4525 4555 APARTMENTS CORP v. GOLDEMBERG (2018)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered on or about April 4, 2018, which, in this action for property damage, inter alia, denied plaintiff's cross motion for summary judgment to the extent of limiting its damages to those directly caused by the contractor hired by defendants Dina Goldemberg and Isaac Goldemberg, unanimously affirmed, with costs.

Defendants do not dispute that they are required to indemnify plaintiff for the damage their contractor directly caused by drilling into the building's gas line.  However, plaintiff's claim that the need to bring the gas line into code compliance was caused by the accident and requires indemnification by defendants is unavailing.  The proposal letter from the plumber plaintiff hired to have the building's gas service restored after the accident states that the gas line would not pass the pressure test because most of the gas valves were original to the building that was constructed in 1953, and the risers needed to be equipped with lockable gas valves.  The record shows that the problem with the gas line resulted from the age of the valves, which were plaintiff's responsibility to maintain and repair under the proprietary lease because they are part of the building's standard equipment.  That defendants may have furnished the occasion for plaintiff to have to demonstrate that the building's gas distribution system was code compliant before service could be restored does not mean that defendants became responsible for the costs plaintiff incurred in achieving code compliance when such an obligation was not clearly implied under the proprietary lease (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491–492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ).