Lloyds London v. Evanston, Index No. 151786/2012

• Court: United States State Supreme Court (New York)
• Writing for the Court: LUCY BILLINGS
• Citation: 2014 NY Slip Op 31544 (U)
• Parties: LLOYDS OF LONDON a/s/o MIKE RUTHERFORD, Plaintiff v. JAMES W. EVANSTON, Defendant
• Docket Number: Index No. 151786/2012
• Decision Date: 05 June 2014

2014 NY Slip Op 31544(U)

LLOYDS OF LONDON a/s/o MIKE RUTHERFORD, Plaintiff
v.
JAMES W. EVANSTON, Defendant

Index No. 151786/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46

DATED: June 5, 2014

DECISION AND ORDER

LUCY BILLINGS, J.:

Plaintiff sues to recover for property damage caused by-water that leaked from defendant's apartment to the apartment below owned by plaintiff's subrogor. Plaintiff moves for summary judgment on liability, C.P.L.R. § 3212(b) and (e), or to dismiss defendant's affirmative defenses. C.P.L.R. § 3211(b). Defendant cross-moves for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). Although defendant denies his liability, he stipulated to discontinue his affirmative defenses to his liability, rendering moot the alternative relief sought by plaintiff.

I. UNDISPUTED BACKGROUND FACTS

The parties do not dispute that defendant, as the owner of his apartment in the condominium building housing his apartment and the apartment owned by plaintiff's subrogor, individually owned and controlled the heating, ventilation, and air conditioning (HVAC) units in his apartment. Consequently, on December 16, 2010, defendant arranged for a service technician to

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inspect an inoperative HVAC unit in defendant's apartment. The technician advised defendant that the unit needed replacement.

Two days after the technician's service, defendant turned the HVAC unit on for a short period and then turned it off, as it was blowing cool instead of warm air. On December 30, 2010, 14 days after the unit was inspected and while defendant and his wife were away from their apartment on vacation, water emanating from defendant's apartment leaked down, into the apartment of plaintiff's subrogor below defendant's apartment, causing damage in that apartment below.

II. PLAINTIFF'S ENTITLEMENT TO SUMMARY JUDGMENT

Plaintiff claims the water that caused damage in the apartment of plaintiff's subrogor leaked from defendant's HVAC unit.

A. Direct Evidence of Defendant's Liability

Premises owners owe a duty to maintain their premises in a condition that will not foreseeably cause injury to persons or other property. 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 290 (2001); 905 5th Assoc., Inc. v. Weintraub, 85. A.D.3d 667 (1st Dep't 2011). See Bucholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8 (2005); Kalish v. HEI Hospitality, LLC, 114 A.D.3d 444, 445 (1st Dep't 2014); Hasley v. Abels, 84 A.D.3d 480, 482 (1st Dep't 2011); Alexander v. New York City Tr., 34 A.D.3d 312, 313 (1st Dep't 2006). To hold defendant liable for a condition on his premise's due to his negligence, plaintiff must demonstrate that he created the condition or

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received actual or constructive notice of the condition in time to remedy the condition before it caused the injury claimed. Kalish v. HEI Hospitality, LLC, 114 A.D.3d at 445; Hasley v. Abels, 84 A.D.3d at 482; Alexander v. New York City Tr., 34 A.D.3d at 313; Mandel v. 370 Lexington Ave., LLC, 32 A.D.3d 302, 303 (1st Dep't 2006). Thus defendant, as the owner of the apartment above the apartment of plaintiff's subrogor, would be liable for damage caused by defendant negligently allowing water to infiltrate the apartment below. Liberman v. Cayre Synergy 73rd LLC, 108 A.D.3d 426, 427 (1st Dep't 2013).

Plaintiff claims that defendant, as the owner of his apartment who has exclusive control over the HVAC unit that caused the water leak, not only failed to follow the technician's advice to replace the HVAC unit, but turned it on, causing the unit to leak water. Plaintiff presents no evidence, however, showing defendant's actual or constructive notice of a foreseeable leak. In fact, defendant's deposition testimony that plaintiff presents demonstrates defendant was unaware, of any prior water leaks from any of his HVAC units, Aff. of Marc B. Schuley Ex. D, at 53, and received no warning of this danger from the technician who inspected the inoperative unit. Id. at 42. Nor does any evidence in the record, whether deposition testimony or an affidavit, from either an expert or a lay witness, establish that, by not replacing the HVAC unit and turning it on for 10 minutes, id. at. 89-90, defendant caused it to leak water 12 days later.

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B. Res Ipsa Loquitur

Plaintiff nonetheless insists that this water leak was a condition that does not occur absent negligence, entitling plaintiff to an inference of negligence and, in the absence of admissible evidence rebutting this inference, summary judgment in plaintiff's favor. Res ipsa loquitur, a doctrine based on circumstantial evidence of defendant's unspecified negligence, entitles plaintiff to summary judgment only where plaintiff's circumstantial evidence is so convincing and defendant's opposition so weak as to render an inference of defendant's negligence inescapable. Moreion v. Rais Constr. Co., 7 N.Y.3d 203, 209 (2006); Stubbs v. 350 East Fordham Road, LLC, ___ A.D.3d ___, 2014 WL 2209142, at *1 (1st Dep't May 29, 2014).

For res ipsa loquitur to apply, plaintiff must establish that the leak (1) was not caused by plaintiff's contributory action, (2) was caused by an instrumentality in defendant's exclusive control, and (3) was a condition that ordinarily does not occur absent negligence. Moreion v. Rais Constr. Co., 7 N.Y.3d at 209; Smith v. Consolidated Edison Co. of N. Y., Inc., 104 A.D.3d 428, 429 (1st Dep't 2013). Even if plaintiff is entitled to an inference of negligence under res ipsa loquitur, the doctrine does not relieve plaintiff of its burden to establish the absence of any factual issue whether defendant's negligence caused the damage claimed. James v. Wormuth, 21 N.Y.3d 540, 548 (2007); Moreion v. Rais Constr. Co., 7 N.Y.3d at 212. See Smith v. Consolidated Edison Co. of N. Y., Inc., 104

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A.D.3d at 430.

The record of evidence before the court nowhere suggests that plaintiff's subrogor contributed to the water leak. To establish defendant's exclusive control of the...