| Miller v Genoa AG Ctr., Inc. |
| 2015 NY Slip Op 00586 [124 AD3d 1113] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| Tammy Miller, as Administrator of the Estate ofClifford J. Miller, Deceased, et al., Respondents, v Genoa AG Center, Inc., Defendantand Third-Party Plaintiff-Appellant. S&V Refinishing, LLC, Third-PartyDefendant-Appellant. |
Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Brady J. O'Malley of counsel),for defendant and third-party plaintiff-appellant.
Michael Miliano, State Insurance Fund, New York City (Fred J. Hutchinson ofDonohue, Sabo, Varley & Huttner, LLP, Albany, of counsel), for third-partydefendant-appellant.
Greene & Reid, PLLC, Syracuse (Eugene W. Lane of counsel), forrespondents.
Devine, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered July 11,2013 in Tompkins County, which denied defendant's and third-party defendant's motionsfor, among other things, summary judgment dismissing the complaint.
Clifford J. Miller (hereinafter decedent) was an employee of third-party defendant,which operated its propane tank refinishing business in a building owned by defendant.On the date of the accident at issue in this action, third-party defendant's owner, DouglasVanBenshoten, informed the employees, among other things, that they were not to allowa new employee to work [*2]with the propane tanks untilVanBenshoten could provide that employee with the necessary training. Despite suchdirective, after VanBenshoten left the premises, the new employee attempted to remove asupply valve from one of the tanks while inside the building. The employee was unableto remove the valve and asked decedent to assist him. As the valve was loosened, a cloudof propane gas emanated from the tank and met with an ignition source inside thebuilding, causing an explosion that severely burned decedent and ultimately caused hisdeath.
Plaintiffs commenced this wrongful death action against defendant in November2010. Thereafter, defendant commenced a third-party action seeking, among otherthings, common-law and contractual indemnification. Following joinder of issue,defendant and third-party defendant each filed separate motions for, among other things,summary judgment dismissing plaintiffs' complaint against defendant. Supreme Court,among other things, denied the motions to the extent that they demanded the dismissal ofplaintiffs' complaint. Defendant and third-party defendant now appeal.[FN*]
In regard to defendant's and third-party defendant's argument that, as anout-of-possession landlord, defendant owed no legal duty of care to decedent, it is wellestablished that, generally, "once possession has been transferred to a tenant, anout-of-possession landlord will not be held responsible for dangerous conditions existingupon leased premises" (Sticklesv Fuller, 9 AD3d 599, 600 [2004] [internal quotation marks and citationomitted]; see Inger v PCK Dev.Co., LLC, 97 AD3d 895, 896 [2012], lv denied 19 NY3d 816 [2012];Davison v Wiggand, 247 AD2d 700, 701 [1998]). Exceptions to the general ruledo exist, including situations where the landlord retains control over the leased premises,has agreed to repair or maintain the premises or "has affirmatively created the dangerouscondition" (Boice v PCK Dev.Co., LLC, 121 AD3d 1246, 1247 [2014]; see Vanderlyn v Daly, 97 AD3d 1053, 1055 [2012], lvdenied 20 NY3d 853 [2012]; Henness v Lusins, 229 AD2d 873, 874[1996]).
While the record does not reveal that defendant exercised the requisite control overthe building or agreed, pursuant to the lease agreement, to make repairs or maintain theinterior mechanical installations or electrical systems that have been cited as the cause ofthe explosion (see Hart vO'Brien, 72 AD3d 1257, 1258-1260 [2010]; Grady v Hoffman, 63 AD3d 1266, 1268 [2009]), we agreewith Supreme Court's finding that defendant affirmatively created a dangerous conditionthat caused decedent's injuries. Timothy Rouse, the lead investigator who assessed thebuilding after the explosion, opined that the building was outfitted with numerous fireignition sources, including a hanging heating unit, metal-halide lighting, florescentlighting, an electric air compressor, paint booth lighting and an exhaust fan motor locatedin the paint booth. Rouse also opined that the explosion was most likely caused by anelectrical spark from the exhaust fan motor and halide lighting, as both were in operationat the time of the accident. It is uncontroverted that, in the mid-1990s, defendantconverted the building from a pole barn to a propane tank refinishing facility, and thatthe equipment serving as ignition sources had been installed by defendant prior tothird-party defendant's occupation of the property. Plaintiffs' expert averred thatdefendant's shift of its use of the building from agricultural purposes to propane tankrefinishing heightened the risk of fire to a "high hazard" and that the equipment it [*3]used was in violation of safety standards that pertain tofacilities where propane gas emissions are likely to occur. In fact, third-party defendantwas cited by the Occupational Safety and Health Administration for the failure of itsemployees, on the date of decedent's accident, to ensure that propane tanks were emptybefore bringing them inside the building "where unapproved electrical equipment waspresent." This evidence, viewed in a light most favorable to plaintiffs, creates an issue offact as to whether defendant's installation of ignition sources affirmatively created theallegedly dangerous condition that led to decedent's demise (see Stickles v Fuller,9 AD3d at 600-601; Garramone v Pickett, 291 AD2d 629, 629-630 [2002];Arvanete v Green St. Realty, 241 AD2d 909, 909 [1997]).
Next, defendant and third-party defendant assert that the reckless conduct ofthird-party defendant's employees was the sole proximate cause of the explosion and thatdefendant cannot be held liable to plaintiffs merely because it allegedly furnished thecondition that allowed for the accident. In order to sever the causal connection in thismatter, it must be demonstrated that the employees' actions were "extraordinary under thecircumstances, not foreseeable in the normal course of events, or independent of or farremoved from [third-party] defendant's conduct" (Markel Ins. Co. v Bottini Fuel, 116 AD3d 1143, 1147[2014], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see Ranaudo v Key, 83 AD3d1315, 1318 [2011]). Certainly, the act of third-party defendant's new employee ofbringing a tank that was not marked as empty into the building—against the directinstructions of his supervisor—was negligent. Nonetheless, defendant andthird-party defendant have failed to show that such conduct was unforeseeable, thereby"sever[ing] any causal link between [defendant's] negligence and [decedent's] injuries"(Litts v Best Kingston Gen.Rental, 7 AD3d 949, 951 [2004]). Notably, the record demonstrates that the dateof decedent's accident was not the first time that a tank containing propane had beenbrought inside the building. That third-party defendant expressly prohibited itsemployees from bringing tanks into the building until it was confirmed that they wereempty did not make it any less foreseeable that a tank containing propane gas might bebrought inside and exposed to the facility's ignition sources, thereby creating a risk of anexplosion like the one that occurred here. Inasmuch as it cannot be established as amatter of law that third-party defendant's employees' "actions were unforeseeableor unexpected," summary judgment was properly denied (Carson v Dudley, 25 AD3d983, 984 [2006]; see Derdiarian v Felix Contr. Corp., 51 NY2d at 316;Markel Ins. Co. v Bottini Fuel, 116 AD3d at 1147). Plaintiffs' alternatearguments for affirmance have been rendered academic by our decision.
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *:Although SupremeCourt also denied defendant's motion for summary judgment as to its contractualindemnification claim against third-party defendant, any issues with respect thereto aredeemed abandoned by defendant's failure to raise said issues in its brief (see Mills v Chauvin, 103AD3d 1041, 1044 n 2 [2013]).