St. Paul Travelers Cos. v. Joseph Mauro & Son, Inc.

• Decision Date: 06 March 2012
• Citation: 93 A.D.3d 658,2012 N.Y. Slip Op. 01669,940 N.Y.S.2d 123
• Parties: ST. PAUL TRAVELERS COMPANIES, INC., etc., plaintiff-respondent, v. JOSEPH MAURO & SON, INC., appellant,Shore Drugs, Inc., defendant-respondent. (Action No. 1).Granite State Insurance Company, etc., plaintiff-respondent, v. Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Son, Inc., appellant. (Action No. 2).Hartford Insurance Company, etc., plaintiff-respondent, v. Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Sons, appellant. (Action No. 3).Utica First Insurance Company, etc., plaintiff-respondent, v. Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Son, Inc., appellant. (Action No. 4).Utica First Insurance Company, etc., plaintiff-respondent, v. Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Son, Inc., appellant. (Action No. 5).Travelers Indemnity Company of America, etc., respondent, v. Joseph Mauro & Son, Inc., appellant. (Action No. 6).
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01669

93 A.D.3d 658

940 N.Y.S.2d 123

ST. PAUL TRAVELERS COMPANIES, INC., etc., plaintiff-respondent,

v.JOSEPH MAURO & SON, INC., appellant,Shore Drugs, Inc., defendant-respondent. (Action No. 1).Granite State Insurance Company, etc., plaintiff-respondent,

v.Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Son, Inc., appellant. (Action No. 2).Hartford Insurance Company, etc., plaintiff-respondent,

v.Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Sons, appellant. (Action No. 3).Utica First Insurance Company, etc., plaintiff-respondent,

v.Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Son, Inc., appellant. (Action No. 4).Utica First Insurance Company, etc., plaintiff-respondent,

v.Blanche, Verte & Blanche, Ltd., et al., defendants-respondents,Joseph Mauro & Son, Inc., appellant. (Action No. 5).Travelers Indemnity Company of America, etc., respondent,

v.Joseph Mauro & Son, Inc., appellant. (Action No. 6).

Supreme Court, Appellate Division, Second Department, New York.

March 6, 2012.

Guararra & Zaitz LLP, New York, N.Y. (Michael J. Guararra of counsel), for appellant.

Badiak & Will, LLP, Mineola, N.Y. (Alfred J. Will and Lisa A. Scognamillo of counsel), for plaintiff-respondent in Action No. 1.

Gwertzman Lefkowitz Burman Smith & Marcus, New York, N.Y. (Robert J. Finn of counsel), for plaintiff-respondent in Action No. 2.Robinson & Cole LLP, New York, N.Y. (Gregory J. Ligelis of counsel), for plaintiff-respondent in Action No. 3.Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Lisa De Lindsay of counsel), for plaintiff-respondent in Action Nos. 4 and 5.O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner of counsel), for respondent in Action No. 6.REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In six related subrogation actions, inter alia, to recover damages for negligence, the defendant Joseph Mauro & Son, Inc., appeals from (1) so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated April 16, 2010, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action No. 1, (2) so much of a second order of the same court, also dated April 16, 2010, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action No. 2, (3) so much of a third order of the same court, also dated April 16, 2010, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action No. 3, (4) so much of a fourth order of the same court, also dated April 16, 2010, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action No. 4, (5) so much of a fifth order of the same court, also dated April 16, 2010, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action No. 5, and (6) an order of the same court dated June 30, 2010, which denied its motion for summary judgment dismissing the complaint in Action No. 6.

ORDERED that the five orders dated April 16, 2010, are affirmed insofar as appealed from; and it is further,

ORDERED that the order dated June 30, 2010, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

These six subrogation actions arise from a fire which occurred on October 24, 2002. The fire originated from premises leased to the defendant Shore Drugs, Inc. (hereinafter Shore Drugs), and damaged Shore Drugs' premises and neighboring premises. The plaintiffs, who are insurers, commenced these actions, as subrogees of various business and premises owners who sustained losses as a result of the fire, against, among others, the defendant Joseph Mauro & Son, Inc., named in Action No. 3 as Joseph Mauro & Sons (hereinafter Mauro). Mauro is an electrical repair company which was hired by Shore Drugs to perform repair work on an electrical panel box at Shore Drugs' premises several days before the fire. The plaintiffs alleged, inter alia, that Mauro negligently repaired the electrical panel box by merely replacing a burned-out circuit breaker without determining the underlying cause of an overheating problem, and that this negligence was a proximate cause of the fire. Mauro moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in each action. With respect to Action No. 6, which was commenced by Shore Drugs' subrogee, Mauro argued, among other things, that the duty of care it owed to Shore Drugs was limited to fixing the problem for which it was called to repair, a “sizzling” sound coming from the electrical panel box. With respect to the other subrogation actions, Mauro argued, inter alia, that it owed no duty of care to the plaintiffs' noncontracting third-party insureds pursuant to Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485. The Supreme Court denied Mauro's motions for summary judgment.

Before a defendant may be held liable for negligence, there must first be a legal duty owed by that defendant to the plaintiff ( see Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Krinick v. Sharac Rest., 144 A.D.2d 440, 533 N.Y.S.2d 1013). Whether a duty exists is a question of law for the court ( see Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128), which must consider the social consequences of imposing a duty and then tailor the duty in order to limit the legal consequences to a controllable degree ( id...