A&M E. Broadway LLC v. Hong Kong Supermarket, Inc.

• Decision Date: 15 May 2015
• Docket Number: Index No. 117746/2009
• Court: New York Supreme Court
• Parties: A&M EAST BROADWAY LLC, TRIPLE A LLC, and HO YIN WONG a/k/a PETER WONG, Plaintiffs v. HONG KONG SUPERMARKET, INC., and PCK REALTY, INC., Defendants

2015 NY Slip Op 30887(U)

A&M EAST BROADWAY LLC, TRIPLE A LLC, and HO YIN WONG a/k/a PETER WONG, Plaintiffs
v.
HONG KONG SUPERMARKET, INC., and PCK REALTY, INC., Defendants

Index No. 117746/2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

FILED: May 27, 2015
May 15, 2015

DECISION AND ORDER

APPEARANCES:

For Plaintiffs
Marie Ng Esq.
Sullivan Papain Block McGrath & Cannavo P.C.
120 Broadway, New York, NY 10271

For Defendant Hong Kong Supermarket, Inc.
Michael J. Case Esq.
LeClairRyan, P.C.
885 3rd Avenue, New York, NY 10022

For Defendant PCK Realty, Inc.
David S. Kritzer Esq. and Donna Prox Esq.
180 East Main Street, Smithtown, NY 11787

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiffs sue to recover for defendants' negligence that caused damage to plaintiffs' premises at 107 East Broadway and 93 Henry Street in New York County. Plaintiffs claim Hong Kong Supermarket, Inc., a tenant of the building at 109 East Broadway, adjacent to 107 East Broadway and 93 Henry Street, and co-defendant owner of the building, PCK Realty, Inc., created conditions in their building that caused a fire to spread there

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May 14, 2009, leading to their building's collapse. The collapse of the building at 10 9 East Broadway in turn necessitated the demolition of the premises at 107 East Broadway. The premises at 93 Henry Street sustained damage from smoke and water.

Hong Kong Supermarket moves for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b). For the reasons explained below, the court denies Hong Kong Supermarket's motion.

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, Hong Kong Supermarket must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). Only if Hong Kong Supermarket satisfies this standard, does the burden shift to plaintiffs to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of Hong Kong Supermarket's motion, the court construes the evidence in the light most favorable to plaintiffs. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4

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N.Y.3d 35, 37 (2004). If Hong Kong Supermarket fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in plaintiffs' opposition. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384.

III. HONG KONG SUPERMARKET'S FAILURE TO MEET ITS BURDEN

Hong Kong Supermarket, supported by PCK Realty, insists on entitlement to summary judgment because plaintiffs have produced no evidence of Hong Kong Supermarket's negligence in causing the fire to ignite or spread so as to affect plaintiffs' premises. Contrary to defendants' contention, plaintiffs' failure to produce evidence of defendants' negligence does not alter Hong Kong Supermarket's burden upon its summary judgment motion. Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 A.D.3d 546, 547 (1st Dep't 2010). Defendants may not obtain summary judgment merely by pointing to the gaps in plaintiffs' evidence. Coastal Sheet Metal Corp. v. Martin Assoc., Inc., 63 A.D.3d 617, 618 (1st Dep't 2009); Bryan v. 250 Church Assoc., LLC, 60 A.D.3d 578, 578 (1st Dep't 2009); Torres v. Industrial Container, 305 A.D.2d 136, 136 (1st Dep't 2003); Deutsche Bank Natl Trust Co. v. Spanos, 102 A.D.3d 909, 911 (2d Dep't 2013).

A. Hong Kong Supermarket's Expert Evidence

Hong Kong Supermarket relies on a New York City Fire Department report dated July 6, 2009, which the parties at oral argument June 27, 2013, stipulated to be authenticated and admissible for purposes of determining this motion for summary

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judgment. Hong Kong Supermarket also relies on an affidavit dated March 12, 2013, by William Hayden, a fire and explosion investigation expert. Hayden recites the principles for determining the cause of a fire, although not specifically its spread, and concludes that: "Any determination of a fire's cause should be based on evidence rather than on the absence of evidence." Aff. of Michael Case Ex. A, at 4. Since Hayden was unaware of the evidence required to determine the cause of the fire or its spread, he concludes that the cause may not be determined.

Hayden also comments that nothing he reviewed indicated that Hong Kong Supermarket's leased premises violated any safety statutes or regulations, required further fire safety systems, or were not being maintained. This comment reflects plaintiffs' burden at trial, not defendants' burden to obtain summary judgment as discussed above, and, as to whether defendants violated a statute or regulation, usurps the court's determination for summary judgment and the factfinder's determination at trial. Buchholz v. Trump 767 Fifth, 5 N.Y.3d 1, 7 (2005); Lopez v. Chan, 102 A.D.3d 625, 626 (1st Dep't 2013); Reyes v. Morton Williams Associated Supermarkets, Inc., 50 A.D.3d 496, 497-98 (1st Dep't 2008). See Burtman v. Brown, 97 A.D.3d 156, 161 (1st Dep't 2012); Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 307 (1st Dep't 2007).

To be admissible, an expert's opinion must be based on facts in the record or personally known to the expert. Hambsch v. New

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York City Tr. Auth., 63 N.Y.2d 723, 725 (1984); Belmer v. HHM Assoc., Inc., 101 A.D.3d 526, 529 (1st Dep't 2012). See San Andres v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, 592 (1st Dep't 2012); Goldin v. Riverbay Corp., 67 A.D.3d 489, 490 (1st Dep't 2009). Under the exception for professionally reliable material, the expert may rely on evidence that has not been admitted but is accepted as reliable in the expert's profession. Hinlicky v. Drevfuss, 6 N.Y.3d 636, 648 (2006); Romano v. Stanley, 90 N.Y.2d 444, 452 (1997); Belmer v. HHM Assoc., Inc., 101 A.D.3d at 529.

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