Amica Mut. Ins. Co. v. Grgas, Action #1
| Decision Date | 31 October 2011 |
| Docket Number | Action #1,Action # 2,INDEX NO. 10340/09,INDEX NO. 2987/11,INDEX NO. 26253/09,SEQUENCE NO.: 02, 03,Action #3 |
| Citation | 2011 NY Slip Op 32917 |
| Court | New York Supreme Court |
| Parties | AMICA MUTUAL INSURANCE COMPANY a/s/o JUNE LONDON, Plaintiff, v. DINA GRGAS and JANET GRGAS DIORIO, Defendants. QBE INSURANCE CORPORATION a/s/o 4 ANCHORAGE LANE OWNERS, INC., Plaintiff, v. JANET GRGAS, Defendant, ENCOMPASS INSURANCE COMPANY OF AMERICA, as Subrogee of ANNE J. DIPASQUALE, ENCOMPASS PROPERTY & CASUALTY COMPANY, as Subrogee of MILDRED N. AUSTIN and ALLSTATE INSURANCE COMPANY, as Subrogee of MARY K. BONISLAWSKI, Plaintiff v. DINA GRGAS and JANET GRGAS a/k/a JANET J. DIORIO, Defendants. |
HON. ANTHONY L. PARGA
Reply Affirmation and Aff in Opposition & Exs............................................. 8
Reply Affirmation in Further Support & Exs.................................................. 9
Reply Affidavit in Further Support.................................................................. 10
Upon the foregoing papers, the motions for partial summary judgment on the issue of liability, pursuant to CPLR §3212, brought by plaintiff in Action #1 (Seq. 02), Amica Mutual Insurance Company a/s/o June London, by plaintiff in Action #2 (Seq. 01), QBE Insurance Corporation a/s/o 4 Anchorage Lane Owners, Inc., and by plaintiffs in Action #3 (Seq. 01), Encompass Insurance Company of America, a/s/o Anne J. Dipasquale, Encompass Property & Casualty Company a/s/o Mildred N. Austin, and Allstate Insurance Company a/s/o Mary K. Bonislawski, are granted. The cross-motion for summary judgment, pursuant to CPLR §3212, brought by defendants Dina Grgas and Janet Grgas a/k/ Janet J. Diorio, is denied.
The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court.
The above-captioned actions are property damage subrogation actions stemming from a fire that occurred on June 1, 2007. The fire is alleged to have begun in Apartment 3B of a two-story cooperative apartment complex located at 3 Anchorage Lane, Oyster Bay, New York, which is part of the 4 Anchorage Owners, Inc. complex. Apartment 3B was owned by defendant Dina Grgas, who lived there with her cousin, defendant Janet Grgas. It is alleged that the fire began on the deck of Apartment 3B and spread to several other apartments throughout the building, causing property damage to several apartments. All plaintiffs move for summary judgment, arguing that the sole proximate cause of the fire at issue was the negligent and careless disposal of smoking materials by the defendant Janet Grgas. In support of their motions, plaintiffs submit, inter alia, a certified copy of Fire Marshal Richard Maickel's Fire Origin and Cause Report; an affidavit of fire expert, Frank Johnson; the Nassau County Police Department Case Report; the deposition transcripts of defendant Janet Grgas, Dina Grgas, and Richard Maickel; as well as color photographs.
The night before the fire, on May 31, 2007, defendant Janet Grgas smoked several cigarettes on the deck of her residence at Apartment 3B. She testified at her deposition that she used a flower pot on the deck, which contained dirt but no plant, to extinguish her cigarettesevery time she smoked. Janet Grgas submitted an affidavit in opposition to the motions wherein she later stated that she used an ash collector on the barbeque grill to extinguish the cigarettes and then placed the extinguished cigarette in the flower pot. Dina Grgas also testified that Janet Grgas would smoke on the deck and put her cigarettes in the flower pot.
Sometime between six and seven o'clock in the morning of June 1, 2007, Janet Grgas was awakened by her cousin, Dina Grgas, who told her that there was a fire on the deck. They tried to extinguish the fire with wet towels, but were unsuccessful. Janet Grgas first observed the fire on the deck on the same side of the door where the flower pot was located. Fire Marshal Maickel arrived at the fire scene on June 1, 2007 at approximately 7:16 in the morning. He walked through the fire scene and spent time investigating the fire. Based upon his observations, he testified that the damage appeared to be at the rear of the building and he concluded that the fire originated on the second floor deck to the left of the door and that it was the result of careless disposal of smoking materials, which was classified as "accidental." Fire Marshal Maickel testified that his conclusion was based upon his personal observation of the extent of the damage, interviews with occupants, and his interview with the superintendent of the building, Mr. Mendozza. Mr. Mendozza reported that he saw fire on the deck that was extending up the exterior rear wall of the involved apartment. Fire Marshal Maickel also testified that he saw fire damage on the floor of the deck and the wall going up from it.
Fire Marshal Maickel testified that in the area of origin of the fire, he observed a quantity of discarded cigarette butts and that his interview with Janet Grgas indicated that she smoked in that location. Mr. Maickel testified that where people use an old flowerpot to extinguish a fire, the dried roots and vegetation can have a pyrophoric reaction, causing the flower pot to burn. In addition, Mr. Maickel eliminated the electrical causes of the fire, in part, because there were no electrical circuits in the vicinity of the area of origin and that electrical sources were remotely located. Additionally, the burn patterns that he witnessed were not consistent with a fire originating at the light fixture. He testified that had the light been the cause of the fire, the area where the light was located would have had the deepest burn and there would have been a "V" coming up from the light because fire does not normally burn downward. Fire Marshal Maickel did not come across any evidence that indicated that the source of the fire was electrical in nature.
Fire Marshal Maickel's Fire Origin and Cause Report concluded that the fire was caused by the "careless disposal of smoking materials" and stated that
In addition, the expert report of Frank W. Johnson, a certified fire and explosion investigator who inspected the loss site after the incident at issue, concluded that the fire originated at the wood deck of the exterior of Apartment 3b and that the fire was caused by Janet Grgas's careless disposal of smoking materials.
Lastly, plaintiffs herein argue that the court has previously addressed the issue of causation and determined that the defendants Dina Grgas and Janet Grgas were responsible for the fire on June 1, 2007. A separate subrogation action was brought in Nassau County Supreme Court with the caption, Homesite Insurance Group a/a/o Ernst and Anita Nagel v. Dina Grgas and Janet Grgas, bearing index number 1712/08 (hereinafter referred to as "Homesite v. Grgas"). Plaintiff in said action moved for summary judgment on identical grounds. Justice Adams granted plaintiff's motion on default, by order dated January 12, 2010. The defendants failed to submit opposition to said motion. As such, plaintiffs argue that liability has already been determined against the defendants herein and that the finding of summary judgment against the defendants in the Homesite v. Grgas case should be binding upon the defendants herein.
Accordingly, all plaintiffs contend that they are entitled to summary judgment on liability grounds.
In opposition and in support of their cross-motion for summary judgment, defendants Dina Grgas and Janet Grgas submit, inter alia, affidavits and also an expert report by Howard H. DeMatties, a forensic electrical engineer retained on March 6, 2009 to perform a forensic electrical investigation into this matter. While Howard H. DeMatties did not inspect the fire scene itself because he was not retained until two years after the fire, he reviewed photographs, Fire Marshal Maickel's Origin and Cause Report, reports of investigators involved in the Homesite v. Grgas action, the report of Frank Johnson, and the deposition transcripts of Dina Grgas, Janet Grgas, and Frank Maickel, among other evidence. He also participated in a joint examination of physical evidence which took place on May 13, 2009 with all parties to this action. Mr. DeMatties opines, based upon his review of the physical evidence and the reports of the various investigators and transcripts, that the electrical system in Apartment 3B cannot be eliminated as a source of ignition for this fire and that the fire scene investigation was not performed according to the standards established by NFPA 921. In addition, defendants contend they had no notice that potting soil could ignite, that it was not foreseeable that extinguishing a cigarette in the manner in which Janet Grgas did on the night of the incident could start a fire, and that it has not been...
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