, fraternal organizations, churches, clubs, and other associations; place of employment or business; driver's license and automobile registration; payment of taxes; as well as several others.
13B Charles Alan Wright, et al., Federal Practice and Procedure § 3612, at 530-31 (2d ed. 1984).
Weber introduced testimonial and documentary evidence to establish that she owns two homes and a farm in Florida; that she operates her principal business interests and maintains her business office there; and that she votes, registers her cars, and pays her taxes in Florida. While Weber's peripatetic lifestyle makes the determination of her domicile less straightforward than it might otherwise be, these facts strongly support her assertion that she is a Florida domiciliary. (Weber Aff. ¶ 10.) The Court will, if necessary, ultimately resolve the issue of Weber's domicile after a full evidentiary hearing. But at this juncture, discovery having been completed, the great weight of the evidence appears to substantiate Weber's claim to be domiciled in Florida. Except for the existence of her two New York residences, which can hardly be deemed conclusive given that Weber owns two other residences and a farm in Florida, the Paduanos have introduced no evidence indicating that Weber's domicile is New York. Absent a strong showing that the Court cannot credit Weber's testimony or rely on the documentary evidence she has submitted, it seems doubtful that the Paduanos will ultimately prevail on their jurisdictional challenge. In any event, on the present record, the evidence more than suffices to defeat the Paduanos' motion to dismiss for lack of subject matter jurisdiction.
II. The Motions for Summary Judgment
A. Standard for Summary Judgment
Summary judgment must be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law"; an issue of fact is genuine where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor.Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).
To defeat summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated assertions" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'") (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968)).
B. The Paduanos' Motion
The Paduanos argue that summary judgment in their favor is appropriate for two related reasons: (1) the evidence does not enable a reasonable juror to determine the cause of the fire with certainty; and (2) Weber failed to designate an expert to support her theory of causation. (Paduano Br. 19-24.) According to the Paduanos, "[i]t is well settled [sic] law that if the cause of the fire cannot be determined, the defendant is entitled to summary judgment, and the Court will dismiss the plaintiff's complaint." (Id. 20.) This is a misleading characterization of the cases they cite. To be sure, if the plaintiff fails to introduce evidence from which a reasonable juror could conclude that the defendant's negligence proximately caused the fire, the defendant merits summary judgment. That general principle is all that the cases cited by the Paduanos establish. See Zalondek v. Laudato, 667 N.Y.S.2d 455, 456 (3d Dep't 1998) (granting summary judgment to defendant where an expert affidavit submitted by plaintiff, the sole evidence in opposition to defendant's motion, relied on facts not supported by evidence in the record, and even were it based on competent evidence, failed to establish any negligence under the relevant industry standards); Mittendorf v. Brooklyn Union Gas Co., 600 N.Y.S.2d 123, 124 (2d Dep't 1993) (granting summary judgment to gas company and landlord sued for damages caused by an explosion in plaintiff's apartment where the fire marshal could not determine its cause, and even if it had been caused by a gas leak, as a matter of law, neither defendant could be liable because neither had received notice of the alleged defect); Valenti v. Purdy, 420 N.Y.S.2d 406, 407 (2d Dep't 1979) (granting summary judgment where plaintiff's sole evidence in opposition consisted of an attorney affidavit made without personal knowledge of the facts). In New York Central Mutual Insurance Co. v. Turnerson's Electric, Inc., 721 N.Y.S.2d 92 (2d Dep't 2001), which the Paduanos characterize as "dispositive of this motion" (Paduano Br. 21), the Second Department held that an affidavit of the plaintiff's investigator, "who had no formal education beyond high school and limited training in the area of fire analysis" and who destroyed evidence of the fire at the behest of plaintiff's insurance claims adjuster, could not suffice to defeat summary judgment. See id. at 93-94. The facts in the present case can hardly be deemed analogous to Turnerson's Electric.
Here, Ward, the fire marshal assigned to investigate the cause of the fire, concluded that candles were the "most likely" cause of the fire. (Ward Tr. 58.) The Paduanos' wrongly assert that Ward "admitted. . . that he did not feel strongly that candles caused the fire." (Paduano Br. 24.) But Ward clearly explained that "NFA, " the abbreviation for "not fully ascertained," must be included whenever a fire investigator does not feel he can state the cause of a fire with 100% certainty. (Ward Tr. 58.) Ward thus "admitted" only that he did not feel so certain that candles caused the fire as to justify omitting the common qualifier "NFA." (Id.) His fire report therefore remains competent evidence of causation from which a reasonable juror could infer that candles more likely than not caused the fire. Furthermore, Russo, a private investigator not hired by Weber, found candles to be "the only competent ignition source." (Russo Tr. 279.)
Russo investigated the fire on behalf of two insurance companies, Chubb and Atlantic Mutual, the former of which insures, among others, the Paduanos (Russo Tr. 84, 89, 91), and Russo testified, perhaps for that reason, that "Chubb probably wasn't too happy with [his] findings." (Id. 93.) That Ward changed his conclusion about the fire's cause based in part on his conversations with Russo goes only to the credibility of Ward's conclusion. Credibility, of course, remains a quintessential jury question; it is not a question of law properly resolved on a motion for summary judgment. In any event, no evidence suggests that Ward changed his conclusion about the fire's cause because of any improper consideration, rather than because he was persuaded by Russo's conclusions. Ward testified that Russo never asked him to change his conclusion about the origin of the fire. (Ward Tr. 223.) Nor, so far as the record suggests, would Russo have had any reason to do so.
True, as the Paduanos emphasize, competing inferences about the cause of the fire can be drawn from the evidence on the record. (Paduano Br. 24.) Far from vindicating their motion for summary judgment, however, the existence of competing inferences mandates its denial. See United States v. Diebold. Inc., 369 U.S. 654, 655 (1962); accord, Warner v. N.Y., Ontario, and W. Ry. Co., 204 N.Y.S. 607, 609 (4th Dep't 1924) ("It is the province of the jury, not only to pass upon conflicting evidence, but where different inferences may be drawn from the evidence, to draw the inferences."). Weber need not show that the evidence supports no other inference than that the Paduanos negligently left candles burning, causing the fire that damaged her apartment. Rather, "to withstand summary judgment, [she] need only raise a triable issue of fact regarding whether defendant[s'] conduct proximately caused [her] injuries." Burgos v. Aqueduct Realt Corp., 92 N.Y.2d 544, 550 (1998). In Schneider v. Kings Highway HOST. Or., Inc., 67 N.Y.2d 743 (1986), the New York Court of Appeals explained that
[t]o establish a prima facie cause of negligence based wholly on circumstantial evidence, it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence. Rather, her proof must render those other causes sufficiently "remote" or "technical" to enable the jury to reach its verdict based not upon speculation, but upon logical inferences to be drawn from the evidence.Id. at 743 (internal citations, quotation marks, and brackets omitted);see also Burgos, 92 N.Y.2d at 550; Merino v. Left Nine. Inc., 685 N.Y.S.2d 363, 364 (4th Dep't 1999). If a jury credits the testimony of either Russo or Ward, or both, it could find that candles negligently left burning in the Paduanos apartment caused the fire that damaged Weber's apartment. Also, two witnesses, Xanthos and Vallecillo, testified that they first saw the fire burning on Mrs. Paduano's desk in the Middle Bedroom, evidence that tends to weaken the inference that, as Ward initially believed, an electric or other source on the floor caused the fire. Finally, Mrs. Paduano conceded that there were three candles on the desk on the morning of the fire, albeit denying that she lit them. Viewing the evidence in the light most favorable to Weber and drawing all reasonable inferences in her favor, see Anderson, 477 U.S. at 255, a juror could reasonably conclude that it is more likely than not that the Paduanos' negligence, rather than "some other agency," caused the fire.Gayle v. City of New York, 92 N.Y.2d 936, 937 (1998): see also Warner, 204 N.Y.S. at 609.
The Paduanos also appear to suggest that Weber's claims must be denied as a matter of law because she failed to designate an expert to testify on proximate causation. (Paduano Br. 23-24.) Expert testimony, however, is only required where "the subject-matter to be inquired about is presumed not to be within common knowledge and experience." Meiselman v. Crown Heights Hosp. 285 N.Y. 389, 396 (1941). That is not necessarily the case here. While expert testimony may well bolster Weber's theory of the Paduanos' negligence, the parties have cited no case law that suggests, in the words of the Building Defendants, that Weber's "failure to offer an expert opinion . . . is fatal to her cause of action." (Building Ds. Reply Br. 5.) In fact, in "many if not most" early common-law cases, courts excluded expert testimony on the cause of fires, both because they presumed juries capable of determining the cause of a fire on the basis of ordinary experience and because "expert testimony went to the very heart of the matter, as the testimony usually decided the issue of whose fault caused the fire, and thus it invaded the jury's province." 84 A.L.R. 69, at § 2 (5th ed. Supp. 2003). Modern case law, by contrast, tends to adopt the more liberal approach of the Federal Rules of Evidence, which permit expert testimony if it would be helpful to the jury, even if that testimony embraces an ultimate issue to be decided by the jury. See id.; Fed.R.Evid. 704(a); accord Vigilant Ins. Co. v. Rippner Elec. Constr. Corp., 601 N.Y.S.2d 137, 138 (2d Dep't 1993) (reversing trial court's dismissal of plaintiff insurer's civil action to recover monies paid to insured for fire damages pursuant to a homeowner's policy, where that court had refused to permit a fire investigator and an engineer to opine on the cause of the fire, because under New York law, experts may testify not only about facts, but about "conclusions to which they lead . . . even if one such conclusion answers an 'ultimate question' in the case"). Both early and modern case law thus speak only to the admissibility of expert testimony in civil actions for fire damages; no case cited to the Court holds that a plaintiff cannot prosecute such a case without an expert. And in any event, Weber has proffered Ward and Wick as experts (Weber Response to Building Ds. Rule 56.1 Stmt. ¶ 33), and it seems likely that their knowledge and experience will qualify them for this purpose under Fed.R.Evid. 702.See, e.g., Frazier v. Continental Oil Co., 568 F.2d 378, 383 (5th Cir. 1978); McCoy v. Whirlpool Corp., 214 F.R.D. 646, 650 (D. Kan. 2003);Smith v. Ford Motor Co., 882 F. Supp. 770, 772-74 (N.D. Ind. 1995); cf. Eagle Pet Serv. Co. v. Pac. Employers Ins. Co., 572 N.Y.S.2d 623, 624 (3d Dep't 1991).
While plaintiffs generally elect to proffer expert testimony to prove proximate causation in civil actions based on fire damages, it is not clear that, as a matter of law, they must. Sometimes, the question whether one agency as opposed to another caused a fire may well lie "within the experience and observation of the ordinary jurymen from which they may draw their own conclusions[,] and the facts [may be] of such a nature as to require no special knowledge or skill." Meiselman, 285 N.Y. at 396: see also Farvniarz v. Nike, Inc., No. 00 Civ. 2623, 2002 WL 530997, at *2 (S.D.N.Y. Apr. 8, 2002) ("Expert testimony is only necessary if the witness 'cannot provide evidence of causation.").
Summary judgment also must be denied because the evidence raises genuine issues about witness credibility, which remain the exclusive province of the jury. Haves v. N.Y. City Dep't of Corr, 84 F.3d 614, 619 (2d Cir. 1996). Mrs. Paduano denies that she lit candles on the morning of the fire. But her responses to questions about the candles asked of her by different people at different times could reasonably arouse some suspicion, as indeed they did for both Russo and Ward. (See Russo Tr. 179-80; Russo Report 15-16; Ward Tr. 104, 107, 165, 239.) In her initial interview with Ward, Mrs. Paduano did not mention candles. In her initial interview with Russo, she said that she did not believe she had lit any candles on the morning of the fire. At that point, according to Russo, Mr. Paduano interjected, answered Russo's question himself, and fervently denied that Mrs. Paduano had been burning any candles on the morning of the fire, even though, as Russo noted, Mr. Paduano had been at the office and therefore could not know firsthand what his wife had done that morning. (Russo Report 16.) Russo reinterviewed Mrs. Paduano because he learned that Mrs. Paduano had indicated three candles in an inventory drawing she supplied to a restoration company. She then told him that she sometimes burns candles; "however, she burns them in the bathrooms and the hallway." (Id. 5.) When Ward reinterviewed Mrs. Paduano, she said that she lights candles in the kitchen to cover unpleasant food odors, and for that reason, she "'honestly believes that she did not light them that morning'" because she recalls no odors and remembers that she had opened a window. (Katz Aff, Ex. L at 2.) Ward felt that this statement, while not necessarily a lie, could be ascribed to "a mental block" or "embarrass[ment]." (Ward Tr. 239.) When Russo reinterviewed Vallecillo, she denied having ever seen Mrs. Paduano light candles in the apartment. Russo questioned, if not discredited, this denial because of Vallecillo's four-year tenure with the Paduanos, during which time, in the performance of her housekeeping duties, she presumably would have become aware that Mrs. Paduano sometimes lights candles. Russo's investigation also disclosed physical evidence of twenty-four candles in the Paduanos' apartment. (Russo Tr. 186.)
Viewing these facts in the light most favorable to Weber and drawing every reasonable inference in her favor, sufficient evidence exists from which a reasonable juror could discredit the testimony of several key witnesses for the Paduanos. Should the jury make adverse credibility findings, it could reasonably conclude that Mrs. Paduano had been burning candles on the morning of the fire. It is axiomatic that the Court "do[es] not sit to judge witness credibility on a motion for summary judgment." Neidich v. Estate of Neidich 222 F. Supp.2d 357, 368 (S.D.N.Y. 2002).
Finally, if the jury finds that Mrs. Paduano left candles unattended on the morning of the fire, and that those candles caused the fire, it must decide whether she thereby failed to exercise the duty of care required of her by New York law, that which would be exercised by a reasonably prudent person under the circumstances. Should Mrs. Paduano "have realized that [because of her acts] certain interests of certain persons were unreasonably subjected to a general but definite class of risks"? Payne v. City of New York, 277 N.Y. 393, 395 (1938) (internal quotation marks omitted); see also Dance v. Town of Southampton, 467 N.Y.S.2d 203, 206 (2d Dep't 1983) ("Under common law, a person is negligent when he fails to exercise that degree of care which a reasonably prudent person would have exercised under the same circumstances."). Negligence presents a mixed question of fact and law. Martin v. Walker Williams Mfg. Co., 198 N.Y. 324, 328 (1910). Accordingly, this issue, too, remains within the province of the jury.
Because the factual record remains replete with genuine issues of material fact, the Paduanos' motion for summary judgment is denied.
C. The Building Defendants' Motion
Weber's claim against the Building Defendants, by contrast, fails as a matter of law. She has not adduced evidence from which a reasonable juror could infer that any negligence on their part either caused or contributed materially to the damage to her apartment. Weber's complaint alleges that the Building Defendants were negligent, specifying five acts or failures to act that allegedly caused or contributed to the damage to her apartment. (Compl. ¶¶ 40-46; 49-55.) Now that discovery is complete, she specifies several others, for example, that locked and mislabeled stairwell doors delayed the Fire Department's response time and impeded its ability to put out the fire with maximum efficiency. (Weber Br. in Opp. to Building Ds. Mot. 8-9.) Weber is correct that on the present record, genuine issues of material fact remain as to the existence of some of these alleged negligent acts or omissions, for example, whether an operational smoke detector was properly mounted in the Middle Bedroom of apartment 11 A. (P. Br. in Opp. to Paduano Mot. 23.) But the record is devoid of any basis from which to infer that the Building Defendants' alleged negligence, even if proved, caused or contributed materially to the damage to Weber's apartment. No testimonial or documentary evidence suggests that any of the acts of negligence alleged by Weber in fact impeded the Fire Department's response time or ability to put out the fire quickly, and the jury lacks a non-speculative basis to conclude otherwise.
Weber conceded at her deposition that she does not know (or cannot recall) the factual basis for these specific allegations. (Katz Aff, Ex. E at 375-81.)
Two of Weber's allegations can be dismissed at the outset. First, Weber no longer avers that a faulty electrical connection created or allowed to exist by the Building Defendants caused the fire. (Compl. ¶¶ 41, 50; P. Response to Building Ds. Rule 56.1 Stmt. ¶ 23.) See Local Civil Rule 56.1(c). Second, no evidence suggests that the Building Defendants' alleged failure to provide "adequate safety instructions in the event of a fire . . . caus[ed] the rapid spread of the fire and smoke through Apartments 11A and 12A." (Compl. ¶¶ 43, 52.) The remaining claims in Weber's complaint, as well as those advanced in her brief, can be grouped into two categories: alleged problems with the stairwells, and the alleged absence of a smoke detector in the Middle Bedroom of the Paduanos' apartment. As a preliminary matter, the Court rejects Weber's assertion that insofar as the Building Defendants violated New York City's Administrative Code, they bear liability for negligence per se, (P. Opp. to Building Ds. Mot. 11.) While the Administrative Code "has all the force of a statute" in New York City, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 565 n. 3 (1987) (internal quotation marks omitted), and while "[a]s a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability, "Elliott v. City of New York, 95 N.Y.2d 730, 734 (2001), "[w]hether a section of the Administrative Code has the force of statute with respect to application does not determine its tort consequences." Id. at 735-36;see also id. at 734-35 (explaining the rationales for treating violations of municipal ordinances differently from violations of state statutes for purposes of tort law). In general, "violation of a municipal ordinance constitutes only evidence of negligence." Id. at 734.
As noted above, on March 20, 2003, the day after the fire, the Fire Department issued a violation order to 19 East 72nd Street Corporation, ordering that it cure three violations of the Administrative Code of the City of New York. (Katz Aff., Ex. M.) In particular, the Department ordered that the building ensure that all stairwell doors be "readily openable from both sides without the use of a key"; that "all stairwell doors be properly labeled"; and that "all emergency lights [be] properly working." (Id.) Weber does not argue that the absence of proper emergency lights delayed the notification of, or ability of the Department promptly to respond to, the fire, thereby increasing its duration or the severity of the damage to her apartment. The former two violations fall within the category of allegations related to the stairwells.
Weber cites the Elliott for the proposition that "certain sections of the Administrative Code have their origin in State law and, as such, they might be entitled to statutory treatment in tort cases." 95 N.Y.2d at 736 (internal citations omitted). (P. Opp. to Building Ds. Mot. 11.) But the Court of Appeals emphasized that "characterizing the vast multitude of ordinances that have been adopted by New York City as State statutes would result in considerable fragmentation and uncertainty in the application of the common law of our State, " and that "extending statutory status to local ordinances in negligence cases would create a patchwork of the common law."Id. at 736 n. 3. While the court in Elliott did not entirely exclude the possibility that violations of certain Code provisions might justifiably be deemed negligence per se, it strongly counseled against that presumption in the absence of a compelling consideration of policy. Weber offers no authority or argument to support the view that any of the Code violations at issue in this case, for example, those relating to smoke detectors or the location of stairwell doors, should be treated as statutory for purposes of tort law. Even if she did, negligence per se does not, in any event, impute liability per se, Proof of proximate causation is still necessary. Sheehan v. City of New York, 40 N.Y.2d 496, 501 (1976); Phass v. MacClenathen, 85 N.Y.S.2d 643, 646 (3d Dep't 1948) ("[N]eglect of a statutory duty does not establish negligence, presumptively or otherwise, unless it is shown that obedience to a statute would have obviated the injury.").
To defeat the Building Defendants' motion for summary judgment, Weber must therefore show more than facts from which a reasonable juror could find negligence; she must also adduce evidence of proximate causation.Sheehan, 40 N.Y.2d at 501. "Proximate cause" does not admit of precise definition because it "stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct." Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 314 (1980); see also O'Neill v. City of Port Jervis, 253 N.Y. 423, 433 (1930) ("Legal or proximate cause is always dependent upon the facts of a particular case, and it is for this reason that the words are beyond definition or conclusive explanation.") Nevertheless, it has been variously defined as "that which, in a natural sequence, unbroken by any new cause, produces [an] event, and without which that event would not have occurred, " Rider v. Syracuse Rapid Transit Ry. Co., 171 N.Y. 139, 147 (1902), or more liberally, as "a substantial causative factor in the sequence of events" culminating in the plaintiffs injury. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520 (1980). Hence, to make out a prima facie case of proximate cause that can survive summary judgment, Weber must show, at a minimum, that the Building Defendants' negligence was a substantial cause of the damages she sustained. See Derdiarian, 51 N.Y.2d at 315. No evidence on the record supplies a basis for that finding with regard to either the alleged absence of a smoke detector or the various alleged stairwell violations.
No witness has testified that the absence of a smoke detector had any effect whatever on the Fire Department's response time. Weber asserts that "[w]orking smoke detecting devices in Apartment 11A on the day of the fire would have alerted Ms. Vallecillo and consequently the fire department of the fire sooner, resulting in less damages to Mrs. Weber's apartment." (P. Opp. to Paduano Mot. 25; see also P. Opp. to Building Ds. Mot. 16) But the sole evidence she cites to corroborate this assertion is the testimony of Wick, who simply confirmed the commonsensical notion that if a smoke detector alerts someone to the existence of a fire earlier, then "a quicker call to the Fire Department [will] usually [be] made, " enabling the Department to put out the fire at an earlier stage. (Wick Tr. 39.) Wick did not testify that in this case the smoke detector in the Paduanos' apartment, had it been there and properly functioning, would have alerted Vallecillo to the fire before she in fact noticed it. Nor does the record contain any evidence of how smoke detectors work or how soon smoke would ordinarily be expected to trigger one. Presumably, engineers design smoke detectors to ensure that beneath some threshold degree of smoke or heat, they will not be triggered, such that, for example, smoke from a minor cooking fire — or, for that matter, a candle — will not set them off needlessly.
While Weber introduces enough evidence to raise an issue of fact as to the presence or absence of a smoke detector in the Paduanos' apartment (P. Opp. to Building Ds. Rule 56.1 Stmt. ¶ 25), substantial evidence, including a report of the Fire Department (Katz Aff, Ex. J.;see also N. Paduano Tr. 143-44), suggests that one existed in the Middle Bedroom, and no evidence suggests that it malfunctioned. Still, the Court assumes for purposes of the Building Defendants' motion that the jury would find that the Building Defendants negligently failed to install a smoke detector in the Middle Bedroom of the Paduanos' apartment.
The theory that smoke from the fire would have triggered a smoke detector before Vallecillo saw the fire is based on mere speculation. No evidence suggests that under the circumstances of this fire, the presence of a smoke detector would have alerted the Fire Department to the fire before the Department in fact learned of it from building employees. Weber argues that this issue must nevertheless be submitted to the jury (P. Br. in Opp. to Building Ds. Mot. 16), and she cites several decisions for the proposition that proximate causation based on the absence of a smoke detector is an issue for the jury. (Id.) Those decisions simply affirm in conclusory terms that the evidence presented to the trial court sufficed to defeat summary judgment; they offer no real insight on the issue of proximate causation. See Baker v. Riverhouse Realty Co., 751 N.Y.S. 361, 361 (1st Dep't 2002) (holding, without stating the facts, that "material questions of fact exist as to whether [one defendant] installed and/or maintained smoke detectors . . . and, if it did not, whether the presence of smoke detectors would have obviated plaintiff's injury"); Eifer v. Shmuelovitch, 692 N.Y.S.2d 452, 453 (2d Dep't 1999) (affirming, without stating the facts, trial court's denial of summary judgment where "material questions of fact exist[ed] regarding the defendants' alleged failure ['to install an operational smoke-detecting device'] and whether such failure was a proximate cause of plaintiffs injuries"); Whitfield v. City of New York, 657 N.Y.S.2d 757, 758 (2d Dep't 1997) (sustaining jury verdict because the evidence permitted a finding that the failure to install smoke detectors, among several other negligent acts, ' Vas a cause in fact of the plaintiff's injuries").
Two cases cited by the Building Defendants, by contrast, explicitly analyze proximate cause in this context. In Alloway v. 715 Riverside Drive, LLC, 748 N.Y.S.2d 6 (1st Dep't 2002), plaintiff asserted that the defendant building owner mounted smoke detectors in her apartment in a position "too low on the walls, " a violation of the Administrative Code.Id. at 7. Assuming the violation for purposes of defendant's summary judgment motion, the court held that
no issue of fact exists as to whether such violation was a proximate cause of plaintiff's injuries. Her expert's opinion that enough time had passed to allow the small particles known as "invisible smoke" generated by the burning cooking oil to migrate from the kitchen to the nearby hallway where one of the smoke detectors was located must be rejected as speculative, absent any indication as to how long it takes such smoke to form, the rate at which it travels, the height it would have to reach to have been detected, and how long plaintiff left the pot unattended.Id. at 8. Here, similarly, Weber offers no evidence, still less expert testimony, to present a triable issue of fact regarding how long it would have taken for smoke to form under the circumstances of this particular fire, "the rate at which it travels" or "the height it would have [had] to reach to have been detected" before Vallecillo became aware of the fire. In Acevedo v. Audubon Mgt, Inc., 721 N.Y.S.2d 332 (2001), a wrongful death action, the court similarly refused to accept that failure to install a smoke detector, ipso facto, meant that the decedent would have been alerted to the fire in a more timely manner. There, as here, no witness testified that had operational smoke detectors been present, the injuries would have been less severe or averted altogether Id. at 336. Accordingly, as a matter of law, the jury lacks a non-speculative basis from which to conclude that the existence or non-existence of a smoke detector in apartment 11A made any difference at all to the extent of the fire damage to Weber's apartment.
Weber's claims that problems with the stairwell doors impeded the firefighters' progress suffers from the same defect, that is, the absence of evidence from which a reasonable juror could infer proximate causation. While Wick and Dougherty testified in general terms that mislabeled stairwells and locked stairwell doors can impede their work, neither could say that in this case, any such condition affected the Department's response time or ability to fight the fire effectively. Weber emphasizes that the firefighters had to force several doors (P. Br. in Opp. to Building Ds. Mot. 5-6) and that one of those doors opened outward against the entrance to apartment 11 A, reducing the ability of personnel to maneuver the fire hose appropriately. (Id. 6-7.) But neither Wick nor Dougherty testified that these problems, or any other alleged by Weber, delayed or impeded the Department's ability to put out the fire. (See,e.g., Dougherty Tr. 94-95, 155-57; Wick Tr. 137-38.) Dougherty testified that each of the three locked doors the firefighters encountered took half a second to force. (Dougherty Tr. 139.) It is conceivable that a one-and-a-half second delay could be significant in some cases, for example, if within that brief period a fire were to spread to a gas tank, causing an explosion that would not have otherwise occurred. But in this case, neither Dougherty nor Wick could say that this or any other alleged delay caused additional damage to Weber's apartment. (Dougherty Tr. 164-65; Wick Tr. 136-38, 146.) It would be mere conjecture and impermissible speculation for a juror to conclude otherwise.
In short, even were Weber to succeed in establishing that the Building Defendants acted negligently in the ways she alleges, no reasonable juror could conclude that any negligence of the Building Defendants proximately caused or contributed to the fire damage to Weber's apartment. Accordingly, the Building Defendants' motion for summary judgment is granted, and their cross-claims against the Paduanos for contribution or indemnification are denied as moot.
D. Weber's Motion
Weber moves for partial summary judgment on her "claim relating to the clean-up of her apartment by Maxons Restorations, Inc." (P. Br. 1.) Weber's amended complaint avers that the Building Defendants owed a duty of reasonable care to Weber, which they breached, causing or contributing to the fire damage to her apartment. (Compl. ¶¶ 40-47, 49-55.) It alleges, that is, negligence. It does not allege a breach of Weber's proprietary lease. Nor does it make any other claim that sounds in either contract or strict liability in tort, even assuming that Weber's "claim" for the reimbursement of clean-up and restoration costs pursuant to an alleged obligation of the Building Defendants under her lease can be construed in the latter manner. In fact, no cause of action alleged against the Building Defendants mentions either Maxons or Weber's lease.
True, "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the fact upon which [s]he bases h[er] claim, "Conley v. Gibson, 355 U.S. 41, 47 (1957), but they do require the claimant to "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Id.; see also Beckman v. U.S. Postal Serv., 79 F. Supp.2d 394, 407 (S.D.N.Y. 2000). The most generous construction of Weber's complaint would not yield anything resembling a claim for indemnification of personal clean-up costs pursuant to her lease. See Carribean Wholesales Serv. Corp. v. U.S. JVC Corp., 963 F. Supp. 1342, 1359 (S.D.N.Y. 1997); cf. Beckman, 79 F. Supp.2d at 406 ("Plaintiff's Amended Complaint does not include a claim for breach of contract . . . or, for that matter, any facts that can be construed as alleging the existence of a common law employment contract."). It is wholly inappropriate for Weber to seek to add a claim, let alone move for summary judgment on such a phantom claim, after discovery has been completed and without leave from the Court. Carribean Wholesales Serv. Corp., 963 F. Supp. at 1359. "A motion for summary judgment is not the appropriate place to present new claims which effectively amend the complaint." Allen v. West-Point-Pepperell Inc., 908 F. Supp. 1209, 1224 (S.D.N.Y. 1995). Because Weber's complaint contains no allegation that can be construed as a claim for personal clean-up costs based on either a breach of Weber's lease or on some theory of strict liability in tort, the Building Defendants have had no opportunity to take discovery on these issues and would therefore be unduly prejudiced by the claim's introduction at this juncture. See Conley, 355 U.S. at 47; Beckman, 79 F. Supp.2d at 407.
In short, "[s]ummary judgment cannot be granted as to this 'claim' because it is not a claim." Carribean Wholesales Serv. Corp., 963 F. Supp. at 1359. Weber has already had an opportunity to amend her complaint, and discovery has now been completed. Accordingly, not only is her putative motion for partial summary judgment denied, but to the extent Weber seeks leave to replead, the Court declines to grant leave because it would unduly prejudice the Building Defendants at this juncture. See Beckman, 79 F. Supp.2d at 407; Khan v. Abercrombie Fitch, Inc., No. 01 Civ. 6163, 2003 WL 22149527, at *10 (S.D.N.Y. Sept. 17, 2003).
CONCLUSION
For the reasons set forth above, the Paduanos' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and, alternatively, for summary judgment is denied, as is Weber's motion for partial summary judgment. The Building Defendants' motion for summary judgment is granted and the claims against them dismissed.
SO ORDERED.