FORMAT FURNITURE INC v. HARTZELL (2020)

The following e-filed documents, listed by NYSCEF document number (Motion 006) 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269 were read on this motion for JUDGMENT - SUMMARY.

In this action to recover damages for injury to property, fourth third-party defendant S & J Industrial Corp. (S & J) moves for summary judgment dismissing the fourth third-party complaint (motion sequence no. 006).

BACKGROUND

This action arises out of two separate water leaks that occurred in a mixed-use condominium building located at 42-50 Wooster Street, in New York, New York (the condo building). The first leak, which occurred on February 15, 2016, is alleged to have originated from a frozen pipe on the sixth floor in unit 6NF, owned by Timothy N. Hartzell and Leslie B. Hartzell (together the Hartzells). The second leak, which occurred on April 17, 2016, is alleged to have occurred on the second floor in Unit 2NF, as a result of a defective waterline and/or pipe that was improperly maintained and/or installed. Unit 2NF is owned by Robert Lande and Karma Lande (together the Landes).

Format Furniture Inc. (Format), a high-end furniture showroom and retail store, subleased a commercial unit on the ground level and cellar floor of the condo building. In September 2016, it commenced this action against the Hartzells and the Landes, as well as the managing agent for the condo building the Andrews Organization, Inc. (Andrews), and Susan B. Daimler as the condo board's president (Daimler), alleging that it sustained extensive damage as a result of the leaks.

Andrews and Daimler commenced a fourth third-party action against S & J, alleging that, prior to the leak in Unit 2NF, S & J improperly, negligently and/or carelessly undertook repairs in the unit (Fourth Third-Party Complaint at ¶¶ 14, 20, NYSCEF Doc. No. 227). They allege that S & J entered into an contract with the Landes to perform such repairs, pursuant to which S & J agreed to defend and indemnify Andrews and Daimler against all claims of the nature being asserted by Format in the instant action, and to purchase insurance for their benefit, or to name them as an additional insureds on a general liability policy (id. at ¶ 14, ¶¶ 25-26, ¶¶ 33-34). They set forth causes of action against S & J for contribution, common-law indemnification, contractual indemnification, and breach of contract for failure to procure insurance. S & J now moves for summary judgment dismissing the fourth third-party complaint.¹

DISCUSSION

“On a motion for summary judgment, facts must be viewed ‘in the light most favorable to the non-moving party’ ” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). The “movant bears the heavy burden of establishing ‘a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ ” (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “Once this showing has been made ․, the burden shifts to the party opposing the motion ․ to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d at 562).

“When deciding a motion for summary judgment, the court's function is issue finding rather than issue determination” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 481 [1st Dept 2018]). “[S]ummary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues” (Aguilar v City of New York, 162 AD3d 601, 601 [1st Dept 2018]).

Here, S & J contends that it is entitled to summary judgment dismissing the fourth third-party complaint against it because it was not involved in any work at the condo building prior to April 17, 2016, the date of the second leak. In support of this contention, S & J proffers the affidavit of its principal and founding member Semyon Pivovarov (Pivovarov Affidavit, NYSCEF Doc. No. 228). Pivovarov states that S & J did not perform any work in Unit 2NF prior to February 2017, when NYC Builders and Contractors Group, Inc. hired it to perform plumbing installation work at the condo building (id. at ¶¶ 3-4). Pivovarov avers that, on February 6, 2017, the New York City Department of Buildings (the DOB) issued S & J a building permit to perform the work (id. at ¶ 5). He attaches the permit to his affidavit (DOB Permit, NYSCEF Doc. 229). According to Pivovarov, S & J “did not perform any radiator, plumbing, or heating work in Unit 2NF․ prior to or subsequent to the April 17, 2016 flooding incident” or “any work at the [condo building] that led to the property damage or loss alleged in the Complaint” (Pivovarov Affidavit at ¶¶ 7-8, NYSCEF Doc. No. 228).

S & J asserts that the foregoing establishes that it did not perform any work at the condo building prior to the leaks, requiring dismissal of the causes of action asserted against it sounding in common-law indemnification and contribution. S & J further contends that it is incontrovertible that no written contract exists between S & J and the Landes. It asserts that, even assuming arguendo that a contractual agreement does exist for the work it performed 10 months after the loss, it could not apply retroactively to provide contractual indemnification or insurance procurement for damages not caused by S & J occurring10 months before it was retained.

Contrary to S & J's contention, it fails to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint. S & J attempts to establish its prima facie case by submitting Pivovarov's affidavit and the DOB permit. However, Pivovarov states that his affidavit “is based upon [his] personal knowledge and upon [his] review of the business records maintained by S & J” (id. at ¶ 2 [emphasis added] ). Although “a witness may always testify as to matters which are within his or her personal knowledge through personal observation” (Bank of NY Mellon v Gordon, 171 AD3d 197, 206 [2d Dept 2019]), it is not discernable which averments in Pivovarov's affidavit are based upon his personal knowledge, as opposed to his review of the business records. He also does not specify which business records he relied upon and fails to submit those records with his affidavit. Therefore, any averments based upon his review of such records lack probative value (see Residential Credit Solutions, Inc. v Gould, 171 AD3d 638, 638-639 [1st Dept 2019] [“where an affiant's knowledge is based on unidentified and unproduced records, ‘the affidavit lacks any probative value’ and cannot be the basis for an award of summary judgment”], quoting Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479 [1st Dept 1987]; U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774 [2d Dept 2019]).

As to the DOB permit, although it was issued on February 6, 2017, it does not eliminate the possibility that S & J performed work in Unit 2NF prior to that date. Since S & J fails to meet its prima facie burden, the motion is denied without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Matter of New York City Asbestos Litig., 176 AD3d 506, 506 [1st Dept 2019]).

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that fourth third-party defendant S & J Industrial Corp.'s motion for summary judgment dismissing the fourth third-party complaint against it is denied.

This constitutes the decision and order of the court.

FOOTNOTES

1.   Although S & J's notice of motion seeks dismissal of all cross claims as asserted against it, the moving papers do not include an argument addressing any cross claims.

Robert R. Reed, J.