Preferred Mutual Insurance Company v. Chimney Sweep

• Decision Date: 26 December 2007
• Docket Number: 2006-09789.
• Citation: 46 A.D.3d 866,849 N.Y.S.2d 584,2007 NY Slip Op 10522
• Court: New York Supreme Court — Appellate Division
• Parties: PREFERRED MUTUAL INSURANCE COMPANY, as Subrogee of ROSE VOLASKI and Another, Appellant, v. C. RUMBALSKI CHIMNEY SWEEP, Respondent.

46 A.D.3d 866

849 N.Y.S.2d 584

2007 NY Slip Op 10522

PREFERRED MUTUAL INSURANCE COMPANY, as Subrogee of ROSE VOLASKI and Another, Appellant, v. C. RUMBALSKI CHIMNEY SWEEP, Respondent.

2006-09789.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 26, 2007.

In an action to recover damages for injury to property, the plaintiff appeals from a judgment of the Supreme Court, Orange County (McGuirk, J.), entered August 31, 2006, which, upon a jury verdict, and upon the denial of its separate motions pursuant to CPLR 4401 for judgment as a matter of law and pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence and for a new trial, is in favor of the defendant and against it, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

Rose Volaski and Elliot Volaski, subrogors of the plaintiff, purchased a woodburning stove fireplace insert from the defendant. The manufacturer's instructions for the fireplace insert provided that any combustible floor in front of the fireplace hearth must be protected with 16 inches of noncombustible floor protector. The defendant installed the fireplace insert as part of the purchase price. At the time, the floor protection was inadequate. Carl Rumbalski, who did the installation, testified that he orally warned the Volaskis that they needed to obtain more floor protection and gave them a copy of the manufacturer's instructions. However, they did not install additional floor protection. Four years later, there was a fire in the Volaskis' home that the plaintiff alleged was caused by an ember that escaped from the fireplace insert.

This case proceeded on "a breach of contract theory" under the principle that "[a] person charged with performing work under a contract must exercise reasonable skill and care when performing work, and negligent performance may give rise to actions for tort and for breach of contract" (International Fid. Ins. Co. v Gaco W., 229 AD2d 471, 474 [1996]). This case falls within the perplexing "borderland between tort and contract," a situation which "most often arise[s] where the parties' relationship initially is formed by contract, but there is a claim that the contract was performed negligently" (Sommer v Federal Signal Corp., 79 NY2d 540, 551-552 [1992]).

Contrary to the plaintiff's contention, the Supreme Court properly denied its motion pursuant to CPLR 4401 for judgment as a matter of law....