The Gap, Inc. v. Fisher Development, Inc.

• Citation: 810 N.Y.S.2d 456,27 A.D.3d 209,2006 NY Slip Op 01524
• Decision Date: 02 March 2006
• Docket Number: 6682.
• Parties: THE GAP, INC., Respondent, v. FISHER DEVELOPMENT, INC., et al., Respondents, ALPHA MECHANICAL CORP., Appellant, and FIREMAN'S FUND INSURANCE COMPANY, Intervenor-Respondent.
• Court: New York Supreme Court Appellate Division

27 A.D.3d 209

810 N.Y.S.2d 456

2006 NY Slip Op 01524

THE GAP, INC., Respondent, v. FISHER DEVELOPMENT, INC., et al., Respondents,

ALPHA MECHANICAL CORP., Appellant, and

FIREMAN'S FUND INSURANCE COMPANY, Intervenor-Respondent.

6682.

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

March 2, 2006.

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 12, 2004, after a jury trial, awarding plaintiff the principal sum of $88,837.02 against defendant Alpha Mechanical Corp. and awarding defendant Kaback Enterprises judgment against Alpha for common-law indemnification, unanimously modified, on the law and the facts, to vacate award of common-law indemnification, and otherwise affirmed, without costs.

Plaintiff The Gap, Inc. operates the Old Navy store at 18th Street and Sixth Avenue. Defendant Fisher Development, Inc. entered into a contract with The Gap to serve as general contractor for new construction and remodeling work for The Gap's chain of stores, including the Old Navy store in question. Defendant Kaback Enterprises was Fisher's subcontractor for HVAC system and hot water pipe construction. Defendant Alpha Mechanical Corp. supplied Kaback with the hot water piping and installed it, pursuant to a one-page purchase order indicating piping to be shipped to "The Gap" at the Old Navy store on Sixth Avenue and installed "as per plans and specs."

On March 1, 1996, a leak at the store caused substantial property damage. The Gap then sued Fisher, Kaback and Alpha on theories of negligence and breach of contract.

At trial it was established that the leak was caused by the fracture of a corroded drain valve cap, which was made of zinc aluminum alloy rather than from brass as required by the plans and specifications. Robert S. Vecchio, The Gap's expert metallurgical engineer, testified that he had analyzed the cap that Alpha had installed on the drain valve, which was the source of the leak. The cap did not burst off, because its inner threads holding it to the pipe were still in good condition. Rather, it had thinned out and corroded from the hot water because it was made of zinc aluminum alloy instead of brass. He testified that brass and bronze alloys are acceptable for use in plumbing systems, but zinc aluminum alloys are not supposed to be used in contact with hot water. However, he acknowledged that the composition of the cap could not be discerned upon mere observation.

Michael Holland, Alpha's field director, also testified that the cap should have been brass or bronze, and that anything else would not be good practice. Indeed, Alpha's specifications for the drain valve and cap provided that the cap be made of brass. Holland maintained that he had ordered brass caps; however, he did not have copies of the orders, receipts or specifications. When the order came in, the foreman at the site was responsible for checking the caps to see they were brass, and met the specifications, but Holland was not sure whether that was done in this instance. He had not told the supplier that the order was for a pressure hot water system, and conceded that sometimes it would send substandard materials.

At the close of the trial, the jury found Alpha not negligent, but found that it had breached its contract with Kaback, which breach was a proximate cause of the damage. As to Kaback, the jury found that it was negligent, but that its negligence was not a proximate cause of the damages; however, Kaback was found to have breached its contract...