Thuku v. 324 E. 93 LLC

• Docket Number: Index 452203/2018
• Decision Date: 12 April 2022
• Citation: 2022 NY Slip Op 31267 (U)
• Parties: TIMOTHY THUKU, as the Administrator of the Estate Of LEMIVIY THUKU, Plaintiff, v. 324 E. 93 LLC, PERRY GAULT MANAGEMENT CO. INC., DAVID SHEPHERD, ASHLEY SHEPHERD, Defendant.
• Court: New York Supreme Court

1

2022 NY Slip Op 31267(U)

TIMOTHY THUKU, as the Administrator of the Estate Of LEMIVIY THUKU, Plaintiff, v. 324 E. 93 LLC, PERRY GAULT MANAGEMENT CO. INC., DAVID SHEPHERD, ASHLEY SHEPHERD, Defendant.

Index No. 452203/2018

Supreme Court, New York County

April 12, 2022

Unpublished Opinion

MOTION SEQ. NO. 002

DECISION + ORDER ON MOTION

HON FRANCIS KAHN. III, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 244, 245, 246, 247, 248, 249, 250, 251, 252 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341 were read on this motion to/for SUMMARY JUDGMENT.

Upon the foregoing documents, the motion and cross-motion are determined as follows:

This action arises out of a five-alarm fire that occurred on October 27, 2016, at a five-story walk-up apartment located at 324 East 93'''' Street, New York, New York. Plaintiff, Timothy Thuku ("Thuku"), is the fiduciary of the estate of Lemmy Thuku ("Decedent"), a co-lessee of an apartment at the location. Defendant 324 E. 93 LLC ("324 E 93") was the owner of the premises and Defendant Perry Gault Management Co., Inc. ("Gault") was the managing agent thereof Defendants David Shepherd and Ashley Shephard ("Shephards") were also lessees of an apartment in the building and the fire originated in their premises, apartment 1W. It is undisputed that Decedent, a tenant of apartment 4W, perished in the fire and that his body was found at the foot of the third-floor landing. The Office of the New York City Medical Examiner determined the cause of death was smoke inhalation.

The fire was investigated by the New York City Fire Department and Fire Marshal Kenneth Hettwer was assigned. A Fire Incident Report, dated February 1, 2017, was issued, and stated the following under the heading Origin and Extension:

Examination showed that fire originated in the subject premises, on the first floor, in apartment 1-W, in the living room approximately one foot from the north wall and one foot from the west wall at floor level in a combustible material (electrical cord insulation). Fire extended to the contents of the living room. Fire further extended to the walls and ceiling. Fire further extended to the entire apartment. Fire further extended to the public hallway through the apartment door. Fire further extended to the walls and ceiling of the first floor public hallway. Fire further extended to the staircase to the second floor. Fire further extended to the walls and ceiling of the second floor public hallway. Fire further extended to the second floor apartments. Fire further extended to the second, third, fourth and fifth floor apartments via the interior stairs and auto exposure from the shafts. Fire extended to the bottom of the west light shaft via drop down. Fire extended to the basement via window. Fire further extended to the light/air shaft on the exposure four side via windows to shaft. Fire further extended to the second, third, fourth and fifth floor via auto exposure. Fire further extended to the cock loft and roof structures.

Fire further extended to all floors of 326 and 322 East 93rd Street with extension to the shaft rooms of the structure.

Fire further extended to the person of Rocco Clauss (M, W, DOB 5/29/92)

Fire further extended to the person of Lemmy Thuku (M, B. DOB 4/29/87)

Fire further extended to the person of James Duffy (]VI, W. DOB 6/20/35)

Fire was confined and extinguished thereto.

On October 28, 2016, the New York City Department of Buildings ("NYCDOB") issued a violation for the building noting that it has suffered extensive damage and that 90% of the roof as well as portions of the third and fifth floors had collapsed. NYCDOB directed that demolition of the building commence the same day as the order. 324 E 93 contracted Casella Construction Corporation ("Casella Construction") to demolish the premises. Their contract provided that "the insurance proceeds is the sole and total compensation due to contractor for contractor's full performance of the contract." Casella Construction retained multiple subcontractors to perform the actual demolition and contracted with Howard I. Shapiro & Associates, PC as consulting engineers for the project. Demolition commenced on October 28, 2016, and continued 12-hours per day until completion. Investigators retained by 324 E 93's insurer were on scene throughout the demolition and took numerous photographs both inside and outside the structure.

Plaintiff commenced this action alleging two causes of action for negligence and wrongful death against all Defendants.^[1] In the three bills of particulars. Plaintiff posited numerous specific theories to support the claims of negligence, including: absence of a properly functioning self-closing door to apartment 1W, failing to annually inspect the self-closing doors in the building, an absence of sufficient functioning smoke detectors in the building, failing to inspect and replace the electrical wiring in the building, failure to install a sprinkler system and fireproof mg materials in the building as well as various statutory and code violations. Plaintiff also served a second supplemental bill of particulars seeking punitive damages. Defendants 324 E 93 and Gault answered collectively and pled nineteen (19) affirmative defenses as well as cross claims against Shepherds for common-law indemnification, contribution, and contractual indemnification. Defendant Shepherds answered and raised ten (10) affirmative defenses.

Now, Defendants move for summary judgment dismissing Plaintiffs complaint on the issue of liability, dismissing the punitive damages claim and for an order limiting the jury's apportionment of fault against the Gault Defendants, if any, to 50% or less, thereby entitling the Gault Defendants to the protections of CPLR § 160rs limitations on joint and several liability. Plaintiff opposed the motion and cross-moved to strike the answer of Defendants 324 E 94 and Gault for spoliation by demolishing the building at issue, summary judgment on liability against Defendants 324 E 94 and Gault, extending Plaintiffs time to move for summary judgment, if necessary, and for an immediate inquest on damages. The Shepherd Defendants partially oppose Defendants 324 E 94 and Gault's motion.

I. DEPOSITIONS

Jeffrey Gault's Deposition Testimony

Jeffrey Gault ("Jeffrey") testified that he is the President of Defendant Gault and a Managing Member of Defendant 324 E 93. He averred 324 E 93 acquired the building in 2007 and that no inspection of the premises was performed by an engineer before taking title. The premises was a five-story building, without an elevator, which had two residential apartments on each floor, designated as either East or West. Jeffrey initially testified the building was constructed in the early 1920's, but later averred he did not know when it was built. Gault performed maintenance at the premises and retained a superintendent to accomplish those tasks. During 324 E 93's ownership, the superintendent never resided at the premises. As to the tenancies, Jeffrey testified that apartment IE was leased by Carmen Pisani ("Pisani"), apartment 1W was leased by Defendant Shepherds, apartment 2W was leased by Justin Love ("Love") and that Decedent and Gregory Kraft ("Kraft") leased apartment 4W.

He averred that after acquisition of the property, certain apartments, including 2E, 2W, 3W, 4E and 4W were extensively renovated, but apartment IW was not. Most of the apartments were renovated from 2007 to 2011 and included installation of a second bathrooms and new kitchens. Jeffrey did not know if permits from NYCDOB were not obtained to perform the work but claimed the contractor, RM Contracting, was supposed to obtain same. He admitted that City personnel never inspected the completed work.

Jeffrey stated that all the apartments had at least one door which opened on to a common hallway and that the apartments on the second to fifth floors had an additional door. He claimed the secondary doors were inoperable because no keys to the locks were available and opened into bedrooms. Jeffrey averred that he was not aware whether the main doors on the apartments were self-closing or not, but he claimed that no complaints were ever made regarding the door to apartment 1W. Jeffrey testified that he never physically entered apartment 1W. He also denied ever contacting a vendor to perform work on any apartment door. Jeffrey claimed ignorance as to whether any tenants complained to him about apartment doors slamming when closing.

Jeffrey testified that there was at least one battery powered smoke detector in every apartment, but claimed ignorance as to how many in each, including apartment 1W, and who installed the units. Later in his deposition, Jeffrey averred that apartments 2E, 2W, 3E, 3W, 4E and 4W had three smoke detectors. Jeffrey was unaware whether the batteries in the smoke detectors were ever changed or tested to see if the units were operable. However, Jeffrey claimed that whenever there was "turnover" in one of the apartments he instructed the superintendent to test the smoke alarms. He also stated that annual notices regarding the smoke detectors were sent to all tenants. Jeffrey stated that a single smoke detector was installed on each floor of the common hallway, but he was not aware whether these units were ever checked or whether there was an...