Arrow Electronics, Inc. v. Stouffer Corp.

• Decision Date: 20 December 1982
• Citation: 117 Misc.2d 554,458 N.Y.S.2d 461
• Parties: ARROW ELECTRONICS, INC., Plaintiff, v. The STOUFFER CORPORATION, et al., Defendants.
• Court: New York Supreme Court

Page 461

458 N.Y.S.2d 461

117 Misc.2d 554

ARROW ELECTRONICS, INC., Plaintiff, v. The STOUFFER CORPORATION, et al., Defendants.

Supreme Court, Special Term New York County, Part I.

Dec. 20, 1982.

Kramer, Levin, Nessen, Kamin & Soll, New York City (Geoffrey M. Kalmus and Michael Dell, New York City, of counsel), for plaintiff.

Congdon, Flaherty, O'Callaghan, Reid & Van der Waag, P.C., Garden City (Alan E. Congdon and Robert F. Van der Waag, Garden City, of counsel), for defendants.

JOHN A.K. BRADLEY, Justice:

This action arises out of a fire which broke out on the third floor conference center wing of Stouffers' Inn of Westchester, located in Harrison, New York on December 4, 1980, shortly after 10 A.M. The fire spread rapidly, and 26 individuals perished. Among those who died were 13 employees of plaintiff Arrow Electronics, Inc. Plaintiff is now suing the owners of the Inn, the Stouffer Corporation ("Stouffers") a construction company, William L. Crow Construction Co. ("Crow") that had been retained by Stouffers in connection with the planning, design and construction of the Inn, a firm of architects who rendered services in connection with the planning, design and construction of the Inn and a firm of consulting engineers, Byers, Urban, King, White and Partners as Successor to Byers, Urban, Klug and Pittenger, Consulting Engineers, ("Byers") who performed mechanical engineering and electrical work on the Inn. Stouffer and Byers have moved to dismiss the causes of action against them and the entire complaint. Crow has moved to dismiss and for summary judgment.

The complaint alleges that in October and November 1980, plaintiff and Stouffer entered into an agreement under which Stouffer agreed to rent guest rooms and meeting rooms to plaintiff for its senior management level annual budget meetings to be held between November 30, 1980, and December 6, 1980. The complaint further states that the agreement implied that the portions of the Inn furnished to Arrow were suitable and safe for the use contemplated, reasonably free of fire hazards and reasonably equipped with devices to minimize the danger of fire. The complaint also states that the defendants had warranted that the Inn was safe when in fact it was not. The complaint alleges causes of action in negligence, for wrongful, wanton, wilful and intentional conduct, breach of express and implied warranty, breach of contract and strict liability.

Plaintiff seeks $5,000,000 compensatory and $5,000,000 punitive damages for the loss of its management, costs of recruiting new employees, loss of books, records and papers, death benefits to widows and estates of its employees and lost profits.

The defendants contend that, except for the claim for the loss of books and records, the claims in the complaint are all allegations of corporate damage arising from the death of its employees. This is, they say, an action for wrongful death. Such actions are purely statutory and plaintiff has no statutory right to recover.

In New York, there is no common law right to sue for wrongful death and the Court of Appeals has refused to "create" a common law counterpart to the statutory wrongful death cause of action. Carrick v. Central General Hospital, 51 N.Y.2d 242, 434 N.Y.S.2d 130, 414 N.E.2d 632; Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288; Ratka v. St. Francis Hospital, 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027.

The statute governing wrongful death actions is EPTL sec. 5-4.1 which provides that a wrongful death action may be brought by the personal representative...