Sidik v. Royal Sovereign Int'l Inc., 2:17-cv-07020 (ADS)(ARL)

• Decision Date: 21 December 2018
• Docket Number: 2:17-cv-07020 (ADS)(ARL)
• Citation: 348 F.Supp.3d 206
• Parties: Thomas SIDIK, as Administrator of the Estate of Kristen A. Sidik, Deceased, Thomas Sidik as Parent and Natural Guardian of K.S., an Infant, and C.S., an Infant and Thomas Sidik, Individually, Plaintiff, v. ROYAL SOVEREIGN INTERNATIONAL INC., Royal Centurian Inc., RS Ningbo, Inc., Royal Sovereign Qingdao a/k/a RS Qingdao, BJ's Wholesale, Inc., ADT LLC and Defenders, Inc. d/b/a Protect Your Home, Defendants.
• Court: U.S. District Court — Eastern District of New York

348 F.Supp.3d 206

Thomas SIDIK, as Administrator of the Estate of Kristen A. Sidik, Deceased, Thomas Sidik as Parent and Natural Guardian of K.S., an Infant, and C.S., an Infant and Thomas Sidik, Individually, Plaintiff,

v.ROYAL SOVEREIGN INTERNATIONAL INC., Royal Centurian Inc., RS Ningbo, Inc., Royal Sovereign Qingdao a/k/a RS Qingdao, BJ's Wholesale, Inc., ADT LLC and Defenders, Inc. d/b/a Protect Your Home, Defendants.

2:17-cv-07020 (ADS)(ARL)

United States District Court, E.D. New York.

Signed December 21, 2018

Wisell & McGee LLP, Counsel for the Plaintiff, 80-02 Kew Gardens Road, Suite 307, Kew Gardens, NY 11415, By: Nancy McGee, Esq., Of Counsel

Kaufman Borgeest & Ryan LLP, Counsel for Royal Sovereign International, Inc. and Royal Centurion Inc., Co-Counsel for BJ's Wholesale Club, 200 Summit Lake Drive, Valhalla, NY 10595, By: Michael P. Mezzacappa, Esq., Stephanie Gitnik, Esq., Of Counsel

Goldberg Segalla LLP, Co-Counsel for BJ's Wholesale Club, 200 Garden City Plaza, Suite 520, Garden City, NY 11530, By: Joseph D. Velez, Esq., Of Counsel

O'Connor, O'Connor, Hintz & Deveny, Counsel for ADT LLC and Defenders, Inc., 1 Huntington Quadrangle, Melville, NY 11747, By: Robert E. O'Connor, Esq., Of Counsel

No attorney appearances for RS Ningbo, Inc., Royal Sovereign Qingdao a/k/a RS Qingdao

MEMORANDUM OF DECISION & ORDER

ARTHUR D. SPATT, United States District JudgeOn December 1, 2017, Thomas Sidik ("T. Sidik" or the "Plaintiff") commenced this action individually, as Administrator of the Estate of Kristen A. Sidik ("K. Sidik"), his wife, and on behalf of K.S. and C.S., his two infant children (the "Children"), against Royal Sovereign International Inc., Royal Centurion Inc. (together, the "Royal Defendants"), RS Ningbo, Inc., Royal Sovereign Qingdao a/k/a RS Qingdao (together, the "Non-Appearing Defendants"), BJ's Wholesale, Inc. ("BJs"), ADT LLC ("ADT"), and Defenders, Inc. d/b/a Protect Your Home ("Defenders") (all together, the "Defendants") after a fire at his home on August 24, 2016. The incident caused severe injuries to the Children and K. Sidik. Later that year, K. Sidik passed away from her injuries.

The Plaintiff asserts the following claims: (1) negligence against the Royal Defendants, the Non-Appearing Defendants and BJs; (2) negligence against ADT and Defenders; (3) breach of express warranty against the Royal Defendants, the Non-Appearing Defendants and BJs; (4) breach of implied warranty against the Royal Defendants, the Non-Appearing Defendants and BJs; (5) failure to warn against the Royal Defendants, the Non-Appearing Defendants and BJs; (6) strict liability against the Royal Defendants, the Non-Appearing Defendants and BJs; and (7) wrongful death against the Defendants.

Presently before the Court is a motion by ADT and Defenders (together, the "Moving Defendants"), pursuant to Federal Rule of Civil Procedure (" FED. R. CIV. P. " or "Rule") 12(b)(6), seeking to dismiss the second and seventh claims for failure to state a claim upon which relief may be granted.

For the following reasons, the Moving Defendants' motion to dismiss is granted.

I. BACKGROUND

Unless otherwise noted, the following facts are drawn from the Plaintiff's complaint, and for the purposes of the instant motion, are construed in favor of the Plaintiff.

On or about June 6, 2012, T. Sidik and K. Sidik purchased a portable air conditioner manufactured by the Royal Defendants. This air conditioning was placed in the dining room of the family home, located at 38 Sterling Lane in Smithtown, New York (the "Residence").

Later that month, T. Sidik entered into an alarm services contract with Defenders (the "Contract"), an ADT authorized detailer. See Ex. F-1, Dkt. 29. The Contract had an initial term of three years and covered "alarm monitoring and notification services" as well as equipment installation and connection. It was signed by T. Sidik and was subsequently assigned to ADT. The Plaintiff agreed to a monthly service rate of $44.99. The Contract includes a disclaimer that Defender is not an insurer of the safety of persons or the condition of the property covered. The Plaintiff purchased an Impassa Base, key fob, wireless carbon monoxide detector, cellular backup, two wireless door/window sensors, three wireless shock detectors and a wireless smoke communicator. In pertinent part, the Contract details the following:

You acknowledge that: (a) We have explained the full range of protection, equipment, and services available to You, (b) additional protection over and above that provided herein is available and may be obtained from Us at an additional cost to you (c) You desire and have contracted for only the equipment and services itemized on this Contract ... We are not a security consultant.

...

NO LIABILITY; LIMITED LIABILITY. IT WILL BE EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES THAT MAY RESULT FROM OUR FAILURE TO PERFORM OUR DUTIES UNDER THIS CONTRACT. YOU AGREE THAT WE AND OUR ASSIGNEES ... ARE EXEMPT FROM LIABILITY FOR ANY LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE ARISING DIRECTLY OR INDIRECTLY FROM THE SERVICES, .. WE PERFORM OR THE SYSTEMS WE PROVIDE UNDER THIS CONTRACT. IF IT IS DETERMINED THAT WE OR ANY OF OUR ASSIGNEES ... ARE DIRECTLY OR INDIRECTLY RESPONSIBLE FOR ANY SUCH LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE, YOU AGREE THAT DAMAGES SHALL BE LIMITED TO THE GREATER OF $500 OR 10% OF THE ANNUAL SERVICE CHARGE YOU PAY UNDER THIS CONTRACT. THESE AGREED UPON DAMAGES ARE NOT A PENALTY. THEY ARE YOUR SOLE REMEDY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE IS CAUSED, EVEN IF CAUSED BY OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT. AT YOUR REQUEST, WE MAY ASSUME ADDITIONAL LIABILITY BY ATTACHING AN AMENDMENT TO THIS CONTRACT STATING THE EXTENT OF OUR ADDITIONAL LIABILITY AND THE ADDITIONAL COST TO YOU. YOU AGREE THAT WE ARE NOT AN INSURER EVEN IF WE ENTER INTO ANY SUCH AN AMENDMENT.

...

EXCLUSIVE DAMAGES REMEDY. YOUR EXCLUSIVE DAMAGE AND LIABILITY REMEDIES ARE SET FORTH IN PARAGRAPH 6 ABOVE. WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.

...

HOLD HARMLESS. IN THE EVENT ANY LAWSUIT OR OTHER CLAIM IS FILED BY ANY OTHER PARTY AGAINST US OR OUR ASSIGNEES ... ARISING OUT OF THE SERVICES WE PERFORM OR THE SYSTEMS WE PROVIDE UNDER THIS CONTRACT, YOU AGREE TO BE SOLELY RESPONSIBLE FOR, AND TO INDEMNIFY AND HOLD US COMPLETELY HARMLESS FROM

SUCH LAWSUIT OR OTHER CLAIM INCLUDING YOUR PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS' FEES. THESE OBLIGATIONS WILL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS CONTRACT. THESE OBLIGATIONS WILL APPLY EVEN IF SUCH LAWSUIT OR OTHER CLAIM ARISES OUT OF OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT.

The Contract at 2-4 (capitalization in original). In paragraph 10, the Contract provides a one-year statute of limitations from the date of the "event that resulted in loss, injury, damage or liability."

On the evening of August 23, 2016 to the early morning of August 24, 2016, a fire engulfed the Residence. At the time K. Sidik and the Children were at the Residence and in bed. As a result of the fire, K. Sidik and the Children suffered serious injuries. K. Sidik was hospitalized until December 15, 2016, when she passed away from her injuries.

The Plaintiff alleges that the fire began in the portable air conditioner and that the plastic encasement in the unit caused "thick, hot, toxic smoke [to] permeate[ ] throughout the [Residence]." He contends that the smoke detector was negligently installed by Defenders on the basement wall, which purportedly violated industry codes and standards, the manufacturer's installation instructions, and company policies. By the time the smoke from the fire reached the smoke detector, which was installed on a wall in the basement, and alerted the central station monitoring service, the bedrooms where the Children and K. Sidik were located were already engulfed in smoke.

On February 7, 2018, the Moving Defendants filed the instant motion, seeking to dismiss the second and seventh causes of action, the only claims that relate to their liability. The notice of motion incorrectly states that they seek dismissal of cross-claims against the Moving Defendants prior to their service. At that time, no cross claims had been asserted against the Moving Defendants. On March 1, 2018, the Royal Defendants filed their answer and included a cross-claim against the Moving Defendants and the Non-Appearing Defendants. Two weeks later, BJs filed its own answer and also included a cross-claim against the Moving Defendants and the Non-Appearing Defendants. In their reply briefing papers, the Moving Defendants acknowledge the mistake, which was the result of an oversight. Under these circumstances, the Court considers the portion of the instant motion related to cross-claims withdrawn and will not consider any related arguments.

II. DISCUSSION

A. STANDARD OF REVIEW: FED. R. CIV. P. 12( B )(6)

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See, e.g., Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016) ; Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013) ; Cleveland v. Caplaw Enters. , 448 F.3d 518, 521 (2d Cir. 2006) ; Bold Elec., Inc. v. City of New York , 53 F.3d 465, 469 (2d Cir. 1995) ; Reed v. Garden City Union Free Sch. Dist. , 987 F.Supp.2d 260, 263 (E.D.N.Y. 2013).

Under the Twombly standard, the Court may only dismiss a complaint if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167...