New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen....

17
New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme Court, Kings County Docket Number: 295/2015-E Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001 (U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

Transcript of New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen....

Page 1: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

New York Mar. & Gen. Ins. Co. v Perotto Assoc.Eng'g, P.C.

2017 NY Slip Op 31790(U)August 25, 2017

Supreme Court, Kings CountyDocket Number: 295/2015-E

Judge: Debra SilberCases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various state andlocal government websites. These include the New YorkState Unified Court System's E-Courts Service, and the

Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

Page 2: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

1 of 16

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 9

NEW YORK MARINE AND GENERAL INSURANCE COMPANY AND TECHNOLOGY INSURANCE COMPANY a/s/o CRP CORTEL YOU, LLC and LIBERTY PLACE PROPERTY MANAGEMENT LLC,

Plaintiffs,

-against-

PEROTTO ASSOCIATES ENGINEERING, P.C.,

Defendant.

DECISION I ORDER

Index No. 295/2015-E Motion Seq. No. 1 Date Sub.: 06/01/17

Recitation, as required by CPLR 2219(a), of the papers considered in the review of the defendant's motion for summary judgment.

Papers Numbered

Notice of Motion, Affirmation and Exhibits annexed ...... .. ............ ... .. . 1 - 7

Affirmation in Opposition and Exhibits annexed ...... ... .............. ..... ... . 8 -14

Reply .... .... .. .... ..... .... .. ..................... .. ... ............. ...... .... .. ... ............... .. . 15 - 16

Upon the foregoing cited papers, the Decision/Order on this application is as

follows :

Defendant Perotta Associates Engineering, P.C. moves for an order, pursuant to

CPLR 3212, granting it summary judgment and dismissing the complaint. Plaintiffs , New

York Marine and General Insurance Company and Technology Insurance Company,

a/s/o/ CRP Cortelyou, LLC and Liberty Place Property Management LLC, oppose the

motion. For the reasons which fol low, the motion is granted and the complaint is

dismissed.

[* 1]

Page 3: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

2 of 16

Background

This is an action in which plaintiffs, as subrogees of their insureds, seek

reimbursement for the sums they paid to their insureds as a resu lt of a fire that took place

on March 10, 20131, in the basement of their subrogors' premises at 2156 Cortelyou

Road ("Premises"), Brooklyn , New York. The property is a four-story multiple dwelling with

thirteen apartments.

In or around March, 1991 , twenty-two years before the fire , defendant engineering

firm was retained by Crockett Fuel Oil Co. ("Crockett") on behalf of the prior owner of the

premises to file for a permit with the New York City Department of Buildings ("DOB") to

install a new boiler. Defendant submitted , as part of the permit application, a drawing of

the proposed boiler installation ("Drawing"; Exhibit D2). The drawing indicates where the

new equipment was to be located in the boiler room. It also includes the specific model

numbers of the equipment to be installed. It is an overhead view. It is drawn on a form

clearly provided by the DOB, with extensive verbiage on the left side clearly not written by

the defendant. The verbiage includes a provision that there is to be "a minimum of 18

inches clearance .. . provided around [the] boiler with 3'-0" in front. " There is no place on

the Drawing that indicates the height of the boiler room or the height of the boiler model

number specified. If other drawings were filed , they were not included in the motion

papers. On May 7, 1991 , the DOB issued a work permit for the installation of the boi ler. In

issuing the permit, the DOB stamped the Drawing as "Accepted under Directive 14 of

1975."

On March 10, 2013 at around 5:00 P.M., approximately six months after the

- 2 -

[* 2]

Page 4: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

3 of 16

current owner bought the building from the prior owner, who had owned it since 1990, a

fire broke out in the basement of the Premises , which caused significant damage. On

October 21, 2014, plaintiffs filed a similar action (Index No. 509697/2014) against

Crockett Fuel Oil Co. and six other defendants, including the defendant herein, seeking

the same damages as are sought in this action. In that action, plaintiffs alleged that

defendants Crockett and Perotta "installed and/or caused to be installed said boiler" and

"inspected and serviced said boiler" until sometime in July of 1996, when another of the

defendants commenced inspecting and servicing the boiler. Paragraphs 37 through 39 of

the 2014 complaint allege that:

37. Although Defendants, Crockett and Perotta Associates, did not have a direct contractual relationship with the insureds, their duty to the insureds arose as a matter of law because, during the course of their Boiler installation, inspection , and service work at the Building, they created an unreasonable risk of harm, increased the risk of fire , and launched a force or instrument of harm that extended from the date of their contracts with the prior Bui lding owners to the insureds.

38. Defendants, Crockett and Perotta Associates, breached their respective duties of care by acting in a negligent, grossly negligent, and/or reckless manner when they carelessly and improperly: (a) installed the Boiler chimney connector in such a way that its clearances were too near to combustible material , wh ich created a dangerous condition : (b) failed to warn that the Boiler chimney connector clearances were too close to combustible material ; (c) failed to properly inspect the Boiler; (d) fa iled to properly service the Boiler; (e) failed to hire sufficient and/or adequately trained personnel to ensure the proper installation, inspection, and servicing of the Boiler and to failed to ensure the safety of the Building; (f) failed to comply with applicable statutes, rules, regulations, and ordinances; (g) created and/or allowed a dangerous condition to exist and persist in the Boiler and the Building; (h) failed to take precautions or measures to prevent the fire Occurrence and to ensure the safety of the insureds' property; and (i) acted in so

1 Some of the documents state that the fire was on March 9, 2013, which appears to be incorrect. - 3 -

[* 3]

Page 5: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

4 of 16

negligent, grossly negligent, and/or reckless a manner and through other culpable conduct as to evince a complete disregard for the safety of the insureds' property.

39. The negligence of defendants, Crockett and Perotto Associates, was the sole and proximate cause of the Plaintiffs' damages.

The court notes that the complaint does not allege that defendant Perotto prepared

its drawings negligently for the permit application or that the Drawing failed to provide for

a specific amount of clearance between the flue piping (the boiler - to - chimney

connector) and the ceiling or that it failed to notify the property owner, Crockett or the

Department of Buildings that the boiler - to - chimney connector was installed too close to

combustible material. On December 4, 2014, plaintiffs discontinued the action against

defendant Perotto without prejudice, because (as is stated in the complaint in this action)

plaintiff failed to comply with CPLR 214-d by serving defendant Perotto with a notice of

claim. Plaintiffs then amended their complaint a few weeks later to remove all references

in the caption to defendant Perotto, but left Perotto in the enumerated allegations and in

the wherefore clause, thereby blaming a party not sued therein, albeit jointly with Crockett

in all applicable references. That action (Index No. 509697/2014) is presently on the

court's trial calendar on October 26, 2017. No motion to consolidate the two actions has

been made.

In the instant action , plaintiffs served a notice of claim dated December 12, 2014

which again alleges what the complaint in the prior action alleged, as quoted above,

numbered as paragraphs 13-15 in the notice of claim. The plaintiffs then filed and served

the complaint in this action , which is dated March 8, 2016. The complaint annexes and

incorporates the prior complaint and refers to it as the "main action ." However, the

- 4 -

[* 4]

Page 6: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

5 of 16

complaint in this action adds many other allegations regard ing defendant Perotto which

are not included in the notice of claim , all of which are alleged to have occurred in 1991.

These include:

15. Prior to May 17, 1991 , Crockett entered into a contract with the prior owner of the Building pursuant to which Crockett was to install the Boiler in the Building based upon the designs/p lans of Perotto Associates in a safe and reasonable manner, inspect and service the Boiler in a safe a reasonable manner, and inform the owner of any dangers associated with the installation, status of, and use of the Boiler.

16. On or about March 18, 1991 , Perotto Associates prepared a design drawing ("Drawing") for the replacement of the existing oil­fired boiler in the existing boiler room with a new specified oil-fired boiler, which included the make and model of both the new Boiler and the new burner equipment.

17. On or about May 17, 1991 , Perotto Associates and Crockett, through their employees and/or agents, designed, installed and/or caused to be installed said Boiler in the Building.

18. This Drawing included a "PART PLAN OF EXIST. CELLAR" that pictorially illustrated the existing boiler and showed the location of the boiler unit and the existing legal chimney.

19. The Drawing also depicted the chimney connector layout intended to serve the boiler installation by routing/conveying oil burner effluent from the 10 inch diameter boiler outlet to the chimney breach. This drawing specified the minimum clearance to combustibles around the new boiler at 18 inches.

20. The Drawing does not contain minimum clearances for the chimney connector, which was designed to be installed between the new boiler and the chimney. The applicable codes and reference standards required an 18 inch minimum clearance to combustibles above the design intended chimney connector.

21. The existing boiler room ceiling height was 84 inches and included a 3 inch floor mounting pad for the boiler.

22. The new boiler specified in the Drawing to be installed in the Building was 59 inches high and had a manufacturer's requirement for a 13 inch riser/manual damper assembly to be installed atop the top mounted, boiler effluent outlet connector.

23. The top elevation of this specified riser/manual damper assembly was 75 inches above floor level, which resulted in the top aspect of this installed chimney connector element only having a clearance of 9 inches to the boiler room ceiling .

- 5 -

[* 5]

Page 7: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

6 of 16

24. This 9 inch clearance between the chimney connector element and the boiler room ceiling was significantly less than the required 18 inches of clearance mandated by the code, including any permitted reductions.2

25. The Drawing further failed to provide any particular information or written notation to inform the installer that the specified equipment could not be installed in a standard manner due to the limited headroom above the boiler.

26. A proper design/drawing would have anticipated that when a 90 degree elbow was attempted to be connected to the installed 13 inch riser/manual damper assembly, a physical interference with the ceiling would occur.

27. Due to the failure of the Drawing to advise Crockett on how to install the specified equipment, Crockett resorted to cutting a 2 foot square ceiling opening , approximately 4 inches in depth, directly above the chimney connector assembly elements (the 13 inch riser/manual damper assembly and 45/90 degree swivel elbow) that extended upward from the boiler top outlet aspect. This resulted in inadequate clearance to the combustible ceiling joists.

Defendant's Arguments In Support Of Its Motion

In support of its motion for summary judgment dismissing plaintiffs' complaint,

defendant first argues that there exists no triable issue of material fact. Defendant argues

that a motion for summary judgment brought pursuant to CPLR 3212 must be analyzed

under the substantial basis standard, which requires plaintiffs to demonstrate that a

substantial basis in fact and law exists to believe that defendant's conduct was the

proximate cause of plaintiffs ' injuries. Defendant asserts that there is no genuine or

material issue of fact regarding defendant's lack of involvement in and responsibility for

the design, installation, inspection, and servicing of the boiler. Defendant submits an

2 The applicable Building Code (1968) provides that the required 18 inches is reduced to 12 inches if the ceiling is lined with sheet metal above the boiler. Here, it was lined with sheet metal, but the installers cut a two-foot square opening in the sheet metal, as the chimney connector vent pipe needed space to turn, so that it could reach the chimney several feet away.

- 6 -

[* 6]

Page 8: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

7 of 16

affidavit of its President, Robert Perotto, who avers that defendant was retained by

Crockett, who was hired by the prior owner of the Premises, solely to obtain a work

permit, and that the Drawing was only to be used for the express purpose of obtaining a

work permit to install a new boiler and burner. Mr. Perotto states that his firm did not

install the boiler, supervise its installation or certify to the DOB that it was properly

installed. Mr. Perotto also states that his firm never inspected the installation, nor did they

prepare any annual inspection report for the premises.

Second, defendant argues that it does not owe a duty of care to plaintiffs or their

subrogors, because defendant was solely retained to obtain a work permit and was not

responsible for the design, installation, inspection, or servicing of the boiler. Defendant

asserts that because it did not owe any duty of care to the prior property owner or his

assignees, it is not liable as a matter of law.

Third , defendant argues that plaintiffs have failed to prove that defendant's conduct

was the proximate cause of the fire . Defendant contends that the boiler was installed and

inspected by Crockett and then was inspected and serviced by four other companies (the

defendants in the "main" action) in the many years between the time Crockett's contract

ended (1996) and the fire , and that Crockett's work and annual inspections, along with

approximately seventeen other annual boiler inspections which were filed with the DOB,

as is required for multiple dwellings, constitute superseding acts that break the chain of

causation linking defendant's alleged negligent conduct and the fire . Defendant reasons

that the Drawing could not reasonably be relied upon to install the boiler because the

Drawing does not specify the height of either the boiler or the boiler room ceiling .

- 7 -

[* 7]

Page 9: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

8 of 16

Defendant also asserts that the text on the Drawing (either required by or placed thereon

by the DOB) stating that there is to be "a minimum of 18" clearance ... provided around

[the] boiler with 3'-0" in front" should be reasonably construed as including the flue piping

needed to attach the boiler to the chimney. Defendant thus argues that Crockett clearly

selected model numbers for the equipment which it should have known were too large for

the available space.

Plaintiffs' Opposition

In opposition to the motion seeking summary judgment dismissing the complaint,

plaintiffs first argue that defendant owed plaintiffs' subrogor a duty of care because its

design was approved under Directive 14 of 1975, pursuant to which, plaintiff claims, the

"filing representative" assumes responsibility for the project. Directive 14 provides that,

"[w]here any work is found not in compliance with plans or not in compliance with

applicable laws, it shall be corrected and if not corrected, the department shall be notified

by the architect or engineer and a violation requiring elimination of the defective work

shall be filed." New York City Department of Buildings Directive 14 of 1975.

Second, plaintiffs argue that defendant failed to establish its prima facie case for

dismissal by failing to proffer an affidavit of a licensed design professional stating that

defendant's Drawing conformed to applicable professional standards.

Third , plaintiffs argue that genuine issues of material fact exist that require denial

of defendant's motion for summary judgment. Plaintiffs suggest that there is a question of

fact as to whether defendant was negligent by failing to provide in the (overhead) Drawing

that the 18 inch clearance requirement specifically included the flue piping , rather than

just the boi ler. Additionally, plaintiffs argue that proximate cause is an issue that must be

- 8 -

[* 8]

Page 10: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

9 of 16

determined by a jury.

Plaintiffs submit an affidavit of Kenneth M. Garside, P.E., CFEI , of Affiliated

Engineering Laboratories, Inc., who performed a forensic engineering investigation of the

Premises. Mr. Garside determined that the fire occurred due to long-term heat exposure

to wooden joists, which was caused by insufficient clearance between the flue piping and

the combustible ceiling and floor joists. Mr. Garside further suggests that the Drawing

created by defendant failed to provide any instructions as to the necessary clearance for

the flue piping , which led to the improper installation of the boiler and permitted the

nearby combustible (wood) material to be exposed to long-term, low-heat exposure, and

resulted in the fire on March 10, 2013.

However, Mr. Garside states, in his lengthy report dated January 17, 2014, which

is included in the court file in the related action, (509697/14) the following:

Discussion

The inadequate boiler chimney connector clearances were and should have been open and obvious to servicing/inspection company technicians as the boiler flue connection and connected vent piping were located in plain view at the top and near the front of the equipment and would have been readily observed whenever entering the boiler room. The 2-foot square ceiling cutout would have been an unmistakable sign that an inadequate clearance condition existed . It is well settled that when wood is subjected to a long-term, low-heat exposure, a reduced ignition temperature will result to cause a fire . As such , the subject conflagration was the direct result of improper installation, inspection and servicing by those entities engaged by the property owner to properly maintain the subject steam boiler equipment. (E-file document #245)

Defendant's motion requests that the court grant it summary judgment and dismiss

- 9 -

[* 9]

Page 11: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

10 of 16

plaintiffs' complaint in its entirety.

Pursuant to CPLR 3212 (b) "the proponent of a summary judgment motion must

make a prima facie showing of entitlement to judgment as a matter of law, tendering

sufficient evidence to demonstrate the absence of any material issues of fact. " Alvarez v

Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). Upon

such a showing , summary judgment will be granted unless the opposing party "show[s]

facts sufficient to require a trial of any issue of fact." Zuckerman v City of New York, 49

NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980) (internal quotation marks and

citation omitted).

The action insofar as asserted against the defendant arises under CPLR 214-d,

which applies to certain actions against licensed engineers and architects. A motion to

dismiss an action arising under CPLR 214-d is subjected to "heightened scrutiny" and

"shall be granted unless the party responding to the motion demonstrates that a

substantial basis in law exists to believe that the performance, conduct or omission

complained of such licensed architect [or engineer] . .. was negligent and .. . a proximate

cause of personal injury . . . complained of by the claimant" (CPLR 3211 [h]) . "[A] court

reviewing the sufficiency of a complaint under CPLR 3211 (h) must . .. determine

whether the claim alleged is supported by such relevant proof as a reasonable mind may

accept as adequate to support a conclusion or ultimate fact" (Castle Vil. Owners Corp. v

Greater N. Y. Mut. Ins. Co., 58 AD3d 178, 183, 868 NYS2d 189 [1 st Dept 2008] [internal

quotation marks omitted]). See Schmitt v Spector, 129 AD3d 1052, 1052-1053 [2nd Dept

2015); Kenny v Turner Constr. Co., 107 AD3d 412 [1st Dept 2013).

The Court of Appeals has explained "[a]n interruption of the nexus between

- I 0 -

[* 10]

Page 12: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

11 of 16

defendant's negligence and plaintiffs injury by the act of a third party may affect

defendant's liability. An intervening act will be deemed a superseding cause and will

serve to relieve defendant of liability when the act . . . so attenuates defendant's

negligence from the ultimate injury that responsibility for the injury may not be reasonably

attributed to the defendant" (Kush by Marszalek v City of Buffalo, 59 NY2d 26, 33 [1983]).

"If the intervening act is .. . independent of or far removed from the defendant's conduct,

it may well be a superseding act which breaks the causal nexus" (Derdiarian v Felix

Contr. Corp., 51 NY2d 308, 315 [1980]).

Plaintiffs ' claims herein cannot withstand defendant's summary judgment motion

because plaintiffs fail to demonstrate that a substantial basis in fact and law exists to

show that defendant's alleged negligence, carelessness, or recklessness was the

proximate cause of the March 10, 2013 fire. According to the DO B's records, which are

publicly available on the internet and which the court takes judicial notice of, the boiler

was inspected approximately twenty times for the preparation and filing of the required

annual boiler inspection reports between the time of its installation in 1991 and the date of

the fire. In addition , the current owner had a professional inspect the premises before he

purchased it. This report is EFile document 255 in the "main" action . The report is dated

September 26, 2012 and states, at page 16, that the boiler was observed to be in average

to fair condition , was twenty years old and would need to be replaced in approximately

ten years.

The court also notes that the notice of claim served herein cannot be claimed to

have given the defendant notice of the claim. The complaint, filed more than a year later

- 11 -

[* 11]

Page 13: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

12 of 16

and after considerable discovery had been conducted in the "main" action , alleges totally

different facts and actions on defendant's part as the basis of the suit against defendant

than are alleged in the notice of claim. These new allegations clearly acknowledge that

defendant did not install, inspect or service the boiler, while the notice of claim solely

alleges that defendant, along with Crockett, installed, inspected and serviced the boiler.

Defendant has submitted an affidavit of its President, Robert Perotta, who avers

that defendant was never even informed that the boiler was in fact installed and that his

company was not asked to and did not sign off on or conduct any inspections of the

boiler. In plaintiffs' earlier "main" action (Index No. 509697/2014), plaintiffs assert

negligence claims against five other companies for their alleged negligent inspection and

maintenance of this same boiler from 1991 through 2013. In that action's complaint,

plaintiffs state that defendant CAM Energy Heating and Air Conditioning , Inc. inspected

and serviced the boiler just hours before the fire occurred . These inspections of the boiler

and the servicing of it for twenty-plus years after it was installed, including the day before

and the day of the fire , constitute superseding acts that break the causal nexus between

defendant's alleged negligence and the fire . Further, in this matter, defendant claims they

merely obtained a permit to install a boiler in 1991 from the DOB and did nothing further

afterwards. There is nothing in the record that indicates that this is not an accurate

description of the limited work defendant Perotta performed. There is no evidence to

indicate whether an engineer certified the installation, or if the DOB sent an inspector to

the Premises to certify the work.

Exhibit D1 to the defendant's motion is a copy of the application for the work permit

filed with the DOB. It lists Crockett as "installer" and is signed by an employee of

- 12 -

[* 12]

Page 14: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

13 of 16

Crockett. Perotta is listed as the "applicant" and "filing representative." Mr. Perotta

signed the application where required . The form states clearly that the boiler is not to be

put into operation after installation until a certification is issued by a boiler inspector.

There is no certification in the Exhibit. Exhibit D2 is the Drawing, which , as stated above,

is an overhead floor plan. Exhibit D3 is a copy of the permit. Plaintiffs opposition includes

copies of the insurance policies and proof of loss information, none of which is relevant to

the issues herein. Mr. Garside's affidavit is the only relevant document in admissible

form. As noted above, he attributes negligence to defendant in his affidavit, but in his

report filed in the "main" action , he also attributes fault to all of the defendants therein ,

including each and every company that inspected and serviced the boiler over the twenty­

two years since it was installed.

In Document 116 in the related "main" action , a private cause and origin report

from Guardian Investigation Group, Inc., the superintendent Mr. Roman reported to the

investigator on March 15, 2013 that on the day before the fire and on the day of the fire

he found the boiler was not working when he arrived at work in the morning. He called

the management office and on both days, a service repairman arrived to service the boiler

and the repairman was able to re-start the boiler. He stated that it was very cold on the

day of the fire and the repairman told him he needed to order parts and would be

returning on a future date to install them. The report opines that "we believe that it [the

furnace] ran for an extended period of time after being repaired in order to satisfy the

thermostat and achieve a comfortable temperature within the building, thus producing an

excessive amount of heat buildup within the flue pipe ... we could not eliminate the

- 13 -

[* 13]

Page 15: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

14 of 16

possibility that the subject furnace did not malfunction in some way causing it to run

continuously on the day of the fire and thus produce an even greater amount of heat than

normal. "

"Proximate cause analysis incorporates a 'test of temporal duration,' which asks if

'the occurrence of the injury [was] tied to the claimed negligent act or omission within a

reasonable lapse of time' (Williams v State, 969 NE2d 197, 199 [2012], quoting Pagan v

Goldberger, 51 AD2d 508, 511 [2d Dept 1976]). Here, the lapse of 22 years between

defendant's alleged act of negligence and the fire is not a reasonable lapse of time.

One other point should be addressed. The absence of an expert's affidavit is not

fatal to defendant's motion for two reasons. First, the complaint does not allege

professional malpractice, but only negligence. Thus, as the plaintiffs sidestep the issues

of statute of limitations, privity and duty, they cannot turn around and argue that an expert

affidavit is required . See Michael v He Gin Lee Architect Planner, PLLC, _ AD3d_,

2017 NY Slip Op 06177 [2d Dept 2017]; Ossining Union Free School District v Anderson

LaRocca Anderson, 73 NY2d 417 (1989). Second , the basis of the defendant's argument

is not that it did not depart from good and acceptable engineering practice, as that is not

an allegation in the complaint, but that Crockett did not permit it to complete the job, so

they never saw the installation nor did they conduct any inspection of it, and as a result,

the Drawing submitted for the permit, without more, cannot be the proximate cause of the

fire . See 530 E. 89 Corp. v Unger, 43 NY2d 776, 777 (1977); 43 Park Owners Group LLC

v Commonwealth Land Tit. Ins. Co., 121 AD3d 937, 939 [2d Dept 2014] . Defendant also

argues that, in light of all of the boiler inspections and in light of the service calls on the

day of the fire and on the day before, even if it was negligent, its negligence in 1991 was

- 14 -

[* 14]

Page 16: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

15 of 16

not the proximate cause of the 2013 fire . Movants have made a prima facie case for

summary judgment, and plaintiffs have not overcome defendant's motion. The arguments

they make amount to little more than speculation. The claim that defendant's conduct in

1991 was the proximate cause of the fire in 2013 is simply too attenuated. Arbor Realty

Funding, LLC v Herrick, Feinstein LLP, 2012 NY Slip Op 33522[U] [Sup Ct, NY County

2012].

Accordingly, defendant's summary judgment motion is granted, and plaintiffs'

complaint is dismissed in its entirety.

This shall constitute the decision and order of the court.

Dated: August 25, 2017

- 15 -

ENTER:

Hon. Debra Silber, J.S.C.

Hon. Debra Silber Justice Sui>reme Court

[* 15]

Page 17: New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. · 2017-08-29 · New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng'g, P.C. 2017 NY Slip Op 31790(U) August 25, 2017 Supreme

FILED: KINGS COUNTY CLERK 08/25/2017 10:50 AM INDEX NO. 295/2015

NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/25/2017

16 of 16

., (j k ...

[* 16]