Kookmin Best Ins. Co., Ltd. v. Curtis Roberts Real Estate LLC

Kookmin Best Ins. Co., Ltd. v Curtis Roberts Real Estate LLC 2024 NY Slip Op 34281(U) December 3, 2024 Supreme Court, New York County Docket Number: Index No. 160103/2019 Judge: Sabrina Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 12/04/2024 03:51 P~ INDEX NO. 160103/2019 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/04/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice -----X INDEX NO. 160103/2019 KOOKMIN BEST INSURANCE CO., LTD. A/S/O CEDRA 07/09/2024, HEALTHCARE LLC, 08/06/2024, MOTION DATE 08/06/2024 Plaintiff, MOTION SEQ. NO. 003 004 005 - V- CURTIS ROBERTS REAL ESTATE LLC, WYNNE PLUMBING AND HEATING CORP., DECISION + ORDER ON MOTION Defendant. -----------------------------------------------------------X WYNNE PLUMBING AND HEATING CORP., Third-Party Plaintiff, - V- MARTIN PLUMBING & HEATING, INC., Third Party-Defendant. --------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 121, 122, 123, 124, 125,126,127,128,129,130,131,132,133,134,135,136,137,138,139,140,141,142,143,144,145, 146, 147 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER) The following e-filed documents, listed by NYSCEF document number (Motion 004) 101, 102, 103, 104, 105,106,107,108,109,110,111,112,154,155,156,157,158,159,160,161 were read on this motion to/for JUDGMENT - SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 005) 113, 114, 115, 116, 117,118,119,120,149,150, 152, 153, 162, 163 were read on this motion to/for JUDGMENT-SUMMARY BACKGROUND Plaintiff commenced this subrogation/negligence action claiming property damage and business interruption seeking damages in the amount of $272,372.58, caused by a sprinkler leak that originated on the vacant fourth floor of724 Elton Avenue, Bronx, New York (the

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"Building") on January 9, 2018. Plaintiffs insured, Cedra Healthcare LLC ("Cedra"), is a tenant of the first floor of the Building. Curtis Roberts Real Estate LLC ("Curtis") is the owner of the Building. Defendant/third-party plaintiff Wynne Plumbing and Heating Corp. ("Wynne") is alleged to have made repairs after the flood and to have inspected the sprinkler system periodically prior to the incident.

By decision and order dated June 2, 2022, the Court granted Curtis's summary judgment motion to the extent of dismissing the subrogation claim against it, but denied the relief as to the cause of action for the $1000. 00 deductible, holding that Curtis "failed to establish entitlement to summary judgment on the issue of negligence and that plaintiff has raised triable issues of fact in regards to same." By decision and order dated May 9, 2023, the Court denied Curtis's summary judgment motion to dismiss all cross claims against it as premature, without prejudice to renewal upon the completion of discovery.

PENDING MOTIONS On June 12, 2024, third-party defendant Martin Plumbing & Heating, Inc. ("Martin") moved for an order pursuant to CPLR § 3212 granting it summary judgment dismissing all claims against it (mot. seq. 3).

On June 5, 2024, Curtis moved for an order pursuant to CPLR § 3212 granting it summary judgment, dismissing all crossclaims against it, marking plaintiffs final cause of action (lk deductible) against it settled and dismissing the claim as waived, and amending the caption deleting it as a primary defendant and converting any remaining crossclaims against it into third- party claims. (mot. seq. 4).

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On June 11, 2024, Wynne moved for an order pursuant to CPLR § 3212, granting it summary judgment dismissing plaintiffs complaint, and all crossclaims and counterclaims asserted against it, and granting it summary judgment on its claims for common law indemnity and/or contribution against Curtis. (mot. seq. 5).

The motions are consolidated herein and determined as set forth below.

ALLEGED FACTS Relevant Deposition Testimony Curtis Roberts ("CR"), president of Curtis, testified that when Curtis acquired the premises, it had a dry sprinkler system, which is pressurized by air as opposed to water. The Building had four floors, one stairwell. CR personally handled porter, management, and maintenance responsibilities for the building. Cedra became Curtis's first floor tenant in 2015 and hired a contractor perform a full gut renovation of the first floor for its pharmacy, including work on the sprinkler system. CR said that Wynne would come in and inspect the sprinkler monthly, which he believed was required by the City, to make sure it was operating properly, but that there was no maintenance contract with Wynne. CR testified that he was typically at the building several times a week, and would inspect the pressure gauges for the sprinkler system whenever he was in the building.

At the time of the incident, which occurred January 9, 2018, all floors of the building besides the first floor were vacant and unheated. CR was first informed of a leak when one of his workers on the third floor of the building told him that he heard water coming down from the fourth floor. CR arrived at the building 10-15 minutes later and saw water coming out of a sprinkler pipe located approximately eight feet from the exterior wall near the ceiling. He then ran to the basement and within 30 seconds closed the shut-off valve to the sprinkler system. The

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Bryan Kaplan, president of Wynne, testified that Wynee had performed plumbing work for Curtis on an "as needed" basis on multiple properties since 2003. It first performed work at the Building in 2015, including work on the sprinkler system. Kaplan also confirmed that Wynne performed an "annual sprinkler inspection" in September 2017, but claimed that Wynne performed no other work at the building prior to the incident. Kaplan testified that Wynne did not conduct regular inspections of the building, although it does perform that work at other locations and would have done so if asked. While Kaplan acknowledged that Wynne generated an invoice for work performed in July 2017, including an "annual sprinkler inspection," he claimed that this was a "dummy invoice" created at CR' s request for insurance purposes, and that no work was actually performed on that date. Kaplan said that he became aware of the leak when CR called his office to inform him that they had a frozen pipe and that the sprinkler system leaked. Kaplan sent a mechanic to repair and reset the system. He said he replaced the threaded T with another, and that he believed someone threw the broken one away but did not know who did so, though it would be his employees' typical practice to do so. He did not know of any photo or video taken of the broken part.

DISCUSSION Summary Judgment Standard To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the absence of any triable issues of fact. CPLR § 3212(b); Matter of New York City Asbestos Litig., 33 NY3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible

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Plaintiff's Claim for the $1000 Deductible Curtis contends that as plaintiffs only remaining claim against it after the Court's prior decision is for the $1000 deductible, and as it has offered to pay plaintiff that amount in full in exchange for a release but was refused, the claim should be deemed waived and dismissed.

In opposition, plaintiff argues that it has no obligation to accept Curtis's offer, and has not waived its claim, contending that nothing in the Court's prior order prohibits plaintiff from seeking a final judgment in this matter regarding liability, negligence and damages, and that it may still appeal the Court's decision after a final judgment has been rendered.

The Court rejects Curtis' position, unsupported by any authority, that plaintiff has waived its claim by refusing Curtis' settlement offer. Absent any other basis for dismissal of plaintiffs sole remaining claim against Curtis, for which the court previously found there remain triable issues of fact, the portion of Curtis's motion seeking dismissal of plaintiffs remaining claim for the $1000 deductible is denied.

Plaintiff's Claims against Wynne Wynne contends it was not negligent, arguing that it owed no duty to Cedra as it was not in not in privity with it and did not launch a force or instrument of harm. It contends that its maintenance activities were as needed and not routine or preventative, and thus it did not

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In reply, Wynne contests the existence of an implied contract, arguing that the conflicting testimony as to Wynne's alleged maintenance obligations shows that there was no meeting of the minds. It argues that Wynne's work on the sprinkler was too attenuated to find it liable.

Contractual obligations are insufficient to impose tort liability on non-contracting third parties, unless: (1) the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties; or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely. See Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 140 (2002).

Here, plaintiff is only asserting that the second Espinal exception applies. In All American Moving and Storage, Inc. v Andrews, the First Department found that a failure of the defendant to properly inspect a sprinkler system, which it was required to do pursuant to its

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Here, the facts are similar to All American except that it is undisputed that no written sprinkler maintenance contract existed. However, plaintiff contends that an implied-in-fact contract existed between Curtis and Wynne.

"[W]ith respect to implied-in-fact contracts, [b ]ased on the facts and circumstances surrounding the dispute as manifested in the acts and conduct of the parties, there must be an indication of a meeting of minds of the parties constituting an agreement." DG & A Mgmnt Serv., LLC v Securities Industry Ass 'n Compliance and Legal Division, 52 AD3d 922 (3d Dept 2008), quoting Berlinger v Lisi, 288 AD2d 523,524 (3d Dept 2001; see JG. Second Generation Partners, L.P. v Duane Reade, 17 AD3d 206 (1st Dept 2005).

Here, the testimony of Kaplan and Roberts is directly contradictory as to whether Wynne performed monthly inspections of the sprinkler system pursuant to an agreement with Curtis.

While Wynne argues that the absence of invoices for monthly inspections supports Kaplan's version, Kaplan testified that he created a fake invoice at Curtis's request, raising questions as to their accuracy. Thus, there remain triable issues of fact as to whether an implied-in fact contract existed between Wynne and Curtis, and whether Wynne owed a duty to Cedra pursuant to such contract, and Wynne's motion to dismiss plaintiff's claims against it is denied.

Res Ipsa Loquitur "[R]es ipsa loquitur is a rule of evidence that creates a permissible inference of negligence, not a rebuttable presumption." Shinshine Corp. V Kinney System, Inc., 173 AD2d 293 (I st Dept 1991 ). In order to prevail on a res ipsa theory, a plaintiff must establish: (1) the

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Here, it is uncontroverted that Roberts had access to and would inspect the sprinklers when he would visit the building. Thus, even if Wynne had an obligation to inspect the sprinkler, it did not have exclusive control over it. Thus, the doctrine of res ipsa loquitur is inapplicable.

Wynne's Crossclaims against Curtis Wynne seeks summary judgment on its crossclaims against Curtis for negligence, common-law indemnity and contribution, contending that the weight of evidence shows that it was not negligent, and Curtis was negligent.

Curtis opposes and seeks summary judgment dismissing those claims, arguing that Wynne and Curtis are not joint tortfeasors, and the claims against Wynne are based on their active negligence.

Here, as stated supra there remain questions of fact as to both Wynne and Curtis's negligence. Thus, both parties' motions are denied with respect to Wynne's crossclaims.

Third Party Claims against Martin Martin seeks dismissal of Wynne's third-party complaint against it, contending that it had no contract with any of the parties in the action and performed no work on the pipe at issue. They

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As Wynne only opposes dismissal of the portion of Martin's motion relating to spoilation sanctions, discussed further infra, Wynne's failure to oppose the remainder of Martin's motion seeking dismissal of the third-party complaint is deemed to be abandonment of those claims. See Sancino v Metropolitan Transportation Auth., 184 AD3d 534 (1st Dept 2020); Bonventre v Soho Mews Condominium, 173 AD3d 411 (1st Dept 2019); Ng v NYU Langone Medical Center, 157 AD3d 549 (1st Dept 2018); Saidin v Negron, 136 AD3d 458 (1st Dept 2016); Jospehson LLC v Column Financial, Inc., 94 AD3d 479 (1st Dept 2012). Thus, the third-party complaint is dismissed.

Plaintiff's request for Spoliation Sanctions against Wynne In its opposition papers to Wynne's motion, plaintiff argues that Wynne should be sanctioned for spoliation of evidence, citing its deposition testimony that it likely discarded the frozen sprinkler pipe without taking photos or videos of it.

In its reply papers, Wynne argues that there was no bad faith, as it did not anticipate litigation when it disposed of the items, and that the absence of the evidence negatively impacts Wynne as much, if not more so, than plaintiff.

"The party requesting sanctions for [spoliation] has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and 'fatally compromised its ability to defend [the] action."' Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717 (2d Dept 2009); quoting Lawson v. Aspen Ford, Inc., 15 AD3d 628, 629 (2d Dept 2005). "The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the

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Here, while Kaplan did not know for certain whether a Wynne employee discarded the broken pipe, he testified that it was likely and was what they would typically do. There is no question that the pipe is highly relevant evidence, as it is the "very instrumentality giving rise to plaintiffs injuries." Cummings v Central Tractor Farm & Country, 281 AD2d 792 (3d Dept 2001). However, Kaplan's testimony also indicates that the pipe was discarded prior to any litigation being commenced or contemplated. "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices." Aponte v Clove Lakes Health Care and Rehabilitation Center, Inc., 153 AD3d 593, 594 (2d Dept 2017), quoting Bill's Feed Serv., LLC v Adams, 132 AD3d 1400, 1401 (4th Dept 2015). Thus, spoliation sanctions are not appropriate here.

CONCLUSION Accordingly, it is hereby: ORDERED that Martin Plumbing & Heating, Inc.'s motion to dismiss the third-party complaint (mot. seq. 3) is granted and the third-party action is dismissed; and it is further

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ORDERED that Curtis Roberts Real Estate LLC's motion for summary judgment (mot.

seq. 4) is denied; and it is further ORDERED that Wynne Plumbing and Heating Corp.' s motion for summary judgment (mot. seq. 5) is denied; and it is further ORDERED that, within 20 days from entry of this order, plaintiff shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh);]; and it is further ORDERED that this constitutes the decision and order of this Court.

12/3/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FIN DISPOSITI GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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