| St. Paul Travelers Cos., Inc. v Joseph Mauro & Son, Inc. |
| 2012 NY Slip Op 01669 [93 AD3d 658] |
| March 6, 2012 |
| Appellate Division, Second Department |
| St. Paul Travelers Companies, Inc., as Subrogee of Blanche, Verte& Blanche, Ltd., Respondent, v Joseph Mauro & Son, Inc., Appellant, and Shore Drugs,Inc. Respondent. (Action No. 1.) Granite State Insurance Company, as Subrogee of Bridal Suiteof Bay Shore, Inc., Respondent, v Blanche, Verte & Blanche, Ltd., et al., Respondents, andJoseph Mauro & Son, Inc., Appellant. (Action No. 2.) Hartford Insurance Company, as Subrogeeof MK Fur Fashions, Inc., Doing Business as Shore Furs, Respondent, v Blanche, Verte &Blanche, Ltd., et al., Respondents, and Joseph Mauro & Sons, Appellant. (Action No. 3.) UticaFirst Insurance Company, As Subrogee of MK Fur Fashions, Inc., Doing Business as Shore Furs,Respondent, v Blanche, Verte & Blanche, Ltd., et al., Respondents, and Joseph Mauro & Son,Inc., Appellant. (Action No. 4.) Utica First Insurance Company, as Subrogee of MaryMcLoughlin, Respondent, v Blanche, Verte & Blanche, Ltd., et al., Respondents, and JosephMauro & Son, Inc., Appellant. (Action No. 5.) Travelers Indemnity Company of America, asSubrogee of Shore Drugs, Inc., Respondent, v Joseph Mauro & Son, Inc., Appellant. (Action No.6.) |
—[*1] Badiak & Will, LLP, Mineola, N.Y. (Alfred J. Will and Lisa A. Scognamillo of counsel), forplaintiff-respondent in action No. 1. Gwertzman Lefkowitz Burman Smith & Marcus, New York, N.Y. (Robert J. Finn ofcounsel), for plaintiff-respondent in action No. 2. Robinson & Cole LLP, New York, N.Y. (Gregory J. Ligelis of counsel), forplaintiff-respondent in action No. 3. Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Lisa De Lindsay of counsel), forplaintiff-respondent in action Nos. 4 and 5. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner ofcounsel), for respondent in action No. 6.
In six related subrogation actions, inter alia, to recover damages for negligence, the defendantJoseph Mauro & Son, Inc., appeals from (1) so much of an order of the Supreme Court, SuffolkCounty (Jones, Jr., J.), dated April 16, 2010, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it in action No. 1, (2) somuch of a second order of the same court, also dated April 16, 2010, as denied its motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it inaction No. 2, (3) so much of a third order of the same court, also dated April 16, 2010, as deniedits motion for summary judgment dismissing the complaint and all cross claims insofar asasserted against it in action No. 3, (4) so much of a fourth order of the same court, also datedApril 16, 2010, as denied its motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it in action No. 4, (5) so much of a fifth order of the samecourt, also dated April 16, 2010, as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it in action No. 5, and (6) an order ofthe same court dated June 30, 2010, which denied its motion for summary judgment dismissingthe complaint in action No. 6.
Ordered that the five orders dated April 16, 2010, are affirmed insofar as appealed from; andit is further,
Ordered that the order dated June 30, 2010, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
These six subrogation actions arise from a fire which occurred on October 24, 2002. The fireoriginated from premises leased to the defendant Shore Drugs, Inc. (hereinafter Shore Drugs),and damaged Shore Drugs' premises and neighboring premises. The plaintiffs, who are insurers,commenced these actions, as subrogees of various business and premises owners who sustainedlosses as a result of the fire, against, among others, the defendant Joseph Mauro & Son, Inc.,named in action No. 3 as Joseph Mauro & Sons (hereinafter Mauro). Mauro is an electrical repaircompany which was hired by Shore Drugs to perform repair work on an electrical panel box atShore Drugs' premises several days before the fire. The plaintiffs alleged, inter alia, that Mauronegligently repaired the electrical panel box by merely replacing a burned-out circuit breakerwithout determining the underlying cause of an overheating problem, and that this negligencewas a proximate cause of the fire. Mauro moved for summary judgment dismissing the complaintand all cross claims insofar as asserted against it in each action. With respect to action No. 6,which was commenced by Shore Drugs' subrogee, Mauro argued, among other things, that theduty of care it owed to Shore Drugs was limited to fixing the problem for which it was called torepair, a "sizzling" sound coming from the electrical panel box. With respect to the othersubrogation actions, Mauro argued, inter alia, that it owed no duty of care to the plaintiffs'noncontracting third-party insureds pursuant to Espinal v Melville Snow Contrs. (98NY2d 136 [2002]). The Supreme Court denied Mauro's motions for summary judgment.[*2]
Before a defendant may be held liable for negligence,there must first be a legal duty owed by that defendant to the plaintiff (see Pulka vEdelman, 40 NY2d 781, 782 [1976]; Krinick v Sharac Rest., 144 AD2d 440 [1988]).Whether a duty exists is a question of law for the court (see Eiseman v State of NewYork, 70 NY2d 175, 187 [1987]), which must consider the social consequences of imposinga duty and then tailor the duty in order to limit the legal consequences to a controllable degree(id.; see Bodaness v Staten Is. Aid, 170 AD2d 637, 638 [1991]; see also Parksv Hutchins, 162 AD2d 666, 670 [1990], affd 78 NY2d 1049 [1991]). With regard toShore Drugs, we conclude that Mauro owed a duty to use ordinary care and skill in its electricalpanel box repair activities to avoid danger and injury to the person and property of others, andthis duty included investigating the underlying cause of the problem which it was hired to fixunder the circumstances presented (seeSutherland v Thering Sales & Serv., Inc., 38 AD3d 967 [2007]; Hayes v NiagaraMohawk Power Corp., 261 AD2d 748, 750 [1999]; Northern Assur. Co. v Nick, 203AD2d 342, 343 [1994]). In moving for summary judgment, Mauro failed to establish, primafacie, that it did not breach this duty when it performed repair work on the electrical panel box atShore Drugs' premises, or that any breach of this duty was not a proximate cause of the fire.
As to the noncontracting third-party insureds, generally, a contractual obligation, standingalone, is insufficient to give rise to tort liability in favor of a noncontracting third party (seeEspinal v Melville Snow Contrs., 98 NY2d at 138). However, an exception to this generalrule exists where "the promisor, while engaged affirmatively in discharging a contractualobligation, creates an unreasonable risk of harm to others, or increases that risk, sometimesdescribed as conduct that has 'launch[ed] a force or instrument of harm' " (RegattaCondominium Assn. v Village of Mamaroneck, 303 AD2d 739, 740 [2003], quotingMoch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]; see Espinal v MelvilleSnow Contrs., 98 NY2d at 140-142; Bienaime v Reyer, 41 AD3d 400, 403 [2007]). Contrary to Mauro'scontention, it failed to meet its initial burden of demonstrating, as a matter of law, withcompetent evidence, that while repairing the electrical panel box, it did not create anunreasonable risk of harm to others, or increase that risk, as the subrogees of the noncontractingthird-party insureds alleged. Instead of affirmatively demonstrating the merit of its defense,Mauro merely pointed to gaps in its opponents' proof, which is insufficient to make out a primafacie showing of entitlement to judgment as a matter of law (see Peskin v New York City Tr.Auth., 304 AD2d 634 [2003]).
Mauro's remaining contentions are without merit.
Accordingly, the Supreme Court correctly denied Mauro's motions for summary judgment,regardless of the sufficiency of the opposition papers (see Zuckerman v City of NewYork, 49 NY2d 557 [1980]). Rivera, J.P., Leventhal, Roman and Sgroi, JJ., concur.