Dowell v. EST Trish, LLC

• Citation: 2019 NY Slip Op 34277 (U)
• Decision Date: 27 August 2019
• Docket Number: Index 2014EF5170
• Parties: JOSEPH A. DOWELL and LINDA DOWELL, Plaintiffs, v. EST TRISH, LLC d/b/a STANLEY STEEMER OF SYRACUSE, MEDICAL CENTER REALTY, LLC, 4000 MEDICAL CENTER DRIVE, LLC, ST. JOSEPH'S MEDICAL, P.C., ST. JOSEPH'S HOSPITAL HEALTH CENTER, ST. JOSEPH'S PHYSICIAN HEALTH, P.C., ST. JOSEPH'S PHYSICIANS, NORTHEAST MEDICAL PROPERTIES, LLC, NORTHEAST FAMILY PHYSICIANS, NORTHEAST MEDICAL CENTER, NORTH MEDICAL, P.C., DICKINSON ENVIRONMENTAL CONSULTING, LLC; AEROBIOLOGY LABORATORY ASSOCIATES, INC., ST. JOSEPH'S HEALTH CENTER PROPERTIES, INC., SUMMIT REALTY MANAGEMENT, INC., A.J.M. MANAGEMENT SERVICES, INC., STANLEY STEEMER INTERNATIONAL, INC. and JOHN DOE, the name being fictitious and unknown to the plaintiffs, the person or party intended being the franchisor, if any, of EST TRISH, LLC d/b/a STANLEY STEEMER OF SYRACUSE, JOHN DOE #1, JOHN DOES #2-10, JOHN DOES #11-20, JOHN DOES #21-30, JOHN DOES #31-40, Defendants. RJI No. 33-15-1008
• Court: United States State Supreme Court (New York)

2019 NY Slip Op 34277(U)

JOSEPH A. DOWELL and LINDA DOWELL, Plaintiffs,
v.
EST TRISH, LLC d/b/a STANLEY STEEMER OF SYRACUSE, MEDICAL CENTER REALTY, LLC, 4000 MEDICAL CENTER DRIVE, LLC, ST. JOSEPH'S MEDICAL, P.C., ST. JOSEPH'S HOSPITAL HEALTH CENTER, ST. JOSEPH'S PHYSICIAN HEALTH, P.C., ST. JOSEPH'S PHYSICIANS, NORTHEAST MEDICAL PROPERTIES, LLC, NORTHEAST FAMILY PHYSICIANS, NORTHEAST MEDICAL CENTER, NORTH MEDICAL, P.C., DICKINSON ENVIRONMENTAL CONSULTING, LLC; AEROBIOLOGY LABORATORY ASSOCIATES, INC., ST. JOSEPH'S HEALTH CENTER PROPERTIES, INC., SUMMIT REALTY MANAGEMENT, INC., A.J.M. MANAGEMENT SERVICES, INC., STANLEY STEEMER INTERNATIONAL, INC. and JOHN DOE, the name being fictitious and unknown to the plaintiffs, the person or party intended being the franchisor, if any, of EST TRISH, LLC d/b/a STANLEY STEEMER OF SYRACUSE, JOHN DOE #1, JOHN DOES #2-10, JOHN DOES #11-20, JOHN DOES #21-30, JOHN DOES #31-40, Defendants.

RJI No. 33-15-1008

Index No. 2014EF5170

Supreme Court, Onondaga County

August 27, 2019

Unpublished Opinion

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APPEARANCES:

JAN S. KUBLTCK, ESQ., OF McMAHON, KUBLICK & SMITH, P.C. For Plaintiff

JULIE M. CAHILL, ESQ. and MATTHEW J. LARKIN, ESQ., OF BARCLAY DAMON, LLP For Defendants Medical Center Realty, LLC, 4000 Medical Center Drive, LLC, Northeast Medical Properties, LLC; North Medical Center, P.C. d/b/a Northeast Family Physicians i/s/h/a Northeast Family Physicians, East Medical Center, L.P. d/b/a Northeast Medical Center i/s/h/a Northeast Medical Center, North Medical, P.C, Summit Realty Management, Inc. and A.J.M. Management Services, Inc.

CATHERINE A. GALE, ESQ, OF GALE, GALE & HUNT, LLC For Defendants St. Joseph's Medical, P.C, St. Joseph's Hospital Health Center, St. Joseph's Physician Health, P.C, St. Joseph's Physicians, St. Joseph's Health Center Properties, Inc.

JEFFREY D. SCHULMAN, ESQ., OF PILLINGER, MILLER, TARALLO, LLP For Defendant Dickinson Environmental Consulting, LLC

KRISTEN M. BENSON, ESQ., OF SMITH, SOVIK, KENDRICK & SUGNET, P.C For Defendants Est Trish, LLC d/b/a Stanley Steemer of Syracuse and Stanley Steemer International, Inc.

DECISION AND ORDER ON MOTION

DONALD A. GREENWOOD, Supreme Court Justice

This case arises out of alleged mold exposure suffered by the plaintiff while employed as a nurse by defendant St. Joseph's Medical, P.C. Plaintiff claims that the exposure resulted from a flooding incident which occurred between August 3, 2013 and August 5, 2013 in Suite 101, of the Northeast Medical Center in Fayetteville, New York. The flood occurred in bathroom 1-17 of Suite 101A and permeated into Suite 101B. Plaintiff worked in Suite 101C and never entered either of the other two suites. The suites were owned by Medical Center Realty, LLC and leased by St. Joseph's Health Center Properties, Inc. (SJHCP) pursuant to a lease agreement dated January 1, 2011. On the same day, SJHCP executed an assignment, assigning its right, title and interest in the lease to St. Joseph's Medical, P.C. Plaintiff claims that the exposure resulted in several respiratory illnesses and the need for a lung transplant. The complaint asserts causes of

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action for negligence and also contained a loss of consortium claim that was subsequently withdrawn. All of the defendants have moved for summary judgment dismissal of the complaint. Due to the voluminous nature of the record here, all of the parties have stipulated to a list of global exhibits.

I. SUMMARY JUDGMENT MOTION OF DEFENDANTS EST TRISH, LLC d/b/a STANLEY STEEMER OF SYRACUSE AND STANLEY STEEMER, INTERNATIONAL, INC. (hereinafter collectively referred to as Stanley Steemer)

Stanley Steemer is a water restoration company which was retained by St. Joseph's Medical, P.C. to perform the water extrication and applied structural drying phase of the remediation project following the flood that is the subject of this litigation. Defendant Dickinson Environmental Consulting, LLC (Dickinson) was likewise retained by St. Joseph's Medical, P.C. to perform air monitoring on the premises through the remediation project following the flood. Stanley Steemer operates pursuant to a Franchise Agreement with Stanley Steemer, International, Inc., an Ohio Corporation. The local entity is owned by Jeffrey Trisciani, and Kevin Dausman serves as the as the Restoration Manager. Defendant Stanley Steemer International, Inc. as franchisor of Stanley Steemer of Syracuse has established that it is entitled to summary judgment as it did not exercise sufficient control to impute vicarious liability. A franchisor is not vicariously liable for the acts of a franchisee unless the franchisor exerts control over day to day operations of its franchisee. See, Niagara Foods, Inc. v. Ferguson, 111 A.D.3d 1374 (4^th Dept. 2003). Plaintiff has failed to raise an issue of fact in this regard and as such the motion for summary judgment dismissal of Stanley Steemer International, Inc. is granted.

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The remaining Stanley Steemer defendants predicate the motion for summary judgment on a number of grounds, including, inter alia, that Stanley Steemer owed plaintiff no duty, even if it owed plaintiff a duty that it was not negligent inasmuch as the restoration work fell within the standard of care. As the proponent of the motion for summary judgment dismissal, it is required to establish its entitlement to dismissal as a matter of law through the submission of admissible, non-speculative evidence. See, Hunt v. Kostarellis, 27 A.D.3d 1178 (4^th Dept. 2006). Stanley Steemer has done so here.

The voluminous submissions from Stanley Steemer demonstrate the following facts. Stanley Steemer was retained to perform water restoration and drying work in the affected area. Dausman reported to the site with Lyle Dodge, who are both certified pursuant to standards promulgated by the Institute for Inspection, Cleaning and Restoration Certification (IICRC) in the areas of water restoration training and applied structural drying. These are industry wide standards which were developed to provide the highest quality, concepts, terminology and procedures recognized in the cleaning and restoration industry. Those guidelines are set forth in a manual entitled "SSU: Water Restoration Technician and Applied Structural Drying." Upon arrival at the medical center, they surveyed the affected area to ascertain its boundaries and began extricating water from the affected carpeting and other wet floor surface areas with truck mounted units. The units sucked the water from the building and discharged it into a dump tank in the truck. They also removed the baseboards from the affected walls and drilled holes in the affected wall cavities to begin the drying process. They remained onsite for five days. According to Dausman, the initial survey yielded no evidence of mold and none was found on the premises for the duration of the work. They deployed air blowing devices, air scrubbers and

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dehumidifiers to dry the premises. These are commonly used in the field of water restoration and structural drying. In addition, plastic containment had been deployed throughout the affected area for purposes of preventing air from moving into unaffected areas. HEPA filter air scrubbers were also positioned both inside and outside the containment. When the work was concluded on August 9, 2013, Stanley Steemer assessed the moisture levels on the premises as sufficient in light of the remainder of the remediation project, which entailed removal and demolition work to be performed by other entities, according to Dausman. This defendant was not asked to perform demolition or removal work as part of the remediation project and it did not enter a contract with anyone to perform this work. Instead, S.J. Thomas, another contractor and non-party, was retained to complete the tear down and demolition work. Dickinson investigated air quality and provided mold assessment services throughout the remediation project and completed a five hour walk through of the affected area on August 7, 2013 and did not observe any mold growth. Owner Richard Dickinson returned to the site periodically to monitor air quality. He created two reports in 2013; the first one dated August 9, 2013 and the second on September 5, 2013, when the project was complete. He did not discover any mold on the premises until August 14, 2013 when it was visible behind the walls that had been torn down in the bathroom 1-17 of Suite 101A by S.J. Thomas. This was reflected in the addendum to the initial report of that date. According to Dickinson e-mails, when S.J. Thomas tore down the walls in that bathroom on August 14, 2013 containment was already in place and thus there was no mold released in the premises when mold spores were uncovered. Dickinson testified that the drying measures implemented by Stanley Steemer at the start of the project were proper because there was no initial discovery of mold and containment was not necessary as a result. He testified that the purpose of the August

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14, 2013 addendum was to report on the reclassification of the flood from a Category 1 to a Category 2 to 3 after he was told by St. Joseph's Medical P.C. employees that the flood water came from the toilet bowl rather than the tank. He explained the new category required the removal and tear down of all wet materials on the premises, including both sides of the common walls and the affected area. He further testified that S.J. Thomas' tear down of the walls of the bathroom revealed mold in the wall cavities and the mold was not capable of being observed until the wall was cut. In addition, he stated that when the walls were being cut containment had already been implemented in the affected area. Dickinson did not find any evidence of mold or other contaminants outside the containment zone during the project and the conclusion was further informed by bio aerosol testing conducted both inside and outside the containment area in the...