| Markel Ins. Co. v Bottini Fuel |
| 2014 NY Slip Op 02372 [116 AD3d 1143] |
| April 3, 2014 |
| Appellate Division, Third Department |
| Markel Insurance Company, as Subrogee of Chai Lifeline,Inc., Respondent, v Bottini Fuel et al., Appellants. |
—[*1] Hodges, Walsh, Messemer & Moroknek, LLP, White Plains (Paul E. Svensson ofcounsel), for Bermil Industries Corporation and another, appellants. Wade Clark Mulcahy, New York City (Michael Gauvin of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Cahill, J.), entered December19, 2012 in Sullivan County, which denied defendants' motions for, among other things,summary judgment dismissing the first and second amended complaints.
During the summer of 2001, plaintiff's subrogee, the operator of a summer camp inGlen Spey, Sullivan County, purchased two new gas-operated clothes dryers andinstalled them in a laundry room in the camp's dining facility. Defendants Bottini Fueland Morgan Fuel and Heating Company (hereinafter collectively referred to as Bottini)participated in the installation by connecting the dryers to existing gas lines,[FN1] and returned thereafter to service the dryers, one of which did not operate correctly. InAugust 2001, the dining facility was destroyed by a fire that began in the laundry room.The precise cause of the fire was not determined, but an [*2]investigator retained by plaintiff concluded that itoriginated in the area of the malfunctioning dryer, and that this dryer was the onlypotential ignition source that could not be eliminated.
Thereafter, plaintiff commenced this subrogation action against Bottini, allegingcauses of action in breach of warranty and negligence. In 2006, plaintiff amended thecomplaint to add defendants Bermil Industries Corporation and Wascomat of America(hereinafter collectively referred to as Wascomat), the distributors from whom the dryerswere purchased. In 2012, Wascomat and Bottini separately moved to dismiss thecomplaints based on spoliation of evidence and, in the alternative, for summary judgmenton the merits. Supreme Court denied the motions, and defendants appeal.
Initially, defendants contend that the complaints should be dismissed becauseplaintiff allegedly failed to preserve certain evidence. Sanctions forspoliation—including the dismissal of a pleading—may be imposed when alitigant intentionally or negligently disposes of critical items of evidence before anopposing party has an opportunity to inspect them (see CPLR 3126 [3];Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [2001], lvdismissed 96 NY2d 896 [2001]; Hartford Fire Ins. Co. v Regenerative Bldg.Constr., 271 AD2d 862, 863 [2000]). There is no evidence in the record here thatdefendants were deprived of such an opportunity. To the contrary, Bottini'srepresentatives were present for an inspection of the fire scene conducted immediatelyafter the fire, as well as a second inspection approximately two months later. Between thetwo inspections, the dryer and all other evidence remained in place on the fire scene,secured by a fence,[FN2] and Bottini does not claim that it sought to conduct any additional investigations or wasprevented from doing so. Shortly after the fire, Wascomat was also advised that its dryermight have caused the fire, and was invited to inspect the scene. Wascomat did notaccept this invitation, nor another in early October 2001, when plaintiff requested that aninspection be scheduled promptly, as restoration of the premises could not be furtherdelayed. Wascomat instead disclaimed involvement, advising that it "does not nowmanufacture and has never manufactured dryers." Plaintiff responded by offering a finalinspection opportunity on the next day; Wascomat did not respond, the second inspectionwas conducted in its absence, and the evidence was then removed and stored.
Defendants later inspected the stored evidence, but argue that an adequateinvestigation was precluded by alleged insufficiencies in plaintiff's inspections and thefailure to locate and preserve an electrical panel that defendants now claim is necessaryto determine the fire's origin.[FN3] [*3]However, the existence and alleged significance ofthis panel, as well as certain other information that defendants contend should have beenrevealed during plaintiff's investigation, could also have been "discover[ed] through atimely inspection" by defendants, had they elected to conduct one (Papa v Russo,279 AD2d 744, 746 [2001], lv denied 99 NY2d 507 [2003]). Moreover, theabsence of the disputed panel did not prevent defendants' experts from inspecting thedryer that plaintiff claims was the sole cause of the fire, nor from opining that this dryerwas not defective. Thus, plaintiff's failure to locate the panel did not result in anyprejudice preventing defendants from defending the case, and we find no "clear abuse ofdiscretion" in Supreme Court's refusal to impose sanctions (State of New York v 158th St. &Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1295 [2012], lv denied20 NY3d 858 [2013]; see Millerv Weyerhaeuser Co., 3 AD3d 627, 628 [2004], lv dismissed 3 NY3d701 [2004], appeal dismissed 5 NY3d 822 [2005]; compare Abulhasan vUniroyal-Goodrich Tire Co., 14 AD3d 900, 903 [2005]).
Next, we reject Wascomat's contention that Supreme Court erred in denying itsmotion for summary judgment on the merits. With regard to the negligence claim,Wascomat asserts that plaintiff offered no evidence to contravene the opinions ofdefendants' experts that no electrical or mechanical failure in the dryer caused thefire.[FN4] However, the Bottini employee who performed the gas installation testified that,although one of the two new dryers functioned correctly, the other never did, but instead"short cycl[ed]," such that its gas flame did not stay lit and no heat was produced. Thisemployee further testified that he called a Wascomat technical support representative forassistance in programming the dryer to correct this malfunction, but that the dryer "wouldnot take the program." He then turned off the gas supply to the dryer, told camprepresentatives that the dryer should not be used, and advised them to obtain assistancefrom Wascomat. Upon returning to the camp on a later date, he found that the gas hadbeen turned back on and the dryer—which still did not functioncorrectly—was being used; he repeated his warning and again turned off the gas.In further deposition testimony, a camp employee confirmed that he had been told by theBottini employee that the dryer did not function correctly, and should not be used. Thecamp employee testified that he put a sign on the dryer warning against its use, butdiscovered on the evening preceding the fire that the sign had been removed and thedryer was being used—and the individual using it continued to do so, even afterthe camp employee told him to stop. Finally, plaintiff's fire investigator testified that helearned during his investigation that a camp employee had used the dryer on the nightbefore the fire. These submissions raise questions as to whether the dryer was defectiveand whether it was being used in a defective condition just before the fire. Wascomatthus failed to meet its prima facie burden of demonstrating the absence of all materialissues of fact as to whether a defect in the dryer caused the fire. Accordingly, summaryjudgment dismissing the negligence claim against Wascomat was properly denied,regardless of the sufficiency of plaintiff's opposing papers (see Vega v Restani Constr.Corp., 18 NY3d 499, 503 [2012]; Oswald v Oswald, 107 AD3d 45, 47 [2013]).
Supreme Court likewise properly denied summary judgment on the breach ofwarranty claim against Wascomat. In this regard, Wascomat contends that even if thedryer was defective, its continued use by camp employees after they were warned of thedefect constituted an [*4]intervening cause such that anybreach of warranty was not the proximate cause of the fire (see UCC 2-314,Comment 13). However, to break the chain of causation in this manner, the conduct atissue must be "extraordinary under the circumstances, not foreseeable in the normalcourse of events, or independent of or far removed from the defendant's conduct"(Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; seeKnickerbocker v De Mars, 147 AD2d 739, 741-742 [1989], lv denied 74NY2d 606 [1989]). We cannot say, as a matter of law, that it was unforeseeable orextraordinary for employees to continue to use a dryer that could be operated, but that didnot properly regulate its heat levels. Moreover, there was no evidence that any warningwas given that continued use of the dryer was a fire hazard. Accordingly, thedetermination whether the continued use severed any causal connection between thedryer and the fire is a factual question for the jury (see Tryon v Square D Co.,275 AD2d 567, 569 [2000]; Meseck v General Elec. Co., 195 AD2d 798, 800[1993]; Nutting v Ford Motor Co., 180 AD2d 122, 131 [1992]).[FN5]
Plaintiff does not oppose Bottini's claim that the breach of warranty claim against itshould have been dismissed. We agree, as the evidence reveals that Bottini's involvementwas limited to installation and repair services, and "[n]o warranty attaches to theperformance of a service" (Rochester Fund Muns. v Amsterdam Mun. LeasingCorp., 296 AD2d 785, 787 [2002] [internal quotation marks and citation omitted];see Torok v Moore's Flatwork& Founds., LLC, 106 AD3d 1421, 1423 [2013]). As to the negligence cause ofaction, Bottini submitted the testimony of an expert opining that the fire was not causedby any negligence on Bottini's part. There is no expert opinion to the contrary. Bottini'semployee did not disturb existing gas lines, but simply connected the lines to new fittingson the back of the dryers, and testified without contradiction that he tested the laundryroom thereafter and found no gas leaks. There is no evidence that any undiscovered gasleak or other installation error caused the fire. Bottini asserts that the subject dryer didnot function correctly from the point of installation, that its employee's remedial effortswere limited to programming the dryer, that he followed the instructions of Wascomattechnical personnel in this respect, and that there is no evidence that he did soincorrectly. Finally, although plaintiff's investigator found that the dryer's back panel hadbeen removed, the uncontradicted testimony establishes that the Bottini employee did notremove this back panel while servicing the dryer, and that the panel was in placefollowing the final service call. This evidence, in addition to the previously discussedtestimony regarding the Bottini employee's warnings that the dryer should not be usedand actions in repeatedly turning off the gas, establishes on a prima facie basis that nonegligence on Bottini's part caused the fire, shifting the burden to plaintiff to raise triableissues of fact (see Gray v R.L.Best Co., 78 AD3d 1346, 1350-1351 [2010]).
In response, plaintiff relies primarily on circumstantial evidence that the dryer wasdefective and that the fire originated therein, which—although potentially relevantto Wascomat's [*5]liability—fails to present triableissues of fact as to whether Bottini's installation and services were negligent. Plaintifffurther contends that Bottini failed to provide service reports substantiating itsemployee's claim that he warned camp personnel not to use the dryer. However, thisclaim was corroborated by the camp employee, and no record evidence contradicts it orsuggests that the service reports might indicate otherwise. Further, it was not clearlyshown that any relevant service reports are actually missing. Neither Bottini's employeenor the camp employee—testifying almost a decade after the fire—couldremember exactly when or how many service calls were made, and Bottini apparently didsupply reports describing two service calls to the camp within five days of the fire. Underthese circumstances, plaintiff's theory that additional service reports might reveal someact or omission on Bottini's part that caused the fire "is founded upon mere speculationand surmise" (Flahive v UnionColl., 99 AD3d 1151, 1153 [2012]). We find that Bottini's summary judgmentmotion on this cause of action should have been granted, as plaintiff failed todemonstrate the existence of factual issues as to whether Bottini's negligence was asubstantial cause of the fire (see92 Ct. St. Holding Corp., LLC v Monnet, 106 AD3d 1404, 1406 [2013];Gray v R.L. Best Co., 78 AD3d at 1351; compare Rockefeller v Albany Welding Supply Co., 3 AD3d753, 756 [2004]).
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, with costs to defendants Bottini Fuel and Morgan Fuel and Heating Company, byreversing so much thereof as denied said defendants' motion for summary judgmentdismissing the first and second amended complaints against them; motion granted andsaid complaints dismissed as to these defendants; and, as so modified, affirmed.
Footnote 1: A nonparty contractorperformed related electrical work.
Footnote 2: Contrary to theallegation of Bottini's expert—who never inspected the fire scene—therecord does not reveal that adequate investigation was prevented by bulldozing.Although earthmoving equipment was apparently used to extinguish the fire in otherareas, the uncontradicted testimony establishes that no such activity took place in thelaundry room area.
Footnote 3: During the 2001inspections, plaintiff's investigator found and preserved an electrical panel. In 2008, anelectrical technician testified that the new dryers had been wired to a different panel; in2011, defendants' experts opined that the cause of the fire could not be determinedwithout examining this panel.
Footnote 4: Plaintiff's investigatorbased his opinion upon heat patterns at the scene, the location of debris, and theelimination of other possible causes.
Footnote 5: We agree withWascomat that Supreme Court erred in finding that a 2005 design change in the dryer'sthermostat constituted evidence of negligence relative to the 2001 fire (see McGarvinv Weller Assoc., 273 AD2d 623, 625 [2000]; Perazone v Sears, Roebuck &Co., 128 AD2d 15, 17 [1987]). However, in light of the other evidence, the court'sreliance on this inadmissible evidence was harmless (see Huff v C.K. SanitarySys., 260 AD2d 892, 896 [1999]).