| Preferred Mut. Ins. Co. v C. Rumbalski Chimney Sweep |
| 2007 NY Slip Op 10522 [46 AD3d 866] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Preferred Mutual Insurance Company, as Subrogee of Rose Volaskiand Another, Appellant, v C. Rumbalski Chimney Sweep,Respondent. |
—[*1] Hiscock & Barclay, LLP, Albany, N.Y. (Brian D. Casey of counsel), forrespondent.
In an action to recover damages for injury to property, the plaintiff appeals from a judgmentof the Supreme Court, Orange County (McGuirk, J.), entered August 31, 2006, which, upon ajury verdict, and upon the denial of its separate motions pursuant to CPLR 4401 for judgment asa matter of law and pursuant to CPLR 4404 to set aside the verdict as against the weight of theevidence and for a new trial, is in favor of the defendant and against it, dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
Rose Volaski and Elliot Volaski, subrogors of the plaintiff, purchased a woodburning stovefireplace insert from the defendant. The manufacturer's instructions for the fireplace insertprovided that any combustible floor in front of the fireplace hearth must be protected with 16inches of noncombustible floor protector. The defendant installed the fireplace insert as part ofthe purchase price. At the time, the floor protection was inadequate. Carl Rumbalski, who did theinstallation, testified that he orally warned the Volaskis that they needed to obtain more floorprotection and gave them a copy of the manufacturer's instructions. However, they did not installadditional floor protection. Four years later, there was a fire in the Volaskis' home that theplaintiff alleged was caused by an ember that escaped from the fireplace insert.
This case proceeded on "a breach of contract theory" under the principle that "[a] [*2]person charged with performing work under a contract mustexercise reasonable skill and care when performing work, and negligent performance may giverise to actions for tort and for breach of contract" (International Fid. Ins. Co. v Gaco W.,229 AD2d 471, 474 [1996]). This case falls within the perplexing "borderland between tort andcontract," a situation which "most often arise[s] where the parties' relationship initially is formedby contract, but there is a claim that the contract was performed negligently" (Sommer vFederal Signal Corp., 79 NY2d 540, 551-552 [1992]).
Contrary to the plaintiff's contention, the Supreme Court properly denied its motion pursuantto CPLR 4401 for judgment as a matter of law. The evidence established that the Volaskispurchased only the wood stove insert from the defendant and that the purchase price includedinstallation. There was no evidence that the contract included noncombustible material to be usedas floor protection or that the defendant had agreed to extend the Volaskis' hearth to fireproof thearea. In addition, there was no evidence that the insert itself was not properly installed. Thedefendant testified that he informed Elliot Volaski of the need to obtain floor protection.Accordingly, the evidence presented a rational basis upon which the jury could have found infavor of the defendant (see Maplewood,Inc. v Wood, 21 AD3d 933, 934 [2005]).
Additionally, it cannot be said that "the jury could not have reached its verdict on any fairinterpretation of the evidence" (Kinney v Taylor, 305 AD2d 466, 467 [2003]).Consequently, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4404to set aside the verdict as against the weight of the evidence. Spolzino, J.P., Krausman, Goldsteinand Dickerson, JJ., concur.