Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010

CourtUnited States State Supreme Court (New York)
Writing for the CourtLUCY BILLINGS
Citation2014 NY Slip Op 31227
PartiesMAURICE TUCHMAN and ADLIN DE DOMINGO, Plaintiffs v. DEAM PROPERTIES (US), LLC, and EVEREST REALTY HOLDINGS, INC. d/b/a ERH CONTRACTING, Defendants EVEREST REALTY HOLDINGS, INC. d/b/a ERH CONTRACTING, Third Party Plaintiff v. TRUMP PALACE CONDOMINIUMS, Third Party Defendant
Decision Date25 April 2014
Docket NumberIndex No. 590649/2011,Index No. 101056/2010

2014 NY Slip Op 31227

MAURICE TUCHMAN and ADLIN DE DOMINGO, Plaintiffs
v.
DEAM PROPERTIES (US), LLC, and EVEREST REALTY HOLDINGS, INC. d/b/a ERH CONTRACTING, Defendants
EVEREST REALTY HOLDINGS, INC. d/b/a ERH CONTRACTING, Third Party Plaintiff
v.
TRUMP PALACE CONDOMINIUMS, Third Party Defendant

Index No. 101056/2010
Index No. 590649/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

Filed: May 13, 2014
DATED: April 25, 2014


DECISION AND ORDER

LDCY BILLINGS, J.S.C.:

Plaintiffs sue to recover for property damage from two separate floods into their condominium unit 17B from the unit above, 18B, which defendant Deam Properties (US), LLC, owned, and in which defendant Everest Realty Holdings performed renovations, in a condominium building owned by third party defendant Trump Palace Condominiums, at 200 East 59th Street, New York County. In a third party action, Everest Realty seeks contribution and implied indemnification from Trump Palace.

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Trump Palace moves for summary judgment dismissing the third party action and any cross-claims against Trump Palace or for summary judgment on Trump Palace's counterclaims against Everest Realty and on its cross-claim for contractual indemnification against Deam Properties. C.P.L.R. § 3212(b). Everest Realty separately moves for summary judgment dismissing the complaint and Deam Properties' cross-claims against Everest Realty or, at minimum, dismissing plaintiffs' claims for lost rental income and lost earnings. C.P.L.R. § 3212(b) and (e). Plaintiffs cross-move for summary judgment on defendants' liability based on plaintiffs' negligence and breach of contract claims. Id. Deam Properties separately moves for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b). For the reasons explained below, the court grants Everest Realty's motion insofar as it seeks dismissal of plaintiffs' lost earnings claim, grants plaintiffs' cross-motion insofar as its seeks summary judgment on defendants' liability for the flood December 17, 2008, and denies the remainder of the parties' motions and cross-motion.

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4

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N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). Only if the moving parties satisfy this standard, does the burden shift to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). If the moving parties fail to meet their initial burden, the court must deny summary judgment despite any insufficiency in the opposition. JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384; Romero v. Morrisania Towers Hous. Co. Ltd. Partnership, 91 A.D.3d 507, 508 (1st Dep't 2012); Ruth B. v. Whitehall Apt. Co., LLC, 56 A.D.3d 273, 274 (1st Dep't 2008); Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 A.D.3d 244, 245 (1st Dep't 2007). In evaluating the evidence for purposes of the parties' motions and cross-motion, the court construes the evidence in the light most favorable to the opponents. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004).

III. THE MOTIONS IN THE MAIN ACTION

A. Everest Realty's Motion

As a contractor providing services to Deam Properties, Everest Realty is liable to plaintiffs for its negligence or other culpable conduct in performing the contract, when its breacl1 of a cor1tractl1al dt1ty caused plaintiffs' injury, only under one of the following sets of circumstances. (1) Everest

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Realty displaced Deam Properties' duty to maintain its premises in a safe condition. (2) Plaintiffs detrimentally relied on Everest Realty's performance of the contract. (3) Everest Realty launched the "instrument of harm" that caused plaintiffs' property damage. Church v. Callanan Indus., 99 N.Y.2d 104, 111-12 (2002); Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80-81 (1st Dep't 2006); Fernandez v. Otis El. Co., 4 A.D.3d 69, 73 (1st Dep't 2004). The record supports the third set of circumstances based on the undisputed evidence of water leaking into plaintiffs' unit December 17, 2008, that originated from a valve Everest Realty was working on to perform the contract to renovate unit 18B.

To avoid liability for the leak due to Everest Realty's work, Everest Realty must demonstrate that its work did not cause the leak. Corprew v. City of New York, 106 A.D.3d 524 (1st Dep't 2013); Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 447 (1st Dep't 2011); Espinoza v. Federated Dept. Stores, Inc., 73 A.D.3d 599, 600 (1st Dep't 2010); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342 (1st Dep't 2008). See Fernandez v. 707, Inc., 85 A.D.3d 539, 541 (1st Dep't 2011); Bairushi v. Gomo Corp., 18 A.D.3d 240, 241 (1st Dep't 2005); Golden v. Manhasset Condominium, 2 A.D.3d 345, 347 (1st Dep't 2003). Although Everest Realty claims it satisfied its duty as a contractor when it informed Deam Properties of the leak, Everest Realty's evidence of its single report of the leak is its Chief Executive Officer Rivera's inadmissible email to Deam Properties'

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managing agent. See Fernandez v. Otis El. Co., 4 A.D.3d at 71-72. Everest Realty further claims Trump Palace refused to shut off water to unit 18B until a $1,000.00 fee was paid, but again presents only Rivera's hearsay account of an Everest Realty employee's report to Rivera that the employee notified Trump Palace of the leak and the need to shut off the water, but Trump Palace's resident manager refused. In fact the resident manager in his deposition testimony denied that he received any request to shut off water before or after the December 2008 flood. Everest Realty's own account of its measures to prevent the valve from leaking, moreover, that its employee attached one end of a hose to the valve, taped the other end into a sink, and kinked the hose to stop the water flow, falls far short of demonstrating Everest Realty's non-negligent performance of its contract in December 2008. See Rivera v. City of New York, 42 A.D.3d 361, 362 (1st Dep't 2007); Fernandez v. Otis El. Co., 4 A.D.3d at 73.

Regarding the water leak into plaintiffs' unit October 30, 2009, the observation by Trump Palace's security guard Greger Moreau of water surrounding the base of the washing machine that Everest Realty installed demonstrates its potential negligence. By pointing merely to its completion of its work and Deam Properties' acceptance of that work months before the leak, without evidence of the leak's cause, Everest Realty fails to satisfy its burden to demonstrate that it did not cause the leak. Corprew v. City of New York, 106 A.D.3d 524; Lopez v. New York-Life Ins. Co., 90 A.D.3d at 448. At minimum, factual issues

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remain regarding whether Everest Realty created the conditions causing the October 20 09 leak. Kramer v. Cury, 92 A.D.3d 484, 485 (1st Dep't 2012); Lopez v. New York Life Ins. Co., 90 A.D.3d at 447-48; Singh v. United Cerebral Palsy of N.Y. City, Inc., 72 A.D.3d 272, 278 (1st Dep't 2010); Grant v. Caprice Mgt. Corp., 43 A.D.3d 708, 709 (1st Dep't 2007). See Eliasberg v. Memorial Sloan-Kettering Cancer Ctr., 79 A.D.3d 628 (1st Dep't 2010); Corrales v. Reckson Assoc. Realty Corp., 55 A.D.3d 469. 470 (1st Dep't 2008).

Short of summary judgment dismissing the complaint against Everest Realty, it seeks summary judgment dismissing plaintiffs' claims for lost rental income and lost earnings. In their bill of particulars, plaintiffs claim damages of $18,500.00 per month, the rental value of their home in California where they resided while their condominium unit in New York was uninhabitable from the water leaks' damage. Thus plaintiffs' claimed lost rental income is their claimed damages from being deprived of the use and enjoyment of their condominium unit. As long as evidence shows that defendants' wrongful conduct, in depriving plaintiffs of their unit in New York, prevented plaintiffs from renting their California home, their claim for lost rental income is viable even though the unrented premises were not damaged by defendants. Rott v. Negev, LLC, 102 A.D.3d 522 (1st Dep't 2013); Assouline Ritzl LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474 (1st Dep't 2012); Pope v. Saget, 29 A.D.3d 437, 442 (1st Dep't 2006); Cambridge Assoc. v. Town of N. Salem,

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282 A.D.2d 702 (2d Dep't 2001); Soule v. Soule, 252 A.D.2d 768, 770-71 (3d Dep't 1998). See 30-40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333 (2d Dep't 2010); Gettner v. Getty Oil Co., 266 A.D.2d 342, 343 (2d Dep't 1999), There must be a comparison between the value of the premises defendants' conduct caused plaintiffs to vacate and the value of the substitute premises in which plaintiffs resided, preventing them from renting those alternate premises.

Plaintiffs' testimony at their...

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