Industrial Risk Insurers v. Ernst

• Decision Date: 05 February 1996
• Citation: 224 A.D.2d 389,638 N.Y.S.2d 109
• Parties: INDUSTRIAL RISK INSURERS, etc., Plaintiff-Respondent, v. John L. ERNST, et al., Appellants, Sol Niego Associates, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 109

638 N.Y.S.2d 109

224 A.D.2d 389

INDUSTRIAL RISK INSURERS, etc., Plaintiff-Respondent, v. John L. ERNST, et al., Appellants Sol Niego Associates, et al., Defendants-Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 5, 1996.

Standard Weisberg, P.C., New York City (Marco L. Spadacenta, of counsel), for appellants.

Gennet, Kallmann, Antin & Robinson, Parsippany, N.J. (Michael Margello, of counsel), for plaintiff-respondent.

Before BALLETTA, J.P., and RITTER, ALTMAN and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for property damage, the defendants John L. Ernst and Cedarhurst Joint Venture appeal from an order of the Supreme Court, Nassau County (Becker, J.) dated October 19, 1994, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, the motion of the defendants John L. Ernst and Cedarhurst Joint Venture for summary judgment is granted, the complaint and all cross claims are dismissed insofar as asserted against them, and the action against the remaining defendants is severed.

The plaintiff's subrogor, Pergament Distributors, Inc. (hereinafter Pergament), leased a store in a shopping center owned by the defendants John L. Ernst and Cedarhurst Joint Venture (hereinafter the appellants). In 1983, Pergament and the appellants entered into a new lease for additional space. Several months after Pergament had constructed and occupied an extension to its existing store, a water main located beneath the extension ruptured, flooding the store. The plaintiff, as subrogee of Pergament, commenced the instant action for damages alleging, in essence, that the appellants had failed to disclose the existence of the water main to Pergament.

In order to hold the appellants liable, the plaintiff must first establish that they breached a duty toward Pergament. "Whether a duty exists presents a question of law to be determined by the court based upon the facts and circumstances of each case" (Hooper v. Anderson, 157 A.D.2d 939, 940, 550 N.Y.S.2d 196). We agree with the appellants that they breached no duty. Here, the parties dealt at arm's length, no confidential or fiduciary relationship existed, there was no active concealment of the facts by the appellants and the existence of the water company's easement could have easily been ascertained at all times by Pergament, its...