Charter Oak Fire Insurance Company v. Tri-County Fire & Safety Equipment Co.

• Decision Date: 27 April 2009
• Docket Number: Civil Action No. 06-2160 (DRH)(MLO).
• Parties: CHARTER OAK FIRE INSURANCE COMPANY a/s/o Sunway Associates, and Liberty Mutual Fire Insurance Company a/s/o Carpet Emporium, Plaintiffs, v. TRI-COUNTY FIRE & SAFETY EQUIPMENT CO., and Bread & Butter, LLC, Defendants. Bread & Butter LLC., d/b/a Sweeney's American Grill, Third-Party Plaintiff, v. L.B. Kitchen Equipment Company and American Hood & Exhaust, Inc., Third-Party Defendants.
• Court: U.S. District Court — Eastern District of New York

636 F.Supp.2d 193

CHARTER OAK FIRE INSURANCE COMPANY a/s/o Sunway Associates, and Liberty Mutual Fire Insurance Company a/s/o Carpet Emporium, Plaintiffs, v. TRI-COUNTY FIRE & SAFETY EQUIPMENT CO., and Bread & Butter, LLC, Defendants.

Bread & Butter LLC., d/b/a Sweeney's American Grill, Third-Party Plaintiff, v. L.B. Kitchen Equipment Company and American Hood & Exhaust, Inc., Third-Party Defendants.

Civil Action No. 06-2160 (DRH)(MLO).

United States District Court, E.D. New York.

April 27, 2009.

Sheps Law Group, by Robert C. Sheps, Esq., Melville, NY, for Plaintiff Charter Oak Fire Insurance Company.

Cozen & O'Connor, by Mark E. Utke, Esq., Philadelphia, PA, for Plaintiff Liberty Mutual Fire Insurance Company.

Rubin, Fiorella & Friedman LLP, by Paul Frederic Kovner, Esq., New York, NY, for Defendant/Third Party Plaintiff Tri-County Fire & Safety Equip. Co.

Nelson Levine deLuca & Horst, by Konstantinos Katsaros, Esq., New York, NY, for Defendant Bread & Butter LLC.

Law Offices of Craig P. Curcio, by Timothy P. Blum, Esq., Middletown, NY, for Third Party Defendant American Hood & Exhaust, Inc.

HURLEY, Senior District Judge:

Presently before the Court are two motions for summary judgment. The first motion is by Defendant/Third-Party Plaintiff Bread & Butter, LLC d/b/a/ B.K. Sweeney's American Grill ("Sweeneys") and seeks summary judgment on Plaintiffs' claims against it, as well as all crossclaims and counterclaims. The second motion is by Third Party Defendant American Hood and Exhaust, Inc. ("American Hood") and seeks summary judgment on the third party claims asserted against it by Sweeneys, as well as all crossclaims.¹ For the reasons set forth below, both motions are denied.

I. Background

This subrogation litigation arises out of a fire which originated in a restaurant owned by Sweeneys on December 21, 2005 at approximately 4:00 a.m. Sweeneys leased the restaurant premises which was located at 475 Sunrise Highway, Lynbrook, New York. Plaintiffs, the insurers for the owner of the building where the restaurant was located and the adjacent tenant, commenced this action against Sweeneys and Tri-County Fire & Safety Equipment Co. ("TriCounty"), installer of a protective hood above the cookline in the restaurant's kitchen, seeking damages as result of the fire. As against Tri-County, the complaint alleges that it improperly installed a protective hood above the cookline in the restaurant's kitchen that was not code compliant and ultimately failed to suppress a fire, resulting in property damage. As against Sweeneys, Plaintiffs allege that it failed to properly install, inspect and maintain the kitchen ventilation and exhaust ductwork, including improperly utilizing combustible wood strips to hang the ventilation system and failing to keep the kitchen free of grease build-up. A breach of contract claim is also alleged.

Sweeneys thereafter commenced a third party action against American Hood alleging that it failed to properly perform cleaning services on the hood system.²

II. The Parties' Contentions

A. Sweeneys' Motion

In support of its motion, Sweeneys maintain that there is no evidence that it did anything to cause the fire, i.e. that poor maintenance by Sweeneys was the cause of the fire. Sweeneys points to Plaintiffs' expert report which concludes that (1) the initial development of the fire was the ignition of wood studs located along the west wall behind the ventilation hood; (2) the incipient fire and spread of the fire involved the burning of cooking grease, grease laden vapors and class A combustible materials; and (3) the ventilation hood was installed by Tri-County directly onto 2x4 wood studs in direct violation of the required code and standard installation requirements and had it been installed as required by code, no ignition of combustible material would have occurred.

In response, Plaintiffs and Tri-County point to several pieces of evidence as sufficient to create an issue of fact as to Sweeneys' liability. First, the Nassau County Fire Marshall has attributed the fire's spread to a buildup of grease near the area of origin and indicated in its official report that the relevant grease collection pans in the kitchen did not appear to be emptied on a regular basis. Second, Neil Metz, the principal of Tri-County, testified at his deposition that his company did not install the improper combustible piece of wood located on the rear of the protective hood. Third, Sweeneys' management had no maintenance check list and did not supervise employees to ensure that they cleaned the grease collection pans directly behind the broiler on a regular basis. Plaintiffs and Tri-County maintain that a jury could determine that Sweeneys was negligent in maintain the property or in installing the wood behind the hood.

B. American Hood's Motion

American Hood also maintains that the record is bereft of any evidence that it was negligent or that any negligence on its part caused the fire. First, it claims there is no evidence that it negligently cleaned the hood. Second, it points to two experts reports, both of which conclude that the fire was the result of improper design, manufacture, and installation of the exhaust system.

In opposition, Sweeneys argues that if Plaintiffs' claims against it survive then it would be premature to dismiss its contribution and indemnification claims against American Hood. Further it argues that it hired American Hood to perform cleaning services on the hood system and American Hood offers only its own self-serving testimony to support that it properly cleaned the hood. The only evidentiary material submitted by Sweeneys is the deposition testimony of American Hood.

III. Summary Judgment Standard

A. Rule 56 of the Federal Rules of Civil Procedure

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed. R.Civ.P. 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir.2004) (citing Fed.R.Civ.P. 56(e)). "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999)).

When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505. A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir.1997) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir.1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not `implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). While a court must resolve...