Associated Mut. Ins. Co-op. v. 198, LLC

• Citation: 914 N.Y.S.2d 7,78 A.D.3d 597
• Parties: ASSOCIATED MUTUAL INSURANCE COOPERATIVE, etc., Plaintiff-Respondent, v. 198, LLC, Defendant-Appellant, Hughes Realty LLC, et al., Defendants.
• Decision Date: 30 November 2010
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 7
78 A.D.3d 597

ASSOCIATED MUTUAL INSURANCE COOPERATIVE, etc., Plaintiff-Respondent,
v.
198, LLC, Defendant-Appellant,
Hughes Realty LLC, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Nov. 30, 2010.

914 N.Y.S.2d 7

Scher & Scher, P.C., Great Neck (Robert A. Scher of counsel), for appellant.

Adam W. Scheinbach, Bronx, for respondent.

FRIEDMAN, J.P., McGUIRE, RENWICK, RICHTER, MANZANET-DANIELS, JJ.

78 A.D.3d 597

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about June 5, 2009, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint, affirmed, with costs.

As an adjacent land owner, defendant owed plaintiff's insured "a duty to exercise reasonable care in the maintenance of its property to prevent foreseeable injury that might occur on the adjoining property" ( Brown v. Long Is. R.R. Co., 32 A.D.3d 813, 821 N.Y.S.2d 133 [2006] ). In light of the long history of criminal activity on the premises and defendant's awareness of that activity, whether the

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damage that occurred to the insured's premises as a result of a fire was foreseeable, and whether the measures defendant took to secure its vacant building were reasonable either under Administrative Code of City of N.Y. former § 26-235 ¹ or the common law, are questions of fact warranting the denial of summary judgment.

We do not agree with the limitation on liability that the concurrence's reading of Section 26-235 of the Administrative Code would impose. The concurrence interprets this provision as requiring the issuance of an administrative order as a precondition to a finding of a statutory violation. However, the statute nowhere provides that the issuance of a sealing or other order is a prerequisite for liability to attach, or that in the absence of an order a landowner is excused from compliance with the statute. Rather, it simply states,

"A vacant building which is not continuously guarded shall have all openings sealed in a manner approved by the commissioner, and it shall be the duty of the owner thereof promptly to make any repairs that may be necessary for the purpose of keeping such building

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sealed. Any vacant building not continuously guarded or not sealed and kept secure against unauthorized entry as hereinbefore provided shall be deemed dangerous and unsafe as a fire hazard and dangerous and detrimental to human life, health and morals within the meaning of this article."

The concurrence relies not on the plain words of section 26-235, but rather, on a rule promulgated by the Department of Buildings, to argue that the agency intended a sealing order to be a precondition to liability. The rule, 1 RCNY 3-01, states that "[w]here buildings are vacant, unguarded, open to unauthorized entry and are required to be sealed pursuant to the provisions of an unsafe building order " (emphasis added), such buildings must be secured in the manner provided in the rule. The rule, by its clear terms, pertains only to those situations in which a sealing order has been issued, which is not the case here.

The concurrence argues that this rule reflects an agency policy that a sealing order is a prerequisite to liability. Since the rule is on its face inapplicable, it is unnecessary to address this argument. We simply note that the rule, like Section 26-235 itself, nowhere provides that a sealing order is a prerequisite to statutory liability. Assuming, arguendo, that this rule reflects an agency policy that a sealing order is necessary before statutory liability may be found, this Court, under settled law, would not be required to defer to agency policy concerning a statute the meaning of which is plain. "[W]here the question is one of pure statutory reading and analysis, ... there is little basis to rely on any special competence or expertise of the administrative agency," and "courts are free to ascertain the proper interpretation from the statutory language and legislative intent" ( see Matter of Smith v. Donovan, 61 A.D.3d 505, 508-09, 878 N.Y.S.2d 675 [2009] [internal quotation marks and citations omitted], lv. denied 13 N.Y.2d 712, 241 N.Y.S.2d 844, 191 N.E.2d 902 [2009]; see also Seittelman v. Sabol, 91 N.Y.2d 618, 625, 674 N.Y.S.2d 253, 697 N.E.2d 154 [1998] [holding state regulation, which limited Medicaid reimbursement for period preceding Medicaid application to only those services rendered by Medicaid-enrolled providers, unenforceable

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since it was unsupported by the language and the policy of the controlling federal statute it was intended to implement]; Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 426 N.Y.S.2d 454, 403 N.E.2d 159 [1980] [disregarding regulation of Superintendent of Insurance, limiting recovery for lost earnings to $800 per month, where it conflicted with clear wording of the relevant provisions of the Insurance Law] ).

The meaning of Section 26-235 of the Administrative Code is patent. The statute nowhere provides that a sealing order is a

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prerequisite to liability, and we reject any attempt to graft an addendum onto the statute, in violation of the plain meaning doctrine.

We decline to engage in the layers of speculative discourse the concurrence's position requires about hypothetical fact patterns that are not before us. Suffice to say we disagree, based on the words of Section 26-235 itself, and will not engage in further unnecessary rejoinder.

We have considered defendant's remaining arguments and find them unavailing.

All concur except FRIEDMAN, J.P. and McGUIRE,...