| Merchants Mut. Ins. Co. v Quality Signs ofMiddletown |
| 2013 NY Slip Op 07016 [110 AD3d 1042] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Merchants Mutual Insurance Company, as Subrogee ofW.C. Greens Corp., Respondent, v Quality Signs of Middletown,Appellant. |
—[*1] Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy ofcounsel), for respondent.
In a subrogation action to recover insurance benefits paid by the plaintiff to itsinsured for injury to property, the defendant appeals from an order of the Supreme Court,Orange County (Marx, J.), dated October 2, 2012, which denied its motion for summaryjudgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
On April 3, 2007, a commercial tenant in a building owned by the plaintiff's insuredhired the defendant to replace the existing lettering of a fluorescent sign hanging outsidethe tenant's store. The defendant replaced the front of the sign as well as the light bulbson that date. On September 26, 2008, a fire broke out in the building, which was insuredby the plaintiff. The plaintiff thereafter paid benefits to its insured under the relevantpolicy of casualty insurance to compensate the insured for property damage.
The plaintiff, as subrogee of its insured, commenced this action against the defendantto recover the benefits it had paid to the insured, alleging that the defendant negligentlycaused or contributed to the fire. The defendant moved for summary judgmentdismissing the complaint, and the Supreme Court denied the motion.
The elements of a cause of action alleging common-law negligence are a duty owedby the defendant to the plaintiff, a breach of that duty, and a showing that the breach ofthat duty proximately caused injury to the plaintiff (see Turcotte v Fell, 68 NY2d432, 437 [1986]; Kraut v Cityof New York, 85 AD3d 979, 980 [2011]; Jiminez v Shahid, 83 AD3d 900, 901 [2011]; Ruiz v Griffin, 71 AD3d1112, 1114 [2010]). "The existence and scope of an alleged tortfeasor's duty is, inthe first instance, a legal question for determination by the court" (Di Ponzio vRiordan, 89 NY2d 578, 583 [1997]; see Sanchez v State of New York, 99NY2d 247, 252 [2002]; Eiseman v State of New York, 70 NY2d 175, 187[1987]; Mauskopf v 1528Owners Corp., 102 AD3d 930, 932 [2013]; Demshick v Community Hous. Mgt. Corp., 34 AD3d 518,519-520 [2006]; Alvarez v Tele-Mechanics Inc., 276 AD2d 513, 514 [2000])."In the absence of a contract for routine or systematic maintenance, an independentrepairer/contractor has no duty to install safety [*2]devices or to inspect or warn of any purported defects" (Daniels v Kromo LenoxAssoc., 16 AD3d 111, 112 [2005]; see Mauskopf v 1528 Owners Corp.,102 AD3d at 932; Bevilacqua vBloomberg, L.P., 70 AD3d 411, 412 [2010]; Ledesma v Aragona Mgt.Group, 50 AD3d 510, 510 [2008]; McMurray v P.S. El., 224 AD2d 668[1996]). Further, absent such a duty, or proof of negligence with regard to theperformance of the repairs the independent repairer/contractor was hired to do, theindependent repairer/contractor cannot be held liable for damages caused by themalfunction of the mechanism it had been hired to repair (see Mauskopf v 1528Owners Corp., 102 AD3d at 932; Allen v Thompson Overhead Door Co., 3 AD3d 462,464-465 [2004]).
Here, the defendant established its prima facie entitlement to judgment as a matter oflaw. In its complaint and bill of particulars, the plaintiff alleged that the defendant wasnegligent in failing to install a proper nonmetallic sheathed cable (hereinafter NM cable)or having moved existing NM cable during its repair so that water was permitted tointrude into the sign, thus eventually causing the fire. However, the defendant's invoicefor the work performed and the deposition testimony of the defendant's ownerdemonstrated that the defendant's work was limited to replacing the face of the sign andinstalling new bulbs, and did not involve the NM cable. Moreover, the defendant's ownertestified at his deposition that he did not notice anything wrong with the sign on the dateof the repair while the face of the sign was off.
In opposition to the defendant's prima facie showing, the plaintiff tendered noevidence demonstrating that the defendant negligently performed any of the repairs it hadbeen hired to make to the fluorescent sign (see Kleinberg v City of New York, 27 AD3d 317, 317[2006]), and failed to controvert the deposition testimony of the defendant's owner as tothe absence of a defect in the sign. Rather, the plaintiff submitted an affidavit from anexpert, who opined that the defendant was negligent in failing to observe that an NMcable connector was missing where the cable entered the rear of the sign and in failing tocorrect this hazard while it serviced the sign. The defendant, however, did not have aduty to install safety devices or to inspect or warn of any purported defects in the signthat were unrelated to the installation of the new face and the light bulbs, since it did notenter into a contract to provide routine or systematic inspection or maintenance of thesign. Accordingly, the plaintiff did not raise a triable issue of fact as to whether thedefendant was negligent in failing to observe the alleged absence of the NM cable or infailing to correct this defect in the course of its work (see Vermette v KenworthTruck Co., 68 NY2d 714, 717 [1986]; Mauskopf v 1528 Owners Corp., 102AD3d at 932; McKeon v Town of Oyster Bay, 292 AD2d 574, 575 [2002];McMurray v P.S. El., 224 AD2d at 670; see also Ayala v V & O PressCo., 126 AD2d 229, 235-236 [1987]). "To hold [the defendant liable] would be toexpose to liability every contractor who, over the lifetime of a product, repairs it in eventhe slightest way, simply upon the premise that the contractor ought to have warned of adangerous condition" (Ayala v V & O Press Co., 126 AD2d at 237).
Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint. Balkin, J.P., Leventhal, Austin and Roman,JJ., concur.