Raylite Elec. Corp. v. City of New York

• Decision Date: 30 April 1968
• Citation: 30 A.D.2d 38,289 N.Y.S.2d 673
• Parties: RAYLITE ELECTRIC CORP., Plaintiff-Appellant, v. The CITY OF NEW YORK and the New York City Housing Authority, Defendants-Respondents. The NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. ROCKAWAY BLVD. WRECKING & LUMBER CO., Inc., and The William J. BurnsInternational Detective Agency, Inc., Third-Party Defendants-Respondents. ROCKAWAY BLVD. WRECKING & LUMBER CO., Inc., Plaintiff, v. RAYLITE ELECTRIC CORP., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 673

289 N.Y.S.2d 673

30 A.D.2d 38

RAYLITE ELECTRIC CORP., Plaintiff-Appellant, v. The CITY OF NEW YORK and the New York City Housing

Authority, Defendants-Respondents.

The NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Respondent, v. ROCKAWAY BLVD. WRECKING & LUMBER CO., Inc., and The William

J. BurnsInternational Detective Agency, Inc.,

Third-Party Defendants-Respondents.

ROCKAWAY BLVD. WRECKING & LUMBER CO., Inc., Plaintiff, v. RAYLITE ELECTRIC CORP., Defendant.

Supreme Court, Appellate Division, First Department.

April 30, 1968.

Frederick H. Block, New York City, of counsel (Heffner & Block, New York City), for plaintiff-appellant.

Alfred Weinstein, New York City, of counsel (Stanley Buchsbaum, New York City, with him on the brief, J. Lee Rankin, Corp. Counsel), for respondent, The City of New York.

Walter Feller, New York City, of counsel (E. Edan Spencer, New York City), for respondent, The New York City Housing Authority.

Harris Birnbaum, New York City, for respondent, Rockaway Blvd. Wrecking & Lumber Co. Inc.

Before BOTEIN, P.J., and STEVENS, EAGER, McGIVERN and RABIN, JJ.

McGIVERN, Justice.

This is an appeal from a dismissal at the end of the plaintiff's case.

After a two week trial and a record of 1780 pages, wherein the Trial Judge extended to the plaintiff the extremest latitude, the following facts emerge: The plaintiff Raylite is a company engaged in the manufacture and sale of Christmas ornaments. It occupied a six story building and warehouse known as 285 East 137 St., Bronx County, and owned by the defendant Housing Authority. Next door to it was a smaller two story building, 291 East 137 St., also owned by the Housing Authority, abandoned for many months, and scheduled for demolition by the City in order to make way for a housing project.

On July 18, 1962, a five-alarm fire of unascertained origin erupted at both or either of the buildings, and the building occupied by the plaintiff was completely gutted and destroyed; so also were the contents, largely made up of readily combustible Christmas items. For this loss the plaintiff sued, theorizing that the defendants were delinquent in their care and maintenance of the 291 building, the smaller of the two, permitting it to become dilapidated and debris-laden, that street urchins had easy access to it and that its general condition was tantamount to a violation of the Administrative Code, C26--193.0. Further, the plaintiff maintained, that children, on the day of the fire, ignited debris, thus causing the conflagration that spread to and enveloped the plaintiff's building.

We agree with the dismissal of the complaint by the Trial Judge. Although there was some backing and filling by the witnesses, the ultimate residue of their testimony is that no one saw children actually start a fire and run away. And the Fire Marshal, called by the plaintiff as an expert, had no opinion as to where the fire started. A police officer, on the scene after the fire started, in response to a question by the Court, similarly said he did not know when, why or how the fire started. The other witnesses were equally unhelpful.

Nor was there a showing of a violation of the Administrative Code. The Trial Judge characterized the proof on this phase as 'vague and inconclusive.' We do not disagree. On the record before us we cannot say the City or the Housing Authority was lax in not having recognized the 291 building as a nuisance, a fire hazard or a danger. The building itself was small, immured by two party walls, a wire mesh fence in front, and iron bars and a steel door in the rear. It was under the surveillance of the Burns Detective Agency, hired by the Housing Authority. The duty of these representatives was to report anything amiss or in need of repair. The Superintendent of Maintenance said the building was 'well secured.' All in all, its condition was well within the standards set forth in Beauchamp v. New York City Housing Authority, 12 N.Y.2d 400, 407, 240 N.Y.S.2d 15, 22, 190 N.E.2d 412, 417, 99 A.L.R.2d 454 per Scileppi, J., wherein it is stated that the duty to secure premises of this character is not absolute. "In the striving after safety, (an) owner * * * is not required to go beyond the bounds of what is practicable and reasonable'. (Caspersen v. La Sala Bros., 253 N.Y. 491, 495, 171 N.E. 754, 755; see, also Timlin v. Standard Oil Co., 126 N.Y. 514, 523--524, 27 N.E. 786, 788; Odell v. Solomon, 99 N.Y. 635, 1 N.E. 408). Thus, in this case, the duty to provide adequate safeguards to avoid injuring others would have been fulfilled if the doors and windows had been adequately secured to prevent access, together with reasonable inspections to insure the maintenance of said security.'

Further, if we could perceive a violation, which we do not, Beauchamp (supra) tells us a violation would not create a liability Per se. And herein, there is still no proof a violation was the proximate cause of the fire, or that the fire was the direct and immediate consequence of such violation. There has simply been no demonstration of a causal connection between any alleged failure on the part of the defendants and the damages to the plaintiff. And as the court below noted: 'certainly there has been no proof that there was any accumulation of highly combustible or volatile material in the premises, such as gasoline, oil, creosote, gun powder, natural gas, or items along this type, which would constitute an unusual fire hazard.'

If any potential fire hazard existed, it was the plaintiff's building. Six stories in height, the skeletal structure was of wood. There were no steel girders. Only the walls were brick. Although filled with plastic materials and cardboard boxes, it was without a sprinkler system, fire hoses or watchman services. Although every floor extended 3500 sq. feet, on every floor there was but a manual fire extinguisher, one pail of water and a lone bucket of sand. No smoking was permitted because of the recognized danger. Containing inflammable articles commonly known in the Christmas trade,...