Preview
INDEX NO. 108271/2007
FILED: NEW YORK COUNTY CLERK 05/05/2011
NYSCEF DOC. NO. 189-4 RECEIVED NYSCEF: 05/05/2011
EXHIBIT
“CO”
NEW TORK OUN 0271/2007,
NYSCEF DOC. NO. 7
SUPREME COURT OF THE STATE OF NEW Yt ‘ORK
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EW VORICEBunty/22/ 2022:
PART 12
Index Number : 108271/2007
BOLTON, JEFFREY noc, 10927|/200}
RCT CONSTRUCTION MOTION DATE
Sequence Number : 009 motion sza.no, __ GOO
SUMMARY JUDGMENT
MOTION CAL. NO.
The following papers, humbered"l to were read GA this motion to/for
| PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits ~ Exhibits
Answering Affidavits — Exhibits A
Replying Affidavits
Cross-Motion: [] Yes No
Upon the foregoing papers, it is ordered that this motion
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Check one: (1) FINAL DISPOSITION 4 NON-FINAL DISPOSITION
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SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK: CIVIL TERM: PART 12
JEFFREY BOLTON and TINA BOLTON, Index No. 108271/07E
Plaintiffs, Mot. Seq, Nos, 009, 010, 011,012.
- against -
DECISION and ORDER
RCT CONSTRUCTION CORP. a/k/a RCT
CONSTRUCTION INC., a/k/a RCT INC., MARIAN
KAZMIERCZAK d/b/a MARIO INTERIORS, STARK.
CARPET CORP., BAJRO MUSANOVIC d/b/a BARY
CARPET SERVICE, ACCURATE ELECTRICAL,
RUDD REALTY MANAGEMENT CORP., and JOHN
DOES 1-10,
Defendants,
X
Appearances:
For Plaintiffs: For Defendant RCT Construction Corp., a/l/a RCT
Warshaw Burstein Cohen Schlesinger & Kuh, LLP. Construction, Ine, a/k/a RCT, Ine.
By: Avi Lew, Esq. Faust Ge Schenker& Blee, LLP.
555 Fifth Avenue By: Jessica Molinares, Esq.
New York, NY 10017 2 Rector Street, 20" Floor
‘New York, NY 10006
For Defendant Marian Kazmierczak d/b/a For Defendant Accurate Electrical Corp, s/h/a Accurate
Mario Interiors Electr
Armienti, DeBel Gugliemo& Rhoden, LLP Farber icks & Zane, LLP
By: John M. Gu, Imo, Esq. By: Tracy L. Frankel, Esq.
44 Wall Street, 18% Floor ‘51 Charles Street, 2° Floor
New York, NY 10005) Mineola, NY 11501
For Defendant Stark Carpet Corporation: For Defendant Bajro Musanovie d/b/a Bary Carpet
Perez& Varvaro Service:
By: Alex M, Temple, Esq. Gambeski Fi
333 Earle Ovington Boulevard By: George P. Gambeski, Esq,
P.O, Box 9372 565 Texter Road, Suite 150
Uniondale, NY 11553, Elmsford, NY 10523
Papers considered in review of these motions:
Motion Sequence Number 009:
Papers E-Fling Document Number
Notice of motion
Affirmation in support and exhibits 90.91
‘Affirmation in opposition
‘Scala affidavit and exhibits
‘Transcript of oral argument
iar
Motion Sequence Number 010:
apers Fling Document Number
Notice of motion, affirmation in support, and exhibits
Memo of law
Affirmation in opposition 139
Page | of 18
- meee
‘Scala affidavit and exhibits 140-142,
‘Motion Sequence Number O11:
Papers ling Document Number
Notice of motion
Affirmation in suy ort
‘Memo of law in support and exhibits 9.103
Motion Sequence Number 012:
ay $ Filing Document Number
Notice of motion, affirmation in support, and exhibits
Affirmation in opposition ist
Scala affidavit and ext 1524155
Motion Sequence Number 013:
pers E-Png Docement Number
‘Notice of motion
Affirmation in support and exhibits 2, sats
Frankel affirmation in opposition
Lew affirmation in opposition 157
Scata affidavit and exhibits 158-159
PAUL G. FEINMAN, J.:
lotions bearing sequence numbers 009, 010, 011, 012, and 013 are consolidated for the
uurpose of this decision and order.
By motion bearing sequence number 009, defendant RCT Construction Corp., a/k/a RCT
Construction, Inc, a/k/a RCT, Inc. (“RTC”) moves to strike the complaint as against it on the
ground of spoliation of evidence (see CPLR 3126 [3)).!
By motion bearing sequence number 010, defendant Marian Kazmierczak d/b/a Mario,
Interiors (“Mario”) moves for summary judgment seeking to dismiss the complaint and cross
claims as against it.
By motion bearing sequence number 011, defendant Accurate Electrical Corp. s/h/a
' RTC characterizes the motion as one for summary judgment but the primary relief
sought is the striking of the complaint as against it on the ground of spoliation of evidence. The
alternative relief sought is summary judgment seeking dismissal of the complaint and cross
claims as against it.
Page 2 of 18
Accurate Electrical (“Accurate”), moves for summary judgment seeking to dismiss the complaint
and cross claims as against it.
By motion bearing sequence number 012, defendant Stark Carpet Corporation (“Stark”)
moves for summary judgment seeking to dismiss the complaint and cross claims as against it.
By motion bearing sequence number 013, defendant Bajro Musanovic d/b/a Bary Carpet
Service (“Bary”) moves to strike the complaint as against it?
For the reasons discussed below, each and every one of the motions is denied in part and
granted in part.
Background
Plaintiffs own apartment 8A at 14 East 75" Street, New York County. In 2006, they hired
he Saladino Group (“Saladino”) to design a renovation and RCT as the general contractor (Doc.
90-5, at 15-16, 26-27, 100-101, 158; Doc. 133 § 9; Doe, 136-3).? RCT then engaged Accurate as
the subcontractor for electrical services (Doc. 134-3, at 25); there was a verbal subcontract
agreement between RCT’s Ronko Caricic and Tzvi Schwartz, Accurate’s President (Doe, 134-6,
at 24), Apparently Saladino retained Mario for painting services (Doc. 133 11; Doc. 134-4, at
18) and, according to Moses Rodriguez, Stark's project manager, Saladino entered into an
agreement with Stark to provide carpeting (Doc. 110-4, at 8), Stark, in turn, hired Bary to
remove existing carpeting and install the new carpeting (Doc. 110-4, at 25-26, 62-63; Doo. 134-
5, at 13),
? Like RTC, Bary also characterizes the motion as one for summary judgment, but the
primary relief sought is dismissal ofthe complaint as a sanction for spoliation.
3 Unless otherwise indicated, all references are to the E-Filing document numbers.
Page 3 of 18
By October 6, 2007, the renovations were nearly completed. It is undisputed that
representatives and/or employees of RCT, Mario, and Bary were, at some point that day, within
the apartment, That evening, at approximately 3:30 A.M. on October 7, 2006, a fire broke out and
destroyed much of the apartment.
‘The various experts’ reports present competing theories of the fire's causation. The Fire
Marshal indicated the fire originated in the electrical breaker panel of the laundry roomwhich
tends to indicate that the cause of the fire was electrical (Doc, 94-1). The Bureau of Fire
Investigation Fire Incident Report concluded that the “fire originated . . . in the laundry room .
in the electrical breaker panel, in combustible materials (wiring/insulation), from heat from
electricity” (Doc. 135-8).
Plaintiffs retained Gerry J. Kelder as a cause and origin expert and Thomas Conlan as an
electrical expert to conduct an investigation which was performed on October 13, 2006 (Doc.
136). Kelder’s report determined “that the fire originated at the floor area in front of the dryer in
the laundry room” (Doc 135-10). While he stated that “the exact ignition source is
undetermined,” Kelder offered three possible causes. “The cause in all probability was due to [1]
a chemical reaction in the scrap carpeting or [2] possibly by a carelessly discarded cigarette or [3]
other heat source” (Doc. 135-10). Most notably, Kelder’s report indicates that he “removed from
the laundry room the burned pieces of carpet and related scraps” (Doc, 135-10).
Ata subsequent deposition, Kelder testified that the “related scraps” were comprised of
* In addition to Kelder an Conlan, fire investigators Edward Peknic and Jonathon LeBow
were also present, Poknic was retained by AIG (Doc. 135-9) and LeBow was retained by
Admiral Indemnity (Doe. 136-1).
Page 4 of 18
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“{cJharred debris, burned debris, unidentified debris” (Doc, 134-9, at 97). He removed the
“debris” from the apartment and sent it to Upstate Lab Inc. for chemical composition analysis
(Doc. 134-9, at 83-85). Upstate drafted a report and Tony Scala, its President and CEO, attested
that the tests indicated the presence of ethylbenzene, which “is a colorless, flammable liquid that
is found in paint,” xylene, “a colorless liquid that catches on fire easily. It is used as a cleaning
agent, a thinner for paint, and in paints and varnishes,” and naphthalene, which “is used to make
other chemicals such as dyes and resins” (Doc. 137-5). Scala also attests, “As is typical in these
types of tests, the entire sample was used up in the testing. Therefore, there was nothing
remaining of the sample to return to Mr. Kelder” (Doe. 134 $6).
Conlon’s report indicated that “[t]he area of origin as established by others was to the
laundry room” (Doc, 136). It concluded that the fire “was not caused by the electrical premises
wiring, electrical equipment or electrical appliances” (Doc. 136, at 9).
Peknic’s report concluded that the fire was “caused by a chemical reaction in carpet
remnants” (Doc, 135-9), He indicated that “an hypothesis can be made carpet remnants placed
on the floor of the Jaundry room after installation came in contact with solvents that created a
chemical reaction igniting the combustible material” (Doc 135-9),
LeBow’s report also concludes that the “[flire originated . . . in the laundry room[,] at
floor level, in combustible materials (discarded carpet remnants, construction rubbish). Fire was
caused by heat from a chemical reaction of the improperly discarded contractors’ materials”
(Doe. 94-6).
On or about October 27, 2010, restorative and cleanup measures were taken by nonparty
Maxons Restorations. At that time, plaintiffs" counsel was Christopher St. Jeanos, Esq. (Doc.
Page Sof 18
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133 29). According to plaintiffs, St. Jeanos “took reasonable steps to preserve the scene as
long as practicable and possible by requesting that the building superintendent refrain from
allowing anyone to clean up the [fJire scene” and submit St. Jeanos’ affirmation to that effect
(Doe. 133 ] 29; Doc. 135-6). According to St. Jeanos, the building manager, John Riordan,
“authorized Maxons Restorations to perform a cleanup of the area where the fire was believed to
have originated” despite St. Jeanos’ express instructions to the contrary (Doc 135-6 {| 6-9). The
complaint alleges that “representatives of Rudd Realty . . . perform[ed] and/or caus[ed] to be
performed certain cleaning and debris removal work to the [aJpartment, in the vicinity of the
[flire’s origin, including, but not limited to, removing and disposing of potential evidence related
to the origin and causation of the [fJire” (Doc. 4-1 162).
In August 2007, plaintiffs commenced this action alleging the following causes of action:
(1) negligence as against RCT; (2) negligent supervision as against RCT; (3) breach of contract
as against RCT premised upon the alleged failure to ensure that the work was performed in a safe
manner and in conformity with law; (4) res ipsa loquitor as aginst RCT; (5) negligerice as against
Mario; (6) breach of contract as against Mario, alleging that plaintiffs were the intended
beneficiaries of Mario's agreements; (7) res ipsa loquitor as against Mario; (8) negligence as
against Stark; (9) breach of contract as against Stark, alleging that plaintiffs were the intended
beneficiaries of Stark’s agreements; (10) res ipsa loquitor as against Stark; (11) negligence as
against Bary; (12) breach of contract as against Bary, alleging that plaintiffs were the intended
beneficiaries of Bary’s agreements (13) res ipsa loquitor as against Bary; (14) negligence as
against Accurate; (15) breach of contract as against Accurate; (16) res ipsa loquitor as against
Page 6 of 18
Accurate; and (17) negligent spoliation as against Rudd Realty Management Corp. (Doc. 4-1).
By order dated March 20, 2009, this court granted, in part, plaintiffs’ motion to quash the
subpoena served upon plaintiffs’ experts (Doc, 135-3). That order provided,
“Given defendants’ inability to have the scene of the fire inspected,
plaintiffs’ expert witnesses should be made available for
examination as to their factual observations of the fire scene
shortly after the incident and during their inspection of the
premises, Inquiry shall be limited to the condition of the premises
and what observations they made.”
This matter was then joined with Pac, Indem. Ins. Co. v RCT Const. Corp.,109287/09,
Admiral Indem, Co. v Bolton, 116719/07, and Am, Intl. Ins. Co. v RCT Inc., 106500/07 for the
purposes of trial and discovery (Doc. 79). Now, despite the fact that the record before this court
is riddled with questions of fact, RCT, Mario, Accurate, Stark, and Bary have each sought,
among other things, summary judgment seeking to dismiss the complaint,
Analysis
1. Motion Sequence Number 009
As against RCT, the complaint alleges four causes of action: (1) negligence; (2)
negligent supervision; (3) breach of contract premised upon the alleged failure to ensure that the
work was performed in a safe manner and in conformity with law; (4) and res ipsa loquitor.
Asa preliminary matter, the court must note that res ipsa loquitor is not a cause of action
(see NY PJ12:65, Comment; accord Abbott v Page Airways, Inc., 23 NY2d 502, 512 [1969]). It
is.a theory of recovery by which to establish negligence (see Crawfordv City of New York, 53
AD3d 462, 465 [1st Dept 2008]. While the parties do not addresses this, the court must
5 By order dated July 15, 2009, this court dismissed the complaint and cross claims
against Rudd Realty (Doc. 90-3).
Page
7 of 18
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nevertheless dismiss plaintiffs’ fourth cause of action because no such cause of action exists.
However, paragraphs 57 through 62 of the complaint shall be deemed incorporated under
plaintiffs’ first and second causes of action for negligence and negligent supervision (see Janotta
v Tishman Speyer Props., Inc., 46 AD3d 297, 298 [Ist Dept 2007]). Notably, even if plaintiff
had not specifically pleaded res ipsa loquitor, this would not “constitute[] a bar to the invocation
of res ipsa loquitor where the facts warrant its application” (Weeden v Armor El. Co., 97 AD2d
197, 202 [2d Dept 1983]). Therefore, plaintifi’s fourth cause of action is dismissed in its
entirety, but paragraphs 57 through 62 shall be deemed incorporated into the first and second
causes of action.
Before addressing the merits of RCT’s motion, the court must address, for the sake of
clarity, a number of defects as a threshold matter, First, while RCT characterizes the motion as
one “pursuant to CPLR §3212 granting summary judgment on the grounds of spoliation of
evidence, or in the alternative, on the grounds that there exists no evidence that the acts or
omissions of [RCT] were the proximate cause of plaintifis’ alleged injuries, and dismissing
Plaintiffs’ Complaint and all cross-claims against [RCT}” (Doc. 90 1), because the primary
telief sought is to strike the complaint for spoliation of evidence this court will treat this branch
of the motion as one made pursuant to CPLR 3126 (3). The court will thereafter address the
alternative relief sought as a motion for summary judgment seeking dismissal of the complaint
and cross claims. Second, while RCT also seeks summary judgment dismissing all cross claims
asserted against it, RCT has completely failed to identify which cross claims it is seeking
summary judgment on, the nature of any such cross claim(s), and the identity of the cross-
claiming party or parties. That branch of RCT’s motion is therefore denied.
Page 8 of 18
Essentially, RCT’s argument is that the complaint should dismissed as against it because
“plaintiffs destroyed key physical evidence; the ‘burned pieces of carpet” and ‘related scraps’
removed during Mr. Kelder’s on-site investigation, thereby prejudicing defendant, RCT, of the
appropriate means to confront the alleged claims and defendant itself” (Doc. 90 $26)
“(T}the determination of an appropriate sanction pursuant to CPLR 3126 lies in the trial
court’s discretion and should not be set aside absent a clear abuse of discretion” (De Socio v 136
E, 56th St, Owners, Inc, 74 AD3d 606, 607 [1st Dept 2010]). Such sanctions range from the
imposition of costs, preclusion of evidence, or entitlement to an appropriate jury charge.
Intentional or even negligent disposal of “crucial items of evidence” could warrant the striking of
a pleading (Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2010], quoting Kirkland v
New York City Hous. Auth, 236 AD24 170, 173 [Ist Dept 1977). “In gauging the severity ofthe
sanction to impose on a spoliator, the court must examine the extent that the spoliation of the
evidence may prejudice a party and whethera dismissal will be necessary as a matter of
elementary fairness” (PJI 1:90, comment).
In opposition, plaintiffs argue that defendants are not entitled to the remedy of striking the
complaint because the order dated March 20, 2009 allowed defendants to examine plaintiffs’
experts as the remedy for any alleged prejudice defendants would have suffered by plaintiff's
alleged spoliation (Doc. 133 43), That order was an attempt to provide defendants with an
opportunity to assess the experts’ factual observations for themselves. Those experts were the
only persons with first hand personal knowledge of the state of the apartment before Maxon.
performed restorative services and before the physical evidence, which is directly relevant to the
issue of the fire's causation, was consumed by the destructive testing performed by Upstate,
Page
9 of 18
Defendants were certainly entitled to at least that much because they were deprived of the
opportunity to independently assess the evidence and to fully assess the premises in the post-
accident pre-restoration condition. However, contrary to plaintiffs’ contention, this court was by
no means prescribing a remedy, let alone the sofe remedy as plaintiffs would argue, for the
spoliation,
Nevertheless, this court finds that striking the complaint would be too harsh a sanction
here because the record before this court does not indicate that plaintiffs conduct constituted
intentional spoliation, Whether plaintiffs’ took all reasonable measures to ensure that the
evidence was not spoliated is unclear, but plaintiffs’ submission of the St. Jeanos affirmation
tends to negate the any allegation that the restoration was attributable to any negligence on
plaintiffs’ part, let alone intentional conduct. The court appreciates how defendants’ ability to
defend against the claims have been impaired, but a trier of fact should determine whether
plaintiffs have met their burden. Instead, the court finds that a proper balance would be found by
granting RCT’s motion only to the extent that defendants shall be entitled to an appropriate jury
instruction, to be crafted by the trial judge a the time of trial, be it an adverse inference charge, or
otherwise,
The remainder of RCT’s motion is flawed, It seeks summary judgment dismissing the
complaint and cross claims as against it because plaintiffS and their experts “have failed to
establish a specific cause of the subject fire” and because “plaintifis["] experts fail to articulate
the exact cause of the subject fire” and “failed to establish a specific cause of the subject fire”
(Doc. 90 §¥] 40, 47). It is axiomatic that as the movant, RTC has the initial burden of
demonstrating entitlement to judgement as a matter of law ~ nor plaintiff (see Zuckerman v City
Page 10 of 18
of New York, 49 NY2d $57, 562 [1980]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d
851, 853 [1985]). RCT’s attempt to place the initial burden onto plaintiffs, who have not moved
for summary judgment, is, simply, contrary to law, Notwithstanding RCT"s failure to shift the
burden to plaintiffs, plaintiffs have nevertheless certainly pointed to questions of fact by
establishing that RCT performed services on the premises on October 6, 2006, the day before the
incident, Plaintiff Jeffrey Bolton also repeatedly and unambiguously testified that RCT was the
general contractor (Doc. 90-5, at 26-27; Doc. 4-1 ff] 12-13). Considering this in light of the
theory of res ipsa loquitor, RCT has failed to meet it prima facie burden as the movant on this
motion for summary,Judgment and, therefore, this branch of RCT’s motion must be denied,
T. Motion Sequence Number 010
As against Mario, the complaint alleges three causes of action: (1) negligence; (2) breach
of contract, alleging that plaintiffs were the intended beneficiaries of Mario’s agreements (Doc,
4-1 49 75-80); and (3) res ipsa loquitor.* Mario moves for summary judgment seeking to dismiss
the complaint and cross claims as against it.
Chatman’s testified that Mario’s agents or employees did in fact paint the laundry room
on October 6, 2006 (Doe, 141-2, 47-58). Upstate’s report indicates that chemicals commonly
used in paint thinners were found within the debris tested by Upstate (Doc. 139 {¥ 89-90). Mario
points to the testimony of Ivan Chatman, of Saladino, and Mariana Kazmierezak to establish that
Mario “left the site by late morning or eatly afternoon the day of the fire” (Doc. 94-7; Doc 94-8).
‘Plaintiffs’ seventh cause of action also alleges res ipsa loquitor against Mario. For the
Feasons discussed supra (see Point I, supra), the seventh cause of action is dismissed and
Paragraphs 81 through 86 of the complaint shall be deemed incorporated under plaintiffs" fifth
cause of action for negligence against Mario.
Page 11 of 18
~ ee
Whether this is true remains to be seen and, in any event, does not establish Mario’s burden.
Even assuming it was true, it would not, contrary to Mario’s contention (Doc, 93 20), entitle
Mario to judgment as a matter of law because there are questions of fact with respect to the cause
of ignition which may or may not be attributable, in whole or in part to Mario. Even if there
were persons other than those within the contro] or supervision of Mario who left the premises
after Mario's employee(s)/agent(s) on October 6, 2006, there may have been material, including
paint cans, paint thinner, or other apparatus that somehow contributed to the cause of the ignition
or exacerbated the fire thereafter This much is readily inferable by Upstate's report and the
Scala affidavit which identify and explain the composition of the debris left in the laundry room,
where the experts conclude the fire began.
‘Whether, as Mario claims, it could not have caused or contributed to the fire because it
was using latex water-based paint, which is not flammable, or because all of Mario's paint cans
were closed, remains to be seen (Doc, 94-7, at 21, 35; Doc. 94-10, at 106) because there are
indications that Mario may have used flammable oil-based materials and thinner (Doc. 94-7, at
80, 84, 158).
That branch of Mario’s motion which seeks to dismiss the breach of contract cause of
action because it did not breach its contract with Saladino is also denied (Doc. 93 29). Mario
has not demonstrated that its conduct did not constitute a breach nor that plaintiffs were not the
intended third-party beneficiaries of the contract.
‘Therefore, Mario's motion is denied except to the extent that Mario too shall be entitled
to an appropriate jury instruction, be it an appropriate charge drafted by the trial judge, be it an
adverse inference charge, or otherwise.
Page
12 of 18
ve
=
Ti. Motion Sequence Number 011
As against Accurate, the complaint alleges three causes of action: (1) negligence; (2)
breach of contract; and (3) res ipsa loquitor.” Accurate moves for summary judgment seeking to
dismiss the complaint and cross claims asserted against it (Doc. 97). Accurate attempts to
support its motion by pointing to those portions of the experts reports that indicate that the fire
was not caused by electrical issues (i.e. Conlan’s report which states that the fire was “not caused
by the electrical premises wiring, electrical equipment or electrical appliances” (Doc, 100-9, at 5,
8-9), Kelder’s (Doc. 100-8), Peknic’s (Doc. 101-5), and LeBow’s (Doc. 101-6, at 7)). As
discussed supra, the reports are conflicting, inconclusive, and certainly lend themselves to
varying interpretations.
Equally unavailing is the fact that Caricic’s testified that Accurate was not in the
apartment at least one week before the incident and that only Mario, RCT, and Bary were present
the day of the incident (Doc. 102-4, at 215-216). By no means does this vitiate the possibility of
Accurate’s performance causing or contributing to the fire because there is no dispute that
Accurate was the’ only electrical contractor retained for the project. Schwartz, however, is not a
licensed electrician (Doc, 134-3, at 86) and admittedly learned on the job (Doc. 134-3, at 192)
and could not recall whether Accurate performed work in the laundry room (Doe. 134-3, at 61).
He also testified that Accurate never sent a licensed electrician to the apartment (Doc, 134-3, at
101), and that instead, Schwartz would confer with his second cousin after he performed
7 Plaintiffs’ sixteenth cause of action also alleges res ipsa loquitor against Accurate. For
the reasons discussed supra (see Point I, supra), the sixteenth cause of action is dismissed and
paragraphs 152 through 157 of the complaint shall be deemed incorporated under plaintiffs"
fourteenth cause of action for negligence against Accurate.
Page 13 of 18
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electrical work (Doc. 134-3, at 174-189), Considering this in light of the fact that the Fire
Marshal indicated that the fire originated in the electrical breaker panel of the laundry room
which tends to indicate that the cause of the fire was electrical (Doc, 94-1) coupled with the fact
that the Bureau of Fire Investigation Fire Incident Report concluded that the “fire originated . . .
in the laundry room . .. in the electrical breaker panel, in combustible materials
(wiring/insulation), from heat from electricity” (Doc. 135-8), Accurate’s motion seeking to
dismiss the complaint must be denied.
The next branch’of Accurate’s motion seeks summary judgment dismissing the cross
claims for contractual indemnification, common Jaw indemnification, and contribution asserted
by Stark (Doc. 137-2 f 13-17), RCT (Doc. 90-2 $f 34-35), and Mario (Doc. 93-2 Ff 65-67)
against Accurate; it also seeks summary judgment dismissing Bary’s claims for common law
indemnification and contribution (Doc. 137-3 13-16).
Accurate arguies that it never entered into an agreement for indemnification with Stark,
RCT, nor Mario and, therefore, those contractual indemnification claims must be dismissed.
Neither Stark, RCT, nor Mario have submitted papers in opposition to this motion. However, the
record here only indicates one agreement entered into by Accurate — a verbal subcontract
agreement between RCT and Schwartz, Accurate’s President, the scope of which cannot be
determined at this juncture (Doc. 134-6, at 24), Therefore, Stark and Mario's cross claims for
contractual indemnification as against Accurate are dismissed.
Accurate also argues that each of the claims for common law indemnification must fail
because “a party sued for its own wrongdoing rather than on a theory of vicarious liability cannot
assert a claim for common-law indemnity. That [pJarty’s sole remedy is contribution” (Doe. 99,
Page 14 of 18
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at 12). As to this branch of its motion, Accurate is correct and, accordingly, the claims and cross
claims for common law indemnification asserted by defendants Stark, RCT, Mario, and Bary as
against Accurate must be dismissed (see Esteva v Nash, 55 AD3d 474, 475 [1st Dept 2008]),
However, that branch of Accurate’s motion seeking to dismiss the cross claims for
contribution must be denied for the reasons indicated supra.
Iv. Motion Sequence Number 012
As against Stark, the complaint alleges three causes of action: (1) negligence; (2) breach
of contract; and (3) res ipsa loquitor.* Stark moves for summary judgment seeking to dismiss the
complaint as against it and all cross claims, Like RCT, Stark appears to argue for summary
judgment on the ground of spoliation, To that extent, Stark's “motion for summary judgment,”
which should actually be characterized as a motion to dismiss the complaint as a sanction for
spoliation pursuant to CPLR 3126 (c), is denied for the same reasons that branch of RCT’s
motion is denied (see Point I, supra).
Stark argues that “failure to prove what actually caused an alleged incident, in situation
[sic] where there could be more than one cause, is fatal to plaintiff's claim” (Doc. 110 4 26).
This is unpersuasive because the issue on this motion for summary judgment is not whether
plaintiffs’ claim is ultimately likely to succeed at trial, it is whether Stark, in the first instance,
has, as the movant, demonstrated entitlement to judgment as a matter of law by proving that there
is no triable issue of fact regarding their alleged liability. Stark has not. Aside from Stark's
* Plaintiffs’ tenth cause of action also alleges res ipsa loquitor against Stark. For the
reasons discussed supra (see Point I, supra), the tenth cause of action is dismissed and
paragraphs 105 through 110 of the complaint shall be deemed incorporated under plaintiffs?
eighth cause of action for negligence against Stark.
Page 15 of 18
improper attempt to place the initial burden upon plaintiffS, an issue of fact exists over the entity
or entities who were responsible for placing the debris in the laundry room, There are indications
that Bary installed carpeting at the apartment on the day of the fire (Doc. 110-4, at 52-63). Also,
despite Stark’s conclusory and self-serving assertions that Bary was an independent contractor,
the extent of Stark’s control and/or supervision over their conduct has not been determined as a
matter of law (Doc. 110-4, at 105, 114; Doc. 154-6). Because carpeting debris or scraps may
have caused the fire, and given the indications that both Bary and Stark may have shared the
responsibility for removing the same, issues of fact preclude summary judgment, In fact, Stark
concedes that the “experts make it abundantly clear that the fire could have resulted from
numerous possible causes” (Doc. 110 27). Causation cannot be determined on the extent
record and Stark’s motion for summary judgment must be denied,
Vv. Motion Sequence Number 013
As against Bary, the complaint alleges three causes of action: (1) negligence; (2) breach
of contract as against Bary, alleging that plaintiffs were the intended beneficiaries of Bary’s
agreements; and (3) res ipsa loquitor.'° Bary’s motion is entirely premised “on the grounds of
spoliation of evidence” (Doc. 1129 2). Like RCT and Stark, Bary’s “motion for summary
judgment” should actually have been made pursuant to CPLR 3126 (c). Bary’s motion is denied
° While Stark would have this court believe that Bary was hired as an independent
contractor, Bary merely claims that it “was engaged to install carpet” which is vague enough to
fall outside the purview of status as an independent contractor (Doc. 112 4 8).
°° Plaintiffs? twelfth cause of action also alleges res ipsa loquitor against Bary. For the
reasons discussed supra (see Point I, supra), the twelfth cause of action is dismissed and
paragraphs 123 through 128 of the complaint shall be deemed incorporated under plaintiffs’
eleventh cause of action for negligence against Bary.
Page 16 of 18
for the same reasons that the similarly-premised branches of the RCT and Stark motions are
denied (see Points I and IV, supra). To the extent that Bary's motion could be construed as
actually moving for summary judgment, the motion is denied for the reasons stated in Point IV,
supra. Among other questions of fact, the record does not conclusively resolve which entity
placed the debris, carpet scraps, or other material which may have ignited the fire, in the laundry
room. Considering this in light of the fact that Bary’s Bajro Musanovic was at the apartment on
October 6, 2006 and allegedly spent hours installing carpeting on the date of the incident (Doc.
158-5, at 40-41, 108-109; Doc. 110-4, at 52-62) and may have left the remaining carpeting in the
apartment (Doc. 158-5, at 173), and did not know exactly what he had left behind (Doc. 158-5, at
204), Bary’s motion must be denied. Accordingly, it is
ORDERED that motions bearing sequence numbers 009, 010, 011, 012 and 013 are only
granted to the following extent, and otherwise denied:
(1) defendants shall be entitled to an appropriate jury instruction, to be crafted by
the trial judge as the time of trial, be it an adverse inference charge, or otherwise;
to address the fact that they were unable to inspect certain evidence; and
(2) the claims and cross claims for common law indemnification asserted by
defendants Stark, RCT, Mario, and Bary against Accurate are dismissed; and
(3) the cross claims for contractual indemnification asserted by defendants Stark
and Mario against Accurate are dismissed; and it is further
ORDERED that the complaint’s seventh, tenth, twelfth, and sixteenth causes of action, all
of which purport to state a claim for res ipsa loquitor, are dismissed, but the allegations set forth
therein, shall be deemed incorporated under the first, second, fifth, eighth, eleventh, and
Page
17 of 18
fourteenth causes of action sounding in negligence in accordance with the manner explained
herein; and it is further
ORDERED that the movants shall serve a copy of this order on all parties, third-parties,
and upon the Clerks of Trial Support and Motion Support; and itis further
ORDERED that the parties are directed to appear in Mediation-I as previously scheduled
on January 21, 2010 at 10:00 a.m.
‘This constitutes the decision and order
Dated: January 10, 2011
‘New York, New York
2011_108271_2007_pms_009_010_011_012_0130M4S1)
Page 18 of 18
Preview
INDEX NO. 108271/2007 FILED: NEW YORK COUNTY CLERK 05/05/2011 NYSCEF DOC. NO. 189-4 RECEIVED NYSCEF: 05/05/2011 EXHIBIT “CO” NEW TORK OUN 0271/2007, NYSCEF DOC. NO. 7 SUPREME COURT OF THE STATE OF NEW Yt ‘ORK — Ni RECELV) EW VORICEBunty/22/ 2022: PART 12 Index Number : 108271/2007 BOLTON, JEFFREY noc, 10927|/200} RCT CONSTRUCTION MOTION DATE Sequence Number : 009 motion sza.no, __ GOO SUMMARY JUDGMENT MOTION CAL. NO. The following papers, humbered"l to were read GA this motion to/for | PAPERS NUMBERED Notice of Motion/ Order to Show Cause — Affidavits ~ Exhibits Answering Affidavits — Exhibits A Replying Affidavits Cross-Motion: [] Yes No Upon the foregoing papers, it is ordered that this motion wZ of ao MOTION tS DECIDED IN ACCORDANCE WITH 2a a2 ‘THE ANNEXED DECISIGN ANB ORDER. ou Fu az ie Se Go va Med [at |nak 10 Ary a Dated: vl if 201) ht VS.C. Check one: (1) FINAL DISPOSITION 4 NON-FINAL DISPOSITION Check if appropriate: 1 DO NOT POST O REFERENCE SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK: CIVIL TERM: PART 12 JEFFREY BOLTON and TINA BOLTON, Index No. 108271/07E Plaintiffs, Mot. Seq, Nos, 009, 010, 011,012. - against - DECISION and ORDER RCT CONSTRUCTION CORP. a/k/a RCT CONSTRUCTION INC., a/k/a RCT INC., MARIAN KAZMIERCZAK d/b/a MARIO INTERIORS, STARK. CARPET CORP., BAJRO MUSANOVIC d/b/a BARY CARPET SERVICE, ACCURATE ELECTRICAL, RUDD REALTY MANAGEMENT CORP., and JOHN DOES 1-10, Defendants, X Appearances: For Plaintiffs: For Defendant RCT Construction Corp., a/l/a RCT Warshaw Burstein Cohen Schlesinger & Kuh, LLP. Construction, Ine, a/k/a RCT, Ine. By: Avi Lew, Esq. Faust Ge Schenker& Blee, LLP. 555 Fifth Avenue By: Jessica Molinares, Esq. New York, NY 10017 2 Rector Street, 20" Floor ‘New York, NY 10006 For Defendant Marian Kazmierczak d/b/a For Defendant Accurate Electrical Corp, s/h/a Accurate Mario Interiors Electr Armienti, DeBel Gugliemo& Rhoden, LLP Farber icks & Zane, LLP By: John M. Gu, Imo, Esq. By: Tracy L. Frankel, Esq. 44 Wall Street, 18% Floor ‘51 Charles Street, 2° Floor New York, NY 10005) Mineola, NY 11501 For Defendant Stark Carpet Corporation: For Defendant Bajro Musanovie d/b/a Bary Carpet Perez& Varvaro Service: By: Alex M, Temple, Esq. Gambeski Fi 333 Earle Ovington Boulevard By: George P. Gambeski, Esq, P.O, Box 9372 565 Texter Road, Suite 150 Uniondale, NY 11553, Elmsford, NY 10523 Papers considered in review of these motions: Motion Sequence Number 009: Papers E-Fling Document Number Notice of motion Affirmation in support and exhibits 90.91 ‘Affirmation in opposition ‘Scala affidavit and exhibits ‘Transcript of oral argument iar Motion Sequence Number 010: apers Fling Document Number Notice of motion, affirmation in support, and exhibits Memo of law Affirmation in opposition 139 Page | of 18 - meee ‘Scala affidavit and exhibits 140-142, ‘Motion Sequence Number O11: Papers ling Document Number Notice of motion Affirmation in suy ort ‘Memo of law in support and exhibits 9.103 Motion Sequence Number 012: ay $ Filing Document Number Notice of motion, affirmation in support, and exhibits Affirmation in opposition ist Scala affidavit and ext 1524155 Motion Sequence Number 013: pers E-Png Docement Number ‘Notice of motion Affirmation in support and exhibits 2, sats Frankel affirmation in opposition Lew affirmation in opposition 157 Scata affidavit and exhibits 158-159 PAUL G. FEINMAN, J.: lotions bearing sequence numbers 009, 010, 011, 012, and 013 are consolidated for the uurpose of this decision and order. By motion bearing sequence number 009, defendant RCT Construction Corp., a/k/a RCT Construction, Inc, a/k/a RCT, Inc. (“RTC”) moves to strike the complaint as against it on the ground of spoliation of evidence (see CPLR 3126 [3)).! By motion bearing sequence number 010, defendant Marian Kazmierczak d/b/a Mario, Interiors (“Mario”) moves for summary judgment seeking to dismiss the complaint and cross claims as against it. By motion bearing sequence number 011, defendant Accurate Electrical Corp. s/h/a ' RTC characterizes the motion as one for summary judgment but the primary relief sought is the striking of the complaint as against it on the ground of spoliation of evidence. The alternative relief sought is summary judgment seeking dismissal of the complaint and cross claims as against it. Page 2 of 18 Accurate Electrical (“Accurate”), moves for summary judgment seeking to dismiss the complaint and cross claims as against it. By motion bearing sequence number 012, defendant Stark Carpet Corporation (“Stark”) moves for summary judgment seeking to dismiss the complaint and cross claims as against it. By motion bearing sequence number 013, defendant Bajro Musanovic d/b/a Bary Carpet Service (“Bary”) moves to strike the complaint as against it? For the reasons discussed below, each and every one of the motions is denied in part and granted in part. Background Plaintiffs own apartment 8A at 14 East 75" Street, New York County. In 2006, they hired he Saladino Group (“Saladino”) to design a renovation and RCT as the general contractor (Doc. 90-5, at 15-16, 26-27, 100-101, 158; Doc. 133 § 9; Doe, 136-3).? RCT then engaged Accurate as the subcontractor for electrical services (Doc. 134-3, at 25); there was a verbal subcontract agreement between RCT’s Ronko Caricic and Tzvi Schwartz, Accurate’s President (Doe, 134-6, at 24), Apparently Saladino retained Mario for painting services (Doc. 133 11; Doc. 134-4, at 18) and, according to Moses Rodriguez, Stark's project manager, Saladino entered into an agreement with Stark to provide carpeting (Doc. 110-4, at 8), Stark, in turn, hired Bary to remove existing carpeting and install the new carpeting (Doc. 110-4, at 25-26, 62-63; Doo. 134- 5, at 13), ? Like RTC, Bary also characterizes the motion as one for summary judgment, but the primary relief sought is dismissal ofthe complaint as a sanction for spoliation. 3 Unless otherwise indicated, all references are to the E-Filing document numbers. Page 3 of 18 By October 6, 2007, the renovations were nearly completed. It is undisputed that representatives and/or employees of RCT, Mario, and Bary were, at some point that day, within the apartment, That evening, at approximately 3:30 A.M. on October 7, 2006, a fire broke out and destroyed much of the apartment. ‘The various experts’ reports present competing theories of the fire's causation. The Fire Marshal indicated the fire originated in the electrical breaker panel of the laundry roomwhich tends to indicate that the cause of the fire was electrical (Doc, 94-1). The Bureau of Fire Investigation Fire Incident Report concluded that the “fire originated . . . in the laundry room . in the electrical breaker panel, in combustible materials (wiring/insulation), from heat from electricity” (Doc. 135-8). Plaintiffs retained Gerry J. Kelder as a cause and origin expert and Thomas Conlan as an electrical expert to conduct an investigation which was performed on October 13, 2006 (Doc. 136). Kelder’s report determined “that the fire originated at the floor area in front of the dryer in the laundry room” (Doc 135-10). While he stated that “the exact ignition source is undetermined,” Kelder offered three possible causes. “The cause in all probability was due to [1] a chemical reaction in the scrap carpeting or [2] possibly by a carelessly discarded cigarette or [3] other heat source” (Doc. 135-10). Most notably, Kelder’s report indicates that he “removed from the laundry room the burned pieces of carpet and related scraps” (Doc, 135-10). Ata subsequent deposition, Kelder testified that the “related scraps” were comprised of * In addition to Kelder an Conlan, fire investigators Edward Peknic and Jonathon LeBow were also present, Poknic was retained by AIG (Doc. 135-9) and LeBow was retained by Admiral Indemnity (Doe. 136-1). Page 4 of 18 -- “{cJharred debris, burned debris, unidentified debris” (Doc, 134-9, at 97). He removed the “debris” from the apartment and sent it to Upstate Lab Inc. for chemical composition analysis (Doc. 134-9, at 83-85). Upstate drafted a report and Tony Scala, its President and CEO, attested that the tests indicated the presence of ethylbenzene, which “is a colorless, flammable liquid that is found in paint,” xylene, “a colorless liquid that catches on fire easily. It is used as a cleaning agent, a thinner for paint, and in paints and varnishes,” and naphthalene, which “is used to make other chemicals such as dyes and resins” (Doc. 137-5). Scala also attests, “As is typical in these types of tests, the entire sample was used up in the testing. Therefore, there was nothing remaining of the sample to return to Mr. Kelder” (Doe. 134 $6). Conlon’s report indicated that “[t]he area of origin as established by others was to the laundry room” (Doc, 136). It concluded that the fire “was not caused by the electrical premises wiring, electrical equipment or electrical appliances” (Doc. 136, at 9). Peknic’s report concluded that the fire was “caused by a chemical reaction in carpet remnants” (Doc, 135-9), He indicated that “an hypothesis can be made carpet remnants placed on the floor of the Jaundry room after installation came in contact with solvents that created a chemical reaction igniting the combustible material” (Doc 135-9), LeBow’s report also concludes that the “[flire originated . . . in the laundry room[,] at floor level, in combustible materials (discarded carpet remnants, construction rubbish). Fire was caused by heat from a chemical reaction of the improperly discarded contractors’ materials” (Doe. 94-6). On or about October 27, 2010, restorative and cleanup measures were taken by nonparty Maxons Restorations. At that time, plaintiffs" counsel was Christopher St. Jeanos, Esq. (Doc. Page Sof 18 — 133 29). According to plaintiffs, St. Jeanos “took reasonable steps to preserve the scene as long as practicable and possible by requesting that the building superintendent refrain from allowing anyone to clean up the [fJire scene” and submit St. Jeanos’ affirmation to that effect (Doe. 133 ] 29; Doc. 135-6). According to St. Jeanos, the building manager, John Riordan, “authorized Maxons Restorations to perform a cleanup of the area where the fire was believed to have originated” despite St. Jeanos’ express instructions to the contrary (Doc 135-6 {| 6-9). The complaint alleges that “representatives of Rudd Realty . . . perform[ed] and/or caus[ed] to be performed certain cleaning and debris removal work to the [aJpartment, in the vicinity of the [flire’s origin, including, but not limited to, removing and disposing of potential evidence related to the origin and causation of the [fJire” (Doc. 4-1 162). In August 2007, plaintiffs commenced this action alleging the following causes of action: (1) negligence as against RCT; (2) negligent supervision as against RCT; (3) breach of contract as against RCT premised upon the alleged failure to ensure that the work was performed in a safe manner and in conformity with law; (4) res ipsa loquitor as aginst RCT; (5) negligerice as against Mario; (6) breach of contract as against Mario, alleging that plaintiffs were the intended beneficiaries of Mario's agreements; (7) res ipsa loquitor as against Mario; (8) negligence as against Stark; (9) breach of contract as against Stark, alleging that plaintiffs were the intended beneficiaries of Stark’s agreements; (10) res ipsa loquitor as against Stark; (11) negligence as against Bary; (12) breach of contract as against Bary, alleging that plaintiffs were the intended beneficiaries of Bary’s agreements (13) res ipsa loquitor as against Bary; (14) negligence as against Accurate; (15) breach of contract as against Accurate; (16) res ipsa loquitor as against Page 6 of 18 Accurate; and (17) negligent spoliation as against Rudd Realty Management Corp. (Doc. 4-1). By order dated March 20, 2009, this court granted, in part, plaintiffs’ motion to quash the subpoena served upon plaintiffs’ experts (Doc, 135-3). That order provided, “Given defendants’ inability to have the scene of the fire inspected, plaintiffs’ expert witnesses should be made available for examination as to their factual observations of the fire scene shortly after the incident and during their inspection of the premises, Inquiry shall be limited to the condition of the premises and what observations they made.” This matter was then joined with Pac, Indem. Ins. Co. v RCT Const. Corp.,109287/09, Admiral Indem, Co. v Bolton, 116719/07, and Am, Intl. Ins. Co. v RCT Inc., 106500/07 for the purposes of trial and discovery (Doc. 79). Now, despite the fact that the record before this court is riddled with questions of fact, RCT, Mario, Accurate, Stark, and Bary have each sought, among other things, summary judgment seeking to dismiss the complaint, Analysis 1. Motion Sequence Number 009 As against RCT, the complaint alleges four causes of action: (1) negligence; (2) negligent supervision; (3) breach of contract premised upon the alleged failure to ensure that the work was performed in a safe manner and in conformity with law; (4) and res ipsa loquitor. Asa preliminary matter, the court must note that res ipsa loquitor is not a cause of action (see NY PJ12:65, Comment; accord Abbott v Page Airways, Inc., 23 NY2d 502, 512 [1969]). It is.a theory of recovery by which to establish negligence (see Crawfordv City of New York, 53 AD3d 462, 465 [1st Dept 2008]. While the parties do not addresses this, the court must 5 By order dated July 15, 2009, this court dismissed the complaint and cross claims against Rudd Realty (Doc. 90-3). Page 7 of 18 —— nevertheless dismiss plaintiffs’ fourth cause of action because no such cause of action exists. However, paragraphs 57 through 62 of the complaint shall be deemed incorporated under plaintiffs’ first and second causes of action for negligence and negligent supervision (see Janotta v Tishman Speyer Props., Inc., 46 AD3d 297, 298 [Ist Dept 2007]). Notably, even if plaintiff had not specifically pleaded res ipsa loquitor, this would not “constitute[] a bar to the invocation of res ipsa loquitor where the facts warrant its application” (Weeden v Armor El. Co., 97 AD2d 197, 202 [2d Dept 1983]). Therefore, plaintifi’s fourth cause of action is dismissed in its entirety, but paragraphs 57 through 62 shall be deemed incorporated into the first and second causes of action. Before addressing the merits of RCT’s motion, the court must address, for the sake of clarity, a number of defects as a threshold matter, First, while RCT characterizes the motion as one “pursuant to CPLR §3212 granting summary judgment on the grounds of spoliation of evidence, or in the alternative, on the grounds that there exists no evidence that the acts or omissions of [RCT] were the proximate cause of plaintifis’ alleged injuries, and dismissing Plaintiffs’ Complaint and all cross-claims against [RCT}” (Doc. 90 1), because the primary telief sought is to strike the complaint for spoliation of evidence this court will treat this branch of the motion as one made pursuant to CPLR 3126 (3). The court will thereafter address the alternative relief sought as a motion for summary judgment seeking dismissal of the complaint and cross claims. Second, while RCT also seeks summary judgment dismissing all cross claims asserted against it, RCT has completely failed to identify which cross claims it is seeking summary judgment on, the nature of any such cross claim(s), and the identity of the cross- claiming party or parties. That branch of RCT’s motion is therefore denied. Page 8 of 18 Essentially, RCT’s argument is that the complaint should dismissed as against it because “plaintiffs destroyed key physical evidence; the ‘burned pieces of carpet” and ‘related scraps’ removed during Mr. Kelder’s on-site investigation, thereby prejudicing defendant, RCT, of the appropriate means to confront the alleged claims and defendant itself” (Doc. 90 $26) “(T}the determination of an appropriate sanction pursuant to CPLR 3126 lies in the trial court’s discretion and should not be set aside absent a clear abuse of discretion” (De Socio v 136 E, 56th St, Owners, Inc, 74 AD3d 606, 607 [1st Dept 2010]). Such sanctions range from the imposition of costs, preclusion of evidence, or entitlement to an appropriate jury charge. Intentional or even negligent disposal of “crucial items of evidence” could warrant the striking of a pleading (Baldwin v Gerard Ave., LLC, 58 AD3d 484, 485 [1st Dept 2010], quoting Kirkland v New York City Hous. Auth, 236 AD24 170, 173 [Ist Dept 1977). “In gauging the severity ofthe sanction to impose on a spoliator, the court must examine the extent that the spoliation of the evidence may prejudice a party and whethera dismissal will be necessary as a matter of elementary fairness” (PJI 1:90, comment). In opposition, plaintiffs argue that defendants are not entitled to the remedy of striking the complaint because the order dated March 20, 2009 allowed defendants to examine plaintiffs’ experts as the remedy for any alleged prejudice defendants would have suffered by plaintiff's alleged spoliation (Doc. 133 43), That order was an attempt to provide defendants with an opportunity to assess the experts’ factual observations for themselves. Those experts were the only persons with first hand personal knowledge of the state of the apartment before Maxon. performed restorative services and before the physical evidence, which is directly relevant to the issue of the fire's causation, was consumed by the destructive testing performed by Upstate, Page 9 of 18 Defendants were certainly entitled to at least that much because they were deprived of the opportunity to independently assess the evidence and to fully assess the premises in the post- accident pre-restoration condition. However, contrary to plaintiffs’ contention, this court was by no means prescribing a remedy, let alone the sofe remedy as plaintiffs would argue, for the spoliation, Nevertheless, this court finds that striking the complaint would be too harsh a sanction here because the record before this court does not indicate that plaintiffs conduct constituted intentional spoliation, Whether plaintiffs’ took all reasonable measures to ensure that the evidence was not spoliated is unclear, but plaintiffs’ submission of the St. Jeanos affirmation tends to negate the any allegation that the restoration was attributable to any negligence on plaintiffs’ part, let alone intentional conduct. The court appreciates how defendants’ ability to defend against the claims have been impaired, but a trier of fact should determine whether plaintiffs have met their burden. Instead, the court finds that a proper balance would be found by granting RCT’s motion only to the extent that defendants shall be entitled to an appropriate jury instruction, to be crafted by the trial judge a the time of trial, be it an adverse inference charge, or otherwise, The remainder of RCT’s motion is flawed, It seeks summary judgment dismissing the complaint and cross claims as against it because plaintiffS and their experts “have failed to establish a specific cause of the subject fire” and because “plaintifis["] experts fail to articulate the exact cause of the subject fire” and “failed to establish a specific cause of the subject fire” (Doc. 90 §¥] 40, 47). It is axiomatic that as the movant, RTC has the initial burden of demonstrating entitlement to judgement as a matter of law ~ nor plaintiff (see Zuckerman v City Page 10 of 18 of New York, 49 NY2d $57, 562 [1980]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). RCT’s attempt to place the initial burden onto plaintiffs, who have not moved for summary judgment, is, simply, contrary to law, Notwithstanding RCT"s failure to shift the burden to plaintiffs, plaintiffs have nevertheless certainly pointed to questions of fact by establishing that RCT performed services on the premises on October 6, 2006, the day before the incident, Plaintiff Jeffrey Bolton also repeatedly and unambiguously testified that RCT was the general contractor (Doc. 90-5, at 26-27; Doc. 4-1 ff] 12-13). Considering this in light of the theory of res ipsa loquitor, RCT has failed to meet it prima facie burden as the movant on this motion for summary,Judgment and, therefore, this branch of RCT’s motion must be denied, T. Motion Sequence Number 010 As against Mario, the complaint alleges three causes of action: (1) negligence; (2) breach of contract, alleging that plaintiffs were the intended beneficiaries of Mario’s agreements (Doc, 4-1 49 75-80); and (3) res ipsa loquitor.* Mario moves for summary judgment seeking to dismiss the complaint and cross claims as against it. Chatman’s testified that Mario’s agents or employees did in fact paint the laundry room on October 6, 2006 (Doe, 141-2, 47-58). Upstate’s report indicates that chemicals commonly used in paint thinners were found within the debris tested by Upstate (Doc. 139 {¥ 89-90). Mario points to the testimony of Ivan Chatman, of Saladino, and Mariana Kazmierezak to establish that Mario “left the site by late morning or eatly afternoon the day of the fire” (Doc. 94-7; Doc 94-8). ‘Plaintiffs’ seventh cause of action also alleges res ipsa loquitor against Mario. For the Feasons discussed supra (see Point I, supra), the seventh cause of action is dismissed and Paragraphs 81 through 86 of the complaint shall be deemed incorporated under plaintiffs" fifth cause of action for negligence against Mario. Page 11 of 18 ~ ee Whether this is true remains to be seen and, in any event, does not establish Mario’s burden. Even assuming it was true, it would not, contrary to Mario’s contention (Doc, 93 20), entitle Mario to judgment as a matter of law because there are questions of fact with respect to the cause of ignition which may or may not be attributable, in whole or in part to Mario. Even if there were persons other than those within the contro] or supervision of Mario who left the premises after Mario's employee(s)/agent(s) on October 6, 2006, there may have been material, including paint cans, paint thinner, or other apparatus that somehow contributed to the cause of the ignition or exacerbated the fire thereafter This much is readily inferable by Upstate's report and the Scala affidavit which identify and explain the composition of the debris left in the laundry room, where the experts conclude the fire began. ‘Whether, as Mario claims, it could not have caused or contributed to the fire because it was using latex water-based paint, which is not flammable, or because all of Mario's paint cans were closed, remains to be seen (Doc, 94-7, at 21, 35; Doc. 94-10, at 106) because there are indications that Mario may have used flammable oil-based materials and thinner (Doc. 94-7, at 80, 84, 158). That branch of Mario’s motion which seeks to dismiss the breach of contract cause of action because it did not breach its contract with Saladino is also denied (Doc. 93 29). Mario has not demonstrated that its conduct did not constitute a breach nor that plaintiffs were not the intended third-party beneficiaries of the contract. ‘Therefore, Mario's motion is denied except to the extent that Mario too shall be entitled to an appropriate jury instruction, be it an appropriate charge drafted by the trial judge, be it an adverse inference charge, or otherwise. Page 12 of 18 ve = Ti. Motion Sequence Number 011 As against Accurate, the complaint alleges three causes of action: (1) negligence; (2) breach of contract; and (3) res ipsa loquitor.” Accurate moves for summary judgment seeking to dismiss the complaint and cross claims asserted against it (Doc. 97). Accurate attempts to support its motion by pointing to those portions of the experts reports that indicate that the fire was not caused by electrical issues (i.e. Conlan’s report which states that the fire was “not caused by the electrical premises wiring, electrical equipment or electrical appliances” (Doc, 100-9, at 5, 8-9), Kelder’s (Doc. 100-8), Peknic’s (Doc. 101-5), and LeBow’s (Doc. 101-6, at 7)). As discussed supra, the reports are conflicting, inconclusive, and certainly lend themselves to varying interpretations. Equally unavailing is the fact that Caricic’s testified that Accurate was not in the apartment at least one week before the incident and that only Mario, RCT, and Bary were present the day of the incident (Doc. 102-4, at 215-216). By no means does this vitiate the possibility of Accurate’s performance causing or contributing to the fire because there is no dispute that Accurate was the’ only electrical contractor retained for the project. Schwartz, however, is not a licensed electrician (Doc, 134-3, at 86) and admittedly learned on the job (Doc. 134-3, at 192) and could not recall whether Accurate performed work in the laundry room (Doe. 134-3, at 61). He also testified that Accurate never sent a licensed electrician to the apartment (Doc, 134-3, at 101), and that instead, Schwartz would confer with his second cousin after he performed 7 Plaintiffs’ sixteenth cause of action also alleges res ipsa loquitor against Accurate. For the reasons discussed supra (see Point I, supra), the sixteenth cause of action is dismissed and paragraphs 152 through 157 of the complaint shall be deemed incorporated under plaintiffs" fourteenth cause of action for negligence against Accurate. Page 13 of 18 “— electrical work (Doc. 134-3, at 174-189), Considering this in light of the fact that the Fire Marshal indicated that the fire originated in the electrical breaker panel of the laundry room which tends to indicate that the cause of the fire was electrical (Doc, 94-1) coupled with the fact that the Bureau of Fire Investigation Fire Incident Report concluded that the “fire originated . . . in the laundry room . .. in the electrical breaker panel, in combustible materials (wiring/insulation), from heat from electricity” (Doc. 135-8), Accurate’s motion seeking to dismiss the complaint must be denied. The next branch’of Accurate’s motion seeks summary judgment dismissing the cross claims for contractual indemnification, common Jaw indemnification, and contribution asserted by Stark (Doc. 137-2 f 13-17), RCT (Doc. 90-2 $f 34-35), and Mario (Doc. 93-2 Ff 65-67) against Accurate; it also seeks summary judgment dismissing Bary’s claims for common law indemnification and contribution (Doc. 137-3 13-16). Accurate arguies that it never entered into an agreement for indemnification with Stark, RCT, nor Mario and, therefore, those contractual indemnification claims must be dismissed. Neither Stark, RCT, nor Mario have submitted papers in opposition to this motion. However, the record here only indicates one agreement entered into by Accurate — a verbal subcontract agreement between RCT and Schwartz, Accurate’s President, the scope of which cannot be determined at this juncture (Doc. 134-6, at 24), Therefore, Stark and Mario's cross claims for contractual indemnification as against Accurate are dismissed. Accurate also argues that each of the claims for common law indemnification must fail because “a party sued for its own wrongdoing rather than on a theory of vicarious liability cannot assert a claim for common-law indemnity. That [pJarty’s sole remedy is contribution” (Doe. 99, Page 14 of 18 aa oe —- at 12). As to this branch of its motion, Accurate is correct and, accordingly, the claims and cross claims for common law indemnification asserted by defendants Stark, RCT, Mario, and Bary as against Accurate must be dismissed (see Esteva v Nash, 55 AD3d 474, 475 [1st Dept 2008]), However, that branch of Accurate’s motion seeking to dismiss the cross claims for contribution must be denied for the reasons indicated supra. Iv. Motion Sequence Number 012 As against Stark, the complaint alleges three causes of action: (1) negligence; (2) breach of contract; and (3) res ipsa loquitor.* Stark moves for summary judgment seeking to dismiss the complaint as against it and all cross claims, Like RCT, Stark appears to argue for summary judgment on the ground of spoliation, To that extent, Stark's “motion for summary judgment,” which should actually be characterized as a motion to dismiss the complaint as a sanction for spoliation pursuant to CPLR 3126 (c), is denied for the same reasons that branch of RCT’s motion is denied (see Point I, supra). Stark argues that “failure to prove what actually caused an alleged incident, in situation [sic] where there could be more than one cause, is fatal to plaintiff's claim” (Doc. 110 4 26). This is unpersuasive because the issue on this motion for summary judgment is not whether plaintiffs’ claim is ultimately likely to succeed at trial, it is whether Stark, in the first instance, has, as the movant, demonstrated entitlement to judgment as a matter of law by proving that there is no triable issue of fact regarding their alleged liability. Stark has not. Aside from Stark's * Plaintiffs’ tenth cause of action also alleges res ipsa loquitor against Stark. For the reasons discussed supra (see Point I, supra), the tenth cause of action is dismissed and paragraphs 105 through 110 of the complaint shall be deemed incorporated under plaintiffs? eighth cause of action for negligence against Stark. Page 15 of 18 improper attempt to place the initial burden upon plaintiffS, an issue of fact exists over the entity or entities who were responsible for placing the debris in the laundry room, There are indications that Bary installed carpeting at the apartment on the day of the fire (Doc. 110-4, at 52-63). Also, despite Stark’s conclusory and self-serving assertions that Bary was an independent contractor, the extent of Stark’s control and/or supervision over their conduct has not been determined as a matter of law (Doc. 110-4, at 105, 114; Doc. 154-6). Because carpeting debris or scraps may have caused the fire, and given the indications that both Bary and Stark may have shared the responsibility for removing the same, issues of fact preclude summary judgment, In fact, Stark concedes that the “experts make it abundantly clear that the fire could have resulted from numerous possible causes” (Doc. 110 27). Causation cannot be determined on the extent record and Stark’s motion for summary judgment must be denied, Vv. Motion Sequence Number 013 As against Bary, the complaint alleges three causes of action: (1) negligence; (2) breach of contract as against Bary, alleging that plaintiffs were the intended beneficiaries of Bary’s agreements; and (3) res ipsa loquitor.'° Bary’s motion is entirely premised “on the grounds of spoliation of evidence” (Doc. 1129 2). Like RCT and Stark, Bary’s “motion for summary judgment” should actually have been made pursuant to CPLR 3126 (c). Bary’s motion is denied ° While Stark would have this court believe that Bary was hired as an independent contractor, Bary merely claims that it “was engaged to install carpet” which is vague enough to fall outside the purview of status as an independent contractor (Doc. 112 4 8). °° Plaintiffs? twelfth cause of action also alleges res ipsa loquitor against Bary. For the reasons discussed supra (see Point I, supra), the twelfth cause of action is dismissed and paragraphs 123 through 128 of the complaint shall be deemed incorporated under plaintiffs’ eleventh cause of action for negligence against Bary. Page 16 of 18 for the same reasons that the similarly-premised branches of the RCT and Stark motions are denied (see Points I and IV, supra). To the extent that Bary's motion could be construed as actually moving for summary judgment, the motion is denied for the reasons stated in Point IV, supra. Among other questions of fact, the record does not conclusively resolve which entity placed the debris, carpet scraps, or other material which may have ignited the fire, in the laundry room. Considering this in light of the fact that Bary’s Bajro Musanovic was at the apartment on October 6, 2006 and allegedly spent hours installing carpeting on the date of the incident (Doc. 158-5, at 40-41, 108-109; Doc. 110-4, at 52-62) and may have left the remaining carpeting in the apartment (Doc. 158-5, at 173), and did not know exactly what he had left behind (Doc. 158-5, at 204), Bary’s motion must be denied. Accordingly, it is ORDERED that motions bearing sequence numbers 009, 010, 011, 012 and 013 are only granted to the following extent, and otherwise denied: (1) defendants shall be entitled to an appropriate jury instruction, to be crafted by the trial judge as the time of trial, be it an adverse inference charge, or otherwise; to address the fact that they were unable to inspect certain evidence; and (2) the claims and cross claims for common law indemnification asserted by defendants Stark, RCT, Mario, and Bary against Accurate are dismissed; and (3) the cross claims for contractual indemnification asserted by defendants Stark and Mario against Accurate are dismissed; and it is further ORDERED that the complaint’s seventh, tenth, twelfth, and sixteenth causes of action, all of which purport to state a claim for res ipsa loquitor, are dismissed, but the allegations set forth therein, shall be deemed incorporated under the first, second, fifth, eighth, eleventh, and Page 17 of 18 fourteenth causes of action sounding in negligence in accordance with the manner explained herein; and it is further ORDERED that the movants shall serve a copy of this order on all parties, third-parties, and upon the Clerks of Trial Support and Motion Support; and itis further ORDERED that the parties are directed to appear in Mediation-I as previously scheduled on January 21, 2010 at 10:00 a.m. ‘This constitutes the decision and order Dated: January 10, 2011 ‘New York, New York 2011_108271_2007_pms_009_010_011_012_0130M4S1) Page 18 of 18