St. Paul Travelers v. Adco Electrical Corp., 2008 NY Slip Op 32142(U) (N.Y. Sup. Ct. 7/31/2008)
| Decision Date | 31 July 2008 |
| Docket Number | 0100130/2006.,Motion Seq. No. 002. |
| Citation | 2008 NY Slip Op 32142 |
| Parties | ST. PAUL TRAVELERS, as subrogee of Henegan Construction, Plaintiff, v. ADCO ELECTRICAL CORP., Defendant. |
| Court | New York Supreme Court |
MEMORANDUM DECISION
Defendant Adco Electrical Corp. ("defendant") moves for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff St. Paul Travelers, as subrogee of Henegan Construction ("plaintiff).
Plaintiff cross moves for an order pursuant to CPLR 3212 (1) granting plaintiff summary judgment as against defendant in the amount of $137,358.00, plus interest thereon, computed from June 10, 2003; or alternatively (2) entering judgment on liability in favor of plaintiff as against defendant, and directing that a hearing shall be conducted to determine the amount of the judgment to be awarded to plaintiff, and additionally (3) judgment for attorneys fees to be awarded to plaintiff as against defendant as called for by the applicable subcontract.
The Complaint asserts two causes of action. The first cause of action is for negligence . The second cause of action is for breach of contract. Plaintiff's Bill of Particulars details the second cause of action as follows: (1) damage to property; and (2) pursuant to the subcontractor indemnification agreement, defendant was to indemnify and hold harmless plaintiffs subrogor for damages arising from the performance of defendant's work.
As to the specific damage, the Bill of Particulars states "A new transformer, scheduled for installation by defendant Adco Electrical, was damaged when copper connectors/channeling were removed from the unit" (¶ 4). At the time of the damage the transformer was on the MI level which is between the fourth and fifth floor; it is a mechanical floor.
The subcontract entered into between plaintiff's subrogor Henegan and defendant (the "Subcontract") provides in pertinent part as follows:
6. Indemnification
6.1 To the fullest extent permitted by law, [Adco] shall indemnify and hold harmless [Henegan]....from and against all claims, damages, losses and expenses, including, but not limited to, attorneys' fees, arising out of or resulting from the performance of [Adco's] Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, regardless of whether or not it is caused in part by a party indemnified hereunder....
Christopher Drutjons ("Drutjons") is a project director for Henegan and was such at the time of the property damage at issue herein (p. 7). On-site security personnel was provided by Deutsche Bank, not through Henegan (p.17). As part of the project at 60 Wall Street, transformers were to be installed in the building. There were numerous types of transformers throughout the project. Specifically, there were 12 existing main service transformers that were part of the building prior to the start of the project. Part of the work that Henegan was contracted to do involved changing out 12 of these existing main service transformers (p. 30). The property damage at issue herein occurred to one of these 12 main service transformers (p. 31). Henegan's installation of these transformers would typically be done two at a time; have two delivered to the site, take out two existing ones and replace them with two new ones over the course of a long weekend. During one of these phases, Con Edison was unable to turn the power off, but delivery of a pair of transformers had to be taken. This left a situation where two transformers had to be stored in the building. One of them was stored in the mechanical mezzanine level and that is the one that was eventually discovered that was vandalized while the project was waiting for Con Edison to arrange for an electrical shutdown (pp. 31-33). This witness does not know who among Deutsche Bank, Henegan, Adco and personnel from Jones, Lang, LaSalle (the management company) made the decision as to where the transformer would be stored (p. 41).
Gerald Pugliese ("Pugliese") is a general foreman for Adco and has been so for eleven years. For two years prior to that, he was a foreman (p. 6). Adco's project of replacing transformers began in the early part of 2003 and ended October or November 2003 (p. 10). He became aware of the damage when it was getting close to the time to install the transformer; it was noticed that a couple of bars were missing (p. 15). The person who discovered the damage was not an Adco employee (p. 16).
Adco accepted delivery for the transformer. A different company, Alco Rigging, placed the transformer on the M1 level (p. 16). Henegan and the Deutsche Bank made the decision to store the transformer on the M1 level (p. 17). That decision was made at a meeting at which Pugliese was present (p. 18). When the transformer was taken to the M1 level, it had to be taken apart in pieces and rigged up a shaft. Adco did this work. Pugliese was present when the subject transformer was taken apart. On the Ml level, the transformer was reassembled (p. 20). There was a period of three to four months between the transformer being moved up to M1 and the realization of the damage (p. 21). Adco and the rigging company were responsible for the disassembling and reassembling work of the transformers (p. 23). The subject transformer was partially disassembled prior to being rigged up to the M1 level by Adco and the rigging company (p. 50). The disassembly took place on the loading dock (p. 52).
This action for property damage arises out of an incident that allegedly occurred at some time between May 9, 2003 and June 5, 2003 (at which time the vandalism was discovered), whereby plaintiff claims that a transformer purchased from the defendant was vandalized while being stored at the M1 level and awaiting installation at the Deutsche Bank building located at 60 Wall Street, New York, New York (the "Deutsche Bank"). The transformer was being stored on a locked floor access to which access was controlled by Deutsche Bank. It had not yet been installed when vandals opened the case and removed a number of parts.
Henegan Construction ("Henegan") was the general contractor retained by Deutsche Bank to renovate the premises. Henegan retained defendant as an electrical subcontractor hired to install a transformer that had been purchased by Henegan directly from Olsun Electric Corporation (presumably the manufacturer). Defendant's Subcontract contained a standard indemnification provision indemnifying Henegan for any damage "arising out of or resulting from the performance of subcontractor's work." The provision covered damage to property "other than the work itself."
Defendant had no responsibility for security under its contract as Deutsche Bank employees or subcontractors handled this function. Also, there has never been anyone arrested or even suspected of the vandalism to the transformers, and the Deutsche Bank security logs and cameras provided no substantial leads. Deutsche Bank made a claim against Henegan under their contract. And Henegan's insurance carrier, plaintiff, paid the claim and now seeks recovery from defendant under right of subrogation. It is unclear whether Deutsche Bank was paid as an additional insured under Henegan's policy or pursuant to an indemnification agreement.
The mere fact that an accident occurs does not mean that a defendant is liable unless the plaintiff can show how the defendant's breach of some duty caused or contributed to the incident that allegedly caused plaintiff's injuries. As there is no proof whatsoever, in admissible form, that plaintiff's injuries were caused as a result of any action or inaction on the part of any employees or agents of defendant, defendant is entitled to summary judgment as a matter of law.
In this case, defendant had no ability to control the area where the incident is alleged to have taken place. Furthermore, security for the area was the responsibility of the building owner Deutsche Bank. Defendant's contractual responsibilities were merely to rig and install a transformer that was purchased by Henegan from the manufacturer. Consequently, defendant owed no duty to plaintiff to secure the area where the incident occurred.
Further, plaintiff cannot show an act or omission of defendant that was a proximate cause of the alleged damages. Clearly the action of an unknown third party in vandalizing the transformer, and not any action of defendant is the proximate cause of these damages. Thus, even if defendant were otherwise found negligent, the chain of liability has been broken.
Plaintiff concedes that no determination of negligence can be made, based upon available information. However, defendant's moving papers are silent with regard to the allegations contained in plaintiff's second cause of action, which arises from the provisions of a Subcontract entered into between plaintiff's subrogor Henegan and defendant. Plaintiff is entitled to the entry of judgment based upon the second cause of action in plaintiff's complaint.
The Subcontract clearly provides that Adco was responsible to indemnify plaintiff's subrogor for all property damages. The intent is clear and is coupled with an insurance clause that reiterates the point. Defendant failed to indemnify Henegan, which was forced to seek recovery under its own insurance policy, though by the terms of the Subcontract, plaintiffs subrogor should have been reimbursed by defendant or defendant's insurance.
The Subcontract contains a provision that includes...
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