Palanker v. Edwards Properties, Inc.
| Decision Date | 21 November 1961 |
| Citation | 32 Misc.2d 772,222 N.Y.S.2d 266 |
| Parties | Joseph PALANKER, d/b/a Joseph Palanker & Sons, Plaintiff, v. EDWARDS PROPERTIES, INC., Coons, Koch & Downey, Inc., A. Fleischauer, Inc., Defendants. |
| Court | New York Supreme Court |
Rivo & Loonsk, Buffalo (James J. Hagerty, Buffalo, of counsel), for plaintiff.
Eugene M. Downey, Buffalo (James N. Hite, Buffalo, of counsel), for defendant Coons, Koch & Downey.
Weaver, Maghran & McCarthy, Buffalo (W. Donn McCarthy, Buffalo, of counsel), for defendant A. Fleischauer, Inc.
Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, (Grover R. James, Jr., Buffalo, of counsel), for defendant Edwards Properties, Inc.
Ernest E. Cavagnaro, Buffalo, for defendant W. Allan Smeader.
This action is brought by plaintiff-furrier against his landlord, cotenant and two plumbing concerns for damages sustained when water flooded his basement fur-vault in June, 1955. By lease dated May 29th, 1953, Joseph Palanker & Sons rented from Edwards Properties, Inc. space on the second floor of the Lockwood Building in Buffalo, New York, together with a fur vault approximately 2,200 square feet, located in the basement of the premises. The lease extended six (6) years from September, 1953. Plaintiff took possession of premises and conducted a retail and wholesale fur business therein. It used the fur vault in the basement to store both manufactured coats and coats owned by customers. This vault was rectangular in shape and its walls went up to within several feet of the basement ceiling.
Sometime in February, 1955, water leaked down from premises rented by Coons, Koch & Downey, Inc. and used by them for the operation of maintenance man inspected the area above the vault and below the first floor (a space of approximately two feet in height) but found only a light leakage of water coming down around pipes extending from the basement to the premises of the Colonial Restaurant. He calked the floor boards and thereafter made periodic inspections of the area. Palanker resumed use of the vault.
On June 13, 1955, a heavy flooding of the fur vault was discovered, and on inspection it was found to have been caused by a pipe which had been crimped together and soldered at the end, contrary to accepted plumbing practice. The crimped pipe was located over the fur vault a few feet from the point where the leakage had occurred five months earlier. The water which flooded the vault in June soaked 82 coats and caused the damage for which plaintiff seeks to recover for the alleged negligence of the various defendants.
The claim against defendant W. Allan Smeader is based on the allegation that Smeader, a plumber, was employed by Coons, Koch & Downey, Inc. to remove an old dishwasher from its restaurant and negligently performed plumbing services in January, 1954 which caused the flooding in June, 1955. Defendants cross-claim and defendants Edwards Properties sue A. Fleischauer for negligence as a third party defendant, and defendant Coons, Koch and Downey, Inc. sue W. Allan Smeader for negligence as a third party defendant.
Plaintiff's Claim v. Edwards Properties, Inc.
The lease between plaintiff and Edwards provides that the tenant shall be solely responsible for the maintenance and repair of the fur storage vault leased and the landlord assumes no responsibility and has 'no obligation to the vault or its contents'. Further, the lease provides that the landlord shall not be liable for any loss of property or for any damage to property caused by water. However, these provisions must be read in conjunction with Section 234 of the Real Property Law which makes void any lease provision that attempts to relieve a landlord or its agents from negligence. Put more directly, Edwards remains liable to plaintiff if it were negligent in carrying out its legal duty to plaintiff. In meeting this duty, no distinction is made between active and passive negligence. (International Underwear Corp. v. Brooklyn Trust Co., 287 N.Y. 589, 38 N.E.2d 386).
We find as a fact that the area above the fur vault and below the first floor of the premises was at all times under the exclusive and complete control and supervision of the defendant Edwards. This area embraced the site of the crimped pipe which was visible to inspection. Further, the landlord had notice of flooding in January, 1955, less than 6 months prior to the serious water damage. Although the source of the first leakage was not the same as the second, it was but a few feet away from it and we believe that a reasonably competent inspection would have discovered the crimped pipe which caused the flooding in June. In failing adequately to inspect, discover and repair this defective pipe, the defendant Edwards was negligent as a matter of law. It had a legal obligation to its tenant to keep its premises in a reasonably safe condition. (Dollard v. Roberts, 130 N.Y. 269, 29 N.E. 104, 14 L.R.A . 238). This it failed to do. The very installation of a partial tin covering over the roof of the vault assumed future leakage, an assumption proved accurate five months later. (Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397; Hirsch v. Radt, 228 N.Y. 100, 126 N.E....
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