Motion Sequence number two (2) by Defendant GOODMAN MANAGEMENT for an. Motion Sequence number four (4) by ROYAL INSURANCE COMPANY OF AMERICA

Transcription

1 )( ---)( SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ROYAL INSURACE COMPANY OF AMERICA a/s/o MARC FISHMAN Plaintiff -against - GOODMAN MANAGEMENT and SULLIVAN FLOOR SERVICE Defendant (s) MICHELE M. WOODAR, J. TRIAL/IS Par Inde)( No.: 5837/03 Motion Seq. Nos.:02, 04 & 05 DECISION & ORDER Papers Read on this Motion: Defendant Goodman Management' s Notice of Motion for Sumar Judgment Plaintiffs Notice of Cross Motion Defendant Sullvan Floor Service s Notice of Cross Motion Defendant Goodman Management' s Affirm:;tion in Opposition Plaintiff Royal Insurance Company of America a/s/o Marc Fishman s Affirmation in Opposition to Sullvan Floor Service s Cross Motion for Sumar Judgment Defendant Goodman Management's Affrmation in Opposition Defendant Goodman Management's Reply Affrmation Defendant Sullvan Floor Service s Reply Affirmation in Furher Support of Cross Motion for Sumar Judgment Motion Sequence number two (2) by Defendant GOODMAN MANAGEMENT for an order pursuat to CPLR 3211(a)(1) dismissing the Complaint and any and all cross-claims against it is denied. Motion Sequence number four (4) by ROYAL INSURANCE COMPANY OF AMERICA a/s/o MARC FISHMAN ("ROYAL INSURANCE" AND "FISHMAN") for an order pursuant to CPLR 3124 compellng Defendant GOODMAN MANAGEMENT to provide discovery or an order pursuant to CPLR 3126 striking Defendant GOODMAN MAAGEMENT' s answer and all Page 1 of 6

2 counter and cross-claims asserted by it is denied. The cross-motion (Motion Sequence number five)by SULLIVAN FLOOR SERVICE for an order pursuant to CPLR ~3212 granting it Sumar Judgment dismissing the Complaint and any and all cross- claims against it is denied. This is a subrogation action in which the subrogee ROYAL INSURANCE seeks to recover monies paid to its insured subrogor MARC FISHMAN to compensate him for damages caused by a leak radiator pipe in Aparment G at 3200 Netherland Avenue in Riverdale, New York. Defendant GOODMAN MANAGEMENT was the propert' s managing agent for the landlord Steve Lee Houses, Inc. GOODMAN MANAGEMENT contracted with Defendant SULLIVAN FLOOR SERVICE to repair the parquet floor in FISHMAN' aparent which had been damaged by the leak. ROYAL INSURANCE paid FISHMAN $ on his claim which he submitted under his homeowner s insurance policy. Most oftq.at payment was to compensate FISHMAN for hotel and meal expenses he incured while the repair work was being done. In its Complaint, ROYAL INSURANCE alleges that GOODMAN MANAGEMENT's negligent maintenance of the building caused the leak in FISHMAN' s aparment and that its negligent hiring of SULLIV AN FLOOR SERVICE to repair the floor caused fuer damages. ROYAL INSURACE additionally alleges in its Complaint that SULLIV AN FLOOR SERVICE' S negligence in repairing the floor caused extensive damages to FISHMA. GOODMAN MANAGEMENT advances several defenses in its Answer, to wit; Plaintiffs contributory culpable conduct and a contractual waiver of subrogation. It also advances a cross-claim against SULLIV AN FLOOR SERVICE sounding in negligence and breach of contract. SULLIVAN FLOOR SERVICE alleges in its answer inter alia culpable contributory Page 2 of 6

3 conduct by FISHMAN and a cross-claims against GpODMAN MAAGEMENT sounding in negligence as well as indemnfication. Defendant GOODMA MANAGEMENT seeks Sumar Judgment dismissing the Complaint against it on the ground that a waiver of subrogation was permitted under the ROYAL INSURANCE policy and was waived by FISHMAN in his lease. Defendant SULLIVAN FLOOR SERVICE seeks Summar Judgment dismissing the Complaint based on a lack of privity and/or causation. Finally, relying on a prior motion by SULLIV AN FLOOR SERVICE, ROYAL INSURANCE seeks, inter alia to compel discovery by GOODMAN MANAGEMENT. On a motion for Sumar Judgment pursuant to CPLR ~3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering suffcient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley King, 10 AD3d 70 (2d Dept. 2004), citing Alvarez Prospect Hosp. 68 NY2d 320, 324; Winegrad New York Univ. Med. Ctr. 64 NY2d 851, 853. "Failure to make such aprimafacie showing requires a denial of the motion, regardless of the sufficiency ofthe opposing papers. Sheppard-Mobley King, supra; Winegrad New York Univ. Med. Ctr., supra. Once the Movant's burden is met, the burden shifts to the opposing par to establish the existence of a material issue of fact Zuckerman City of New York 49 NY2d 557 (1980). DEFENDANTS' request that the action be dismissed on account of FISHMAN' S, and accordingly his subrogee ROYAL INSURACE, lack of standing is denied. ROYAL INSURANCE alleges in its Complaint that FISHMA was a tenant in Unit G. Discovery with respect to the par-in-interest regarding aparment G thus far has produced only a stock certificate Page 3 of 6

4 issued by Steven Lee Houses, Inc., to one Arinn Alavil on July 31, No lease or agreement in FISHMAN' s name has been produced despite numerous demands. Neverteless, neither Defendant has established that FISHMAN was not a tenant in Unit G. As DEFENDANTS have not met their burden, the burden does not shift: DEFENDANTS' attempt to shift the burden to Plaintiff to prove that he was a tenant fails. Winegrad New York University Medical Center, supra. And the Plaintiff has not moved for Sumar Judgment. As for Defendant GOODMAN MANAGEMENT'S application for Summar Judgment, it has not established a waiver of subrogation by FISHMAN in his lease: Again, a lease has not been produced. As for Defendant SULLIVAN FLOOR SERYICES' application for Sumar Judgment (t)he existence and scope of an alleged tort feasor s duty is, in the first instance, a legal question for determination by the cours. Sanchez State oflvew York 99 NY2d 247, 252 (2002); see also Espinal Melvile Snow Contractors, Inc. 98 NY2d 136, 138 (2002). " (A) contractual obligation standing alone, wil generally not give rise to tort liabilty in favor of a third par. Espinal Melvile Snow Contractors, Inc., supra at p Neverteless a duty of care to non-contracting paries may arse out of a contractual obligation or the performance thereof. Church ex rei. Smith Callanan Industries, Inc. 99 NY2d 104 (2002). "Where the promisor while engaged afrmatively in discharging a contractual obligation creates an uneasonable risk of har to others or increases that risk " a duty to third paries may arise. Church ex rei. Smith Callanan Industries, Inc., supra at p. 111, citing Espinal Melvile Snow Contractors, supra, at p (2002) and HR. Moch Co. Rensselaer Water Co. 247 NY 160, 167 (1928). Such a duty may also arse when a third-par has "suffered injury as a result of reasonable reliance upon the defendant' s continuing Page 4 of 6

5 performance of a contractual obligation.... Church ex rei. Smith Callanan, supra at p , citing Espinal Melvile Snow Contractors, supra at p SULLIVAN FLOOR SERVICES' work did not increase the risk of har to Fishman. See Church ex rei. Smith Callanan, supra at p. Ill; Eaves Brooks Costume 90. Y.B.H Realty Corp. 76 NY2d (1990); Galit Town of Islip, 19 AD3d 642 (2d Dept. 2005); Cooper Time Warner Entertainment-Advance/ Newhouse Partnership, 16 AD3d 1037 (4th Dept. 2005); Dennebaum Rotterdam Square, L.P. 6 AD3d 1045 (3d Dept. 2004); Gordon Talleyrand Crescent Development Corp. 304 AD2d 712 (2d Dept ; compare Vega S.S.A. Properties, Inc., 13 AD3d 298 (1 st Dept. 2004). While FISHMAN lacked privity with SULLIVAN FLOOR SERVICE a third-par may recover as an intended beneficiar of a contract between others... if it is clear that the paries purosed to confer a benefit on that thrd par; fuhermore, that benefit must be more than merely incidental to the benefits afforded the contracting paries, it must be such to evince an intent to permit enforcement by the third par. Binghamton Masonic Temple Inc. City of Binghamton 213 AD2d 742, 745, Iv den., 85 NY2d 811 (3d Dept. 1999); see also Fourth Ocean Putnam Corp. Interstate Wrecking Co., Inc. 66 NY2d 38, (1985). Whether FISHMAN was a third-par beneficiar of GOODMAN MANAGEMENT' S agreement with SULLIVAN FLOOR SERVICE presents an issue of fact. It was not a common area of the building that was being repaired but FISHMAN' S residence. Prescott Turner 15 AD3d 557 (2d Dept. 2005); Johnson City Cent. School Dist. Fidelity and Deposit Co. of Maryland 263 AD2d 580 (3d Dept. 1999); Zucker Kid Gloves, Inc. 234 AD2d 598 (2d Dept. 1996); compare Raffa Louis A. Stiloe Roofing & Siding, Inc. 182 AD2d 901 (3d Dept. 1992). Page 5 of 6

6 The Discovery Motion by ROYAL INSURANCE is denied as SULLIVAN FLOOR SERVICE' S motion for the same relief was denied by order dated December , on account of GOODMAN MAAGEMENT' S providing discovery. The paries are directed to appear for trial ordanuar 31, 2006 at 9:30 A.M. This constitutes the Decision and Order of the Cour. DATED: Januar 30, 2006 Mineola, N. Y ENTER: JL HON. MICHELE M. WOODARD ENTERED NA COUN feb 0 ' SAU COUNTY CLERK' S OFFICE Page 6 of 6