Opinion
23320/2013E
04-05-2019
The ESTATE OF Hazel Syriah MARTINEZ, deceased, et al., Plaintiff, v. 977 GRANT TOWERS LLC, et al., Defendant.
Counsel for Plaintiffs: Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman, & Mackauf (Howard S. Hershennorn, Esq.). Counsel for 977 Grant: Haworth, Barber & Gerstman, LLC (Scott Haworth, Esq.) Counsel for Alboro: Litchfield & Cavo, LLP (Christopher A. Long, Esq).
Counsel for Plaintiffs: Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman, & Mackauf (Howard S. Hershennorn, Esq.).
Counsel for 977 Grant: Haworth, Barber & Gerstman, LLC (Scott Haworth, Esq.)
Counsel for Alboro: Litchfield & Cavo, LLP (Christopher A. Long, Esq).
Mary Ann Brigantti, J.
Upon the foregoing papers, the defendant/third party plaintiff 977 Grant Towers LLC ("977 Grant") moves for summary judgment, dismissing the complaint and all cross-claims or counter-claimed asserted against it pursuant to CPLR 3212.
Plaintiffs the Estate of Hazel Syriah Martinez, deceased, by co-administrators Iris Martinez and Shaun Martinez, Gabrial Martinez, Solomon Martinez, and Lailah Martinez, by their parents and natural guardians, Iris Martinez and Shaun Martinez, Haile Martinez, by her parents and natural guardians, Ruth Scheker and Shaun Martinez, and Iris Martinez, Ruth Scheker, and Shaun Martinez, individually (collectively, "Plaintiffs") oppose the motion and cross-move for an order pursuant to CPLR 3126, for sanctions against the defendants based upon their spoliation of evidence, including precluding defendants 977 Grant and Alboro Maintenance Company of NY, Inc. ("Alboro")(collectively with 977 Grant, "Defendants") from offering any evidence on the issue of the cause of the subject fire and resolving the issue of the cause of the fire in favor of Plaintiffs, and pursuant to CPLR 3212(c), for partial summary judgment in Plaintiffs' favor, holding that the range installed by Defendants' employee in Plaintiffs' apartment was the cause of the subject fire. Defendants oppose the cross-motion.
I. Background
This matter arises out of a fire that occurred on March 17, 2013, in the kitchen of apartment 4B inside of the building located at 977 Grant Avenue in the Bronx, New York (the "Building"). At the time of the fire, the Building was owned by 977 Grant. Plaintiff Shaun Martinez ("Shaun") and Ruth Scheker ("Scheker") were the tenants of record. They resided in the subject two-bedroom residence with Shaun's wife, plaintiff Iris Martinez ("Iris") and their six children. Hazel Syriah Martinez, one of the children, died as a result of the fire.
Plaintiffs allege that this fire started because Defendants and/or their employees negligently installed a stove in the apartment's kitchen. They specifically contend that the stove was installed in such a manner that compromised, pinched or compressed its power cord, which ultimately led to the fire. Approximately two months before the incident, Fernando Ferreira ("Ferreira"), then the superintendent of the Building, installed the subject stove in the apartment. After the fire, personnel from the New York City Fire Department ("FDNY") performed an investigation and prepared a fire incident report. The report lists the cause of the fire as "not fully ascertained - power cord - oven." Fire Marshal Sean O'Connor ("O'Connor"), who certified the report, explained at his examination before trial that this notation meant that he "couldn't fully say 100 percent certain that it was the power cord that started the fire." He wrote the words "power cord-oven" in the report because "to the best that [he] could determine, based on where the fire appeared to have started, that was the only electrical source in the area. The stove was relatively new, it was the only thing that had been changed in the apartment in the last few months prior to the fire."
977 Grant now moves for summary judgment, asserting that Plaintiffs cannot demonstrate that the subject stove was negligently installed or that 977 Grant failed to maintain the property in a reasonably safe condition. Movant contends that evidence here establishes that the cause of the fire is "undetermined," but notwithstanding this determination, the subject stove and power cord could not have caused this fire. 977 Grant asserts that when Ferriera installed the stove, it was brand new. Following the installation, none of the apartment residents ever complained about the stove's operation to 977 Grant or any of its agents, and Plaintiffs did not identify anything wrong with the stove. 977 Grant therefore contends that it had no notice, actual or constructive, of any allegedly defective condition. Movants note that plaintiffs Scheker, Shaun, and Iris each confirmed that they did not experience any problems with the stove after it was installed. Accordingly, 977 Grant asserts that it had no notice of a defective condition and therefore is entitled to judgment as a matter of law.
Assuming arguendo that 977 Grant had notice of an allegedly dangerous condition on the property, the movant contends that Plaintiffs' inability to identify the origin and cause of this fire is fatal to their claims. 977 Grant notes that O'Connor conceded that he could not confirm whether the stove was the cause of the fire, and thus he had to list the cause as "undetermined" in accordance with National Fire Protection Association ("NFPA") 921 guidelines. 977 Grant asserts that O'Connor failed to eliminate all other potential causes, as required by NFPA guidelines, and he also conceded that he made the determination in his report without knowing whether or not the stove's power cord was energized.
977 Grant supports their motion with a sworn report from Samuel G. Sudler, III, P.E., IntPE, C.F.E.I., C.V.F.I. Dr. Sudler inspected the evidence that was removed from the subject apartment including electrical appliances and an unknown appliance cord found in the kitchen area. He also performed a series of tests upon exemplar gas stoves of the same make and model as the stove that was inside of Plaintiffs' apartment. Dr. Sudler concludes that the cause of the subject fire is "undetermined," which is "contrary to [P]laintiffs' allegation that the power cord of the stove is the origin and ignition source of the" fire. Dr. Sudler notes that the other appliances in the kitchen all had evidence of electrical arcing and shorting in their respective power cords, as well as other internal electrical activity, thus they all could not be ruled out as potential causes of the fire. With respect to the oven, however, Dr. Sudler examined two exemplar models and conducted a test to determine if the stove could draw a current while not being used. He asserts that a draw of electricity is necessary to establish a high resistance connection failure with the power cord. Dr. Sudler states that the exemplar models had no internal clock or light bulb, and when the unit was turned off—as Plaintiffs here conceded that it was—there was no current draw, and therefore there was not enough energy to create a fire. Dr. Sudler refers to the principle of "arc mapping" that is used when analyzing data collected from scene inspection and evidence examination to determine the cause of a fire. He states that the "arc map" of the scene that was created after this fire, noted evidence of "arcing" at the other appliances including within the power cord for the stove. He further states that due to "series arcing," wherein "stranded power supply cords and extension cords are sometimes subject to abuse, leading to breakage and separation of conductor strands ... A stranded cord will overheat if strands are broken due to excessive bending and current is being carried by the last remaining strand." As a result, the "Arc Fault Interrupter" (AFCI) device was created to attempt to reduce or eliminate fires caused by damaged power records resulting in electrical arcing or shorting causing subsequent fires. Accordingly, Dr. Sudler opines, all of the appliance cords, except for the power cord that had insufficient energy to start a fire, "cannot be eliminated as the cause of this fire." 977 Grant argues that, since the fire origin remains unknown, and since no mode or method of failure can be established or ignition sequence determined, Plaintiffs cannot set forth a prima facie case against 977 Grant.
Plaintiffs oppose the motion and cross-move for spoliation sanctions against Defendants, and for partial summary judgment in Plaintiffs' favor, holding that the stove/range installed in the apartment was the cause of the fire. In opposition to 977 Grant's summary judgment motion, Plaintiffs contend that the movant failed to carry its initial burden of proof. Specifically, Plaintiffs assert that 977 Grant only predicated their motion upon its alleged lack of actual or constructive notice of the dangerous condition, but does not attempt to refute Plaintiffs' allegation that Ferriera created the condition that led to the fire by negligently installing the stove. Plaintiffs note that Ferreira admitted that he did not read any instructions before installing the stove and he never inspected the power cord at any time, and he testified that he did not know where the power cord was connected to the stove, which would make it likely that he was not mindful of ensuring that the stove was not bent or impinged when it was installed. Plaintiffs further note that the cord was located behind the oven/range, so any visible damage would have been hidden from view. Since 977 Grant failed to affirmatively demonstrate that the oven was undamaged and properly installed, Plaintiffs assert that movant failed to carry its prima facie summary judgment burden.
Plaintiffs further assert that 977 Grant's expert, Dr. Sudler, has material deficiencies in his affidavit and fails to carry 977 Grant's initial burden of demonstrating that Plaintiffs are unable to demonstrate the cause of this fire. Plaintiffs assert that Dr. Sudler never attempts to make an adequate origin determination, and he ignores the testimony of O'Connor. O'Connor performed the actual investigation after the fire, examined the cord in its intact condition, and concluded that the fire originated in a specific location within the kitchen. Defendants have not presented any evidence challenging that finding. Plaintiffs assert that Dr. Sudler, however, assumes that the fire could have originated from anywhere in the apartment. Dr. Sudler also relies in part upon a "common scribe map" of the kitchen however there is no indication as to who created the map, and in any event, within days of the fire the apartment was materially altered when defendants' representatives unilaterally removed evidence without affording Plaintiffs' prior notice. Plaintiffs thus contend that Dr. Sudler's opinion is without a proper factual foundation. Plaintiffs note that Dr. Sudler's tests on exemplars of the subject range and power cord are irrelevant, since those tests were not conducted upon ranges with damaged power cords, as alleged by Plaintiffs. Plaintiffs further assert that O'Connor explained at his examination before trial that "not fully ascertained" actually meant that O'Connor knew that the cause of the fire was the power cord, but he could not ascertain precisely how the cord or the oven caused this fire. Since O'Connor expressed a degree of confidence in his conclusions, Plaintiffs contend that his opinion is sufficient as to causation between the power cord of the oven and this fire.
Assuming that 977 Grant met its initial burden, Plaintiffs assert that the affidavit from their expert certified fire investigator Michael Schulz raises a triable issue of fact as to causation. Mr. Schulz explains that a damaged power cord, as claimed by Plaintiffs, causes insulation surrounding the wiring to be compromised and eventually create a small electrical arc. The electrical arc would not be sufficient to trip the circuit breaker, but would have burned the wire strands inside of the cord, and eventually led to a circumstance where enough power and heat was generated to exceed the ignition temperature of the combustible materials located around the cord. Mr. Shultz states that the impingement damage that he proposed would occur regardless of whether the range was turned on or off, so long as the range was plugged in. He asserts that "the failure at issue here was a series of high resistance path that went across the damaged area of the power cord, not one that went into the range itself," and he notes that Dr. Sudler's report does not address this possibility. Plaintiffs assert that the opinions of their expert are sufficient to refute the opinions of Dr. Sudler and thus raise an issue of fact precluding the entry of summary judgment in 977 Grant's favor.
Plaintiffs further contend that, if there are any deficiencies in their proof on the issue of whether the power cord was the cause of the fire, it is only because Defendants negligently or deliberately lost or destroyed a significant section of the range's power cord. When O'Connor performed his initial investigation, photographs were taken of the rear of the oven which depicted the power cord extending out several feet. Plaintiffs assert that Defendants took complete control over the apartment once the first responders completed their work, as superintendent Ferreira testified that the apartment was locked and he was the only one who had the key, and he was instructed by owner Michael Friedman not to let anyone inside including the tenants. While some members of the family accessed the apartment to take personal items, none of them took anything from the kitchen. Plaintiffs assert that the next time Ferreira allowed anyone into the Building was on March 21, 2013, when Defendants' attorneys and experts unilaterally inspected the apartment and extracted physical evidence including the subject range and power cord. On April 1, 2013, Plaintiffs' representatives sent 977 Grant a letter alerting them of future litigation and advising it to preserve evidence including the stove and power cord. When the evidence in the apartment was made available for inspection by Plaintiffs' experts, the power cord that had been extending from the rear of the oven was in a materially different condition in that it was significantly shorter, and it appeared that a significant portion of it had been lost. Plaintiffs assert that the fact that the only evidence seized from the apartment that was lost was the power cord identified in the FDNY report as a potential cause of the fire, and this creates a strong inference that Defendants acted in bad faith or were grossly negligent in failing to preserve it. Given that they have been prejudiced by the loss of this evidence, Plaintiff requests as a spoliation sanction that they be granted summary judgment on the issue of causation and an order precluding Defendants from contesting or challenging the Fire Marshal's determination that the power cord was the cause of the subject fire.
In further support of its motion, 977 Grant asserts that it satisfied its summary judgment burden, and it submits a supplemental report from Dr. Sudler refuting Plaintiffs' contentions and stating, among other things, that simply installing the oven and plugging it in could not have damaged the subject power cord. 977 Grant further asserts that O'Connor's opinion as to the cause of the fire in unsupported and unexplained as he admitted that there was no evidence that the stove was plugged in, and he did not see any evidence of electrical activity within the power cord itself. 977 Grant asserts that their expert made no assumption as to the origin of the fire, but simply performed a forensic examination of the stove and found no current draw and no way that the cord could have caused the fire. 977 Grant argues that the only non-speculative conclusion here is that there is no competent evidence of an ignition source in the area of origin proffered by Plaintiffs, meaning that the cause of the fire remains "undetermined." 977 Grant also notes that a resident of the apartment admitted that he used the toaster oven the night of the fire and it claims that the toaster oven was plugged in that night. 977 Grant further contends that nothing in the testimony from superintended Ferreira or Michael Friedman indicates that the power cord was pinched or compromised when it was installed.
On the issue of spoliation, 977 Grant argues that such sanctions are unwarranted here because, as O'Connor explained at his examination before trial, the scene of the fire was disturbed by fire officials and other agencies prior to the appearance of 977 Grant representative. The other officials were performing various tasks on the site, moving appliances, and throwing items out of the apartment windows during the post-fire suppression and investigation process. 977 Grant also states that it was not notified of Plaintiffs' legal representation until April 3, 2013. 977 Grant further asserts that this is the second time that Plaintiffs have attempted to impose spoliation sanctions. The last time they made such a request, this Court permitted Plaintiffs leave to depose Defendants' five defense experts. To date, however, Plaintiffs have made no effort to conduct those depositions, and 977 Grant argues that there is no additional factual basis to impose spoliation sanctions. Furthermore, 977 Grant asserts that it took reasonable steps to preserve the crucial evidence and prevent unauthorized access to the apartment. In fact, there were instances when the plaintiffs themselves accessed the apartment to remove items, and plaintiff Shecker even accessed the locked apartment using a bolt cutter. 977 Grant notes that its experts properly removed and sequestered the evidence, and even if something was altered or discarded, "the timeframe and identity of who did so is and will remain hopelessly unknown..." Co-Defendant Alboro also opposes the cross-motion for spoliation sanctions and argues, among other things, that there is no evidence that Alboro was on notice of litigation, and Alboro and its representatives did not visit the apartment until the May 2, 2013 site inspection that occurred when representatives from all parties were present. Alboro argues that Plaintiffs are improperly attempting to lump in Alboro with 977 Grant in their cross-motion, however Alboro never removed anything from the apartment, never hired causation experts, and do not seek to use the loss of the power cord to their advantage in this litigation.
Plaintiffs' contentions and exhibits submitted in reply will be addressed infra if necessary.
II. Applicable Law and Analysis
A. 977 Grant's Motion for Summary Judgment
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make 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 from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738 [1993] ).
A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk (see Broderick v. RY Management Co., Inc ., 71 AD3d 144 [1st Dept. 2009] ; citing Basso v. Miller , 40 NY2d 233, 241 [1976] ). On a motion for summary judgment under these circumstances, the burden is on the defendant landowner to demonstrate, prima facie, that it did not create, and lacked actual or constructive notice of the dangerous or hazardous condition (see Giuffrida v. Metro North Commuter R. Co. , 279 AD2d 403 [1st Dept. 2001] ).
In this matter, although 977 Grant established that it lacked actual or constructive notice of any hazardous condition involving the stove or power cord, it failed to carry its burden of demonstrating, prima facie , that it did not create the condition that ultimately led to this fire (see, e.g., Rodriguez v. Board of Educ. of the City of New York , 107 AD3d 651, 652 [1st Dept. 2013] ). Plaintiffs' bill of particulars alleges, among other things, that the defendant was negligent in "negligently installing a stove/oven in the plaintiffs' apartment," "allowing a fire to originate in the ‘electrical appliance cord for oven,’ " "installing a stove/oven that was defective and/or had preexisting damage; damaging the stove/oven during the installation process," "creating a condition in which the ‘power cord oven’ of the subject stove/oven created the fire" and "permitting and allowing the electrical cord from the stove/oven to become pinched, cracked, frayed and damaged; causing, permitting, and allowing an arc fault to occur in the electrical cord from the stove/oven" leading to the fire. 977 Grant's motion fails to conclusively establish, as a matter of law, that the subject stove was properly installed or that the subject power cord was undamaged during the installation or was otherwise free of any defects. Superintendent Ferreira, the individual who installed the stove, testified that he never inspected the power cord (Ferreira EBT at 177). Ferreira, who had prior knowledge of the Fire Marshal's conclusions at the time of his deposition (id. at 119-120), further testified that he did not even plug in the stove at the time of its installation, because "all of the outlets were taken" (id. at 165). Ferreira claimed that after he hooked the stove up to the gas line and pushed the stove towards the kitchen wall, (id. at 178), but he simply left the power cord "over the top" of the stove (id. at 180). Ferreira explained that he "never tested the stove because it was new" (id. at 166). Notably, Ferreira's claim that he did not plug the stove in are expressly refuted by plaintiffs Iris and Ruth, both of whom were present during the installation process. Iris testified that Ferreira indeed plugged the stove into an outlet located over the sink, and it was never removed after the stove was installed (Iris EBT at 86). Iris testified that Ferreira never told her that she needed to plug in the oven (id. ). Ruth confirmed that after Ferreira finished installing the stove, she saw that it was plugged into the outlet above the sink (Ruth EBT at 83). Accordingly, on this record, 977 Grant failed to eliminate all triable issues of fact as to whether it created the allegedly hazardous condition, as it failed to affirmatively establish that the stove at issue was properly installed and that the cord itself was free of any defects, and could not have caused or contributed to this fire (see generally Westbrook v. WR Activities-Cabrera Markets , 5 AD3d 69 [1st Dept. 2004] ; DeMatteis v. Sears, Roebuck and Co. , 11 AD3d 207 [1st Dept. 2004] ). The fact that Plaintiffs had no issue with the stove over two months may go to the issue of actual or constructive notice, but same is irrelevant where defendant-movant failed to show that it did not create the hazardous condition (see Rajkumar v. Budd Contracting Corp. , 125 AD3d 446 [1st Dept. 2015] ).
In the alternative, 977 Grant moves for summary judgment on the ground that Plaintiff is unable to establish the origin or cause of the subject fire. The Court finds that 977 Grant has failed to carry their initial burden with respect to this issue as well, because it failed to adequately refute Plaintiffs' contention that the subject power cord was improperly installed in a pinched or compromised condition, so as to lead to a fire at the premises.
977 Grant argues that Fire Marshal O'Connor conceded that he could not confirm that the stove's power cord was the cause of the fire, that he made determinations as to the fire's origin without knowing if the power cord was energized, and that he failed to eliminate other sources in the apartment as the potential cause of the fire, as required by National Fire Protection Association guideline 921 ("NFPA 921"), and he failed to take into account that the stove lacked a power source such as an internal clock or light which could have generated a current within the cord. Initially, the Court finds that O'Connor's report and accompanying testimony provide a sufficient basis for his contention that the stove power cord at issue was a contributing factor in this fire and his alleged concessions do not, themselves, establish that Plaintiffs are unable to identify the origin and cause of the fire. As noted above, after the fire, O'Connor performed an investigation and although he could not state with complete certainty the cause of the fire, he wrote in his report "power-cord -oven" as a cause because "to the best that [he] could determine, based on where the fire appeared to have started, that was the only electrical source in the area. The stove was relatively new, it was the only thing that had been changed in the apartment in the last few months prior to the fire" (O'Connor EBT at 134-35). O'Connor further explained that he knew the cause of the fire was the power cord for the oven, but how precisely that cord caused the fire, could not be fully ascertained (id. at 271). O'Connor testified that based upon his review of the scene as well as burn patterns in the kitchen, the fire originated approximately two feet from the south wall and approximately one foot from the floor level (id. at 273), before extending to "combustible material, aluminum/plastic-natural gas meter above the kitchen sink at ceiling level" (id. at 275). Once he determined where the fire originated, O'Connor found that the only ignition source in that area was the stove. He specifically noted that the toaster, refrigerator, the microwave, and other appliances were not located in that area of the kitchen (id. at 278-79). Accordingly, and contrary to the contentions of 977 Grant and its expert, O'Connor specifically took into account whether there were other possible ignition sources before completing his report. Therefore, while the cause of the fire could not be ascertained with "complete precision," and while he did not know at the time whether or not the power cord was energized, O'Connor's theory was sufficiently based upon his investigation of the scene and the location of the appliances inside of the kitchen (see, e.g., Marsden v. EMLT Realty Corp. , 304 AD2d 417 [1st Dept. 2003] ).
977 Grant's expert Dr. Sudler, who never inspected the apartment, opines that the oven's power cord could not have caused the fire, because this particular brand of oven did not draw an electrical current when it was plugged in and not in use. Dr. Sudler thus concludes that the origin of this fire cannot be determined, yet he specifically rules out the oven as a source because of the fact that there was not enough energy to create a fire resulting from high-resistance connection. Dr. Sudler examined the other appliances in the kitchen and noted that their power cords had evidence of electrical activity and/or arcing, and therefore those appliances could not be ruled out as potential ignition sources for the fire. First, Dr. Sudler fails to address the specific allegations contained in Plaintiffs' bill of particulars: that the stove was installed in such a manner that compromised, pinched or compressed the power cord. Dr. Sudler speaks of the potential for abused power cords to lead to a fire, and the implementation of Arc Fault Circuit Interrupter ("AFCI") device was created to attempt to reduce fires caused by damaged cords resulting in electrical arcing or shorting causing subsequent fires. However, his report makes no specific opinion on whether a power cord that is compromised or damaged in such a manner as alleged by Plaintiffs could eventually lead to a possible ignition source for a fire. Dr. Sudler tested an undamaged power cord that was presumably installed properly, and did not face substantially similar conditions that were allegedly faced by the subject cord (see Styles v. General Motors Corp. , 20 AD3d 338, 339 [1st Dept. 2005], citing People v. Laufer , 275 AD2d 655, 655 [1st Dept. 2000], lv. denied , 96 NY2d 785 [2001] ). Moreover, the Court notes that Dr. Sudler only examined an exemplar of the stove and power cord because a substantial portion of the actual power cord involved in this fire was lost during the post-incident investigation that was undertaken by, among other parties, 977 Grant's representatives in the days that followed. Without the power cord, it is unknown on this record whether it was actually cinched or damaged in the manner as alleged by Plaintiffs, but as noted above, 977 Grant failed to demonstrate as a matter of law that such a condition was not created by its employee. 977 Grant cannot use the lack of a power cord to its benefit, as a defendant cannot carry their initial summary judgment burden by pointing out gaps in the plaintiff's proofs (see Li Xian v. Tat Lee Supplies Co., Inc. , 2019 NY Slip Op. 02039 [1st Dept. March 19, 2019] ). Furthermore, as the moving party, it was 977 Grant's burden to specifically address all factual allegations and theories of liability claimed by Plaintiffs, in order to demonstrate their entitlement to summary judgment (see Chapman v. City of New York , 139 AD3d 507 [1st Dept. 2016] ; Breitman v. Dennett , 77 AD3d 498 [1st Dept. 2010] ). Dr. Sudler could not satisfy 977 Grant's burden by addressing these issues for the first time in a reply affirmation (see Borrero v. Bautrone , 68 AD3d 666, 667 [1st Dept. 2009] ).
Dr. Sudler also claims that other appliances in the kitchen could not be ruled out as potential ignition sources, such as the toaster oven, microwave oven, or refrigerator. He also refers to an "arc-map" of all of the appliances in the kitchen and opines that the other sources - except for the oven that did not have a current draw - could have caused this fire. However, Dr. Sudler further asserts that NFPA guidelines provide: "[i]t should be established that the appliance in question was in the area of origin. Those appliances that were clearly located outside the area of origin generally can be excluded as fire causes" (Sudler Aff. at Par. 13). Accordingly, while Dr. Sudler claims that these other appliances are possible origins for the fire, he ignores the testimony of O'Connor, who inspected the kitchen after the fire and unequivocally testified that no other electrical appliance or ignition source was in the area of origin: approximately two feet from the south wall and approximately one foot from the floor level (O'Connor EBT at 278-79). In sum, due to his failure to specifically address the claims in the bill of particulars, and due to the failure to take into account the testimony proffered by the Fire Marshal, who inspected the location after the incident, the affirmation from Dr. Sudler "never rose above the level of speculation" ( Pastabar Café Corp. v. 343 E. 8th St. Assoc. , LLC , 147 AD3d 583, 585 [1st Dept. 2017] ). 977 Grant has therefore failed to establish its entitlement to summary judgment, and its motion is denied regardless of the sufficiency of the opposing papers (see Scully v. Brooklyn Union Gas , 35 AD3d 435, 436 [2nd Dept. 2006] ).
B. Plaintiffs' Cross-Motion
Plaintiffs cross-move for an order (1) pursuant to CPLR 3126, for sanctions against Defendants based on their spoliation of evidence, including precluding Defendants from offering any evidence on the issue of the cause of the subject fire, and resolving the issue of the cause of the fire in Plaintiffs' favor, (2) pursuant to CPLR 3212(c), for partial summary judgment in Plaintiffs' favor holding that the range installed by Defendants' employee was the cause of the subject fire.
Under CPLR 3126, sanctions may be imposed "when a party intentionally, contumaciously, or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary's inspection" (see Melcher v. Apollo Medical Fund Management LLC. , 105 AD3d 15 [1st Dept. 2013], citing Sage Realty Corp. v. Proskauer Rose , 275 AD2d 11, 17 [1st Dept. 2000] ; lv. dism. , 96 NY2d 937 [2001] ). "On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind," which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense" see Duluc v. AC & L Food Corp. , 119 AD3d 450 [1st Dept. 2014] [internal citations omitted] ).
With respect to the first prong of the analysis, a the obligation to preserve evidence is triggered "[o]nce a party reasonably anticipates litigation" (see VOOM HD Holdings LLC. v. EchoStar Satellite, LLC. , 93 AD3d 33, 36 [1st Dept. 2012], quoting Zubulake v. UBS Warburg, LLC. , 220 FRD 212 [S.D.NY 2003] ). A party in control of the evidence is deemed to "reasonably anticipate" litigation when it is " ‘on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation’ " ( id. at 43, quoting The Sedona Conference, Commentary on Legal Holds: The Trigger and the Process , 11 Sedona Conf. J. 265, 267 [Fall 2010] ). Actual notice of pending litigation is not necessary, as a party's duty to preserve evidence may be triggered where the alleged spoliator was "on notice that the [evidence] might be needed for future litigation" ( Strong v. City of New York , 112 AD3d 15, 22 [1st Dept. 2013] ).
In this case, 977 Grant was on notice of the probable litigation ensuing after a fatal fire occurred on their premises. In the days that followed the incident, 977 Grant had attorneys and engineers enter and inspect the premises and extract physical evidence on its behalf, indicating that 977 Grant was aware of the need to preserve such evidence, and that it was actively preparing for a possible lawsuit ( VOOM HD Holdings LLC. , 93 AD3d at 36 ). The record also clearly reflects that 977 Grant had control over the apartment and its contents at pertinent times. Ferreira testified that after the fire, he was instructed by the building owner to not allow anyone inside of the apartment, including the tenants (Ferreira EBT at 16). Ferreira noted that the doors to the apartment were boarded up and locked, and he was the only one who had a key to that lock ( id. at 18-19 ). He assumed that the lock was put on the door on the day of the fire ( id. at 19 ). The only people that Ferreira let inside of the apartment were "the insurance company" and the fire department ( id. at 21 ). On March 21, or about four days after the incident, various representatives on behalf of 977 Grant entered the apartment to remove appliances and other materials. 977 Grant points to the fact that members of Plaintiffs' facility also accessed the apartment at times after the fire. However, there is no indication that anyone did anything to the stove or items in the kitchen. In an affidavit, nonparty Herman Martinez states that on March 18, he removed some personal items from the apartment that belonged to his son, plaintiff Shaun Martinez, but he did not remove anything from the kitchen and he was accompanied by a building representative at all times.
While 977 Grant contends that the apartment had been "aggressively disturbed by fire officials and others" prior to the entry and evidence extraction performed by 977 Grant's representatives, there is no indication that any other agencies disturbed the oven or power cord after O'Connor completed his initial investigation. To his knowledge, O'Connor was the first person to photograph the kitchen and oven. Once pictures were taken, he acknowledged that people from other agencies "touched things" in the kitchen (O'Connor EBT at 68), and O'Connor himself touched the stove, but he "didn't see anyone else near the stove or touching the stove except for perhaps [his] partner, you know, just moving the stove to clear out the area, looking behind the stove. But there was no other parties that [he] saw touch the stove" (id. at 68-69). O'Connor did not know specifically what the other agencies were doing while he was in the apartment, or when he left (id. at 70-71). He also stated, however, that any significant evidence removed by agencies such as the NYPD Arson and Explosion unit would have been vouchered ( id. at 37 ). Plaintiffs issued a subpoena for the complete NYPD file, but there was nothing in that file having anything to do with the range's power cord or remnants being removed.
O'Connor was also made aware that firefighters who first searched the apartment and extinguished the fire had discarded or threw things out of windows during the "overhaul" process to expose voids and ensure that the fire did not spread (id. at 46; 60). He specifically observed "that there were items which looked like items which would have been the result of the overhauling from pulling down ceilings and debris, for a lack of a better word, out in the alleyway" (id. at 60:13-22). O'Connor, however, inspected that debris himself and found nothing that "would have in any way indicated that it had anything to do with the causing of the of the fire" (id. at 61). The next time O'Connor arrived at the apartment, he noticed that the kitchen area was "wider" in that the area "was opened up a little bit more" (id. at 77). But he also noted that at that time, there were private investigators at the scene including the defendants' attorneys, engineers, and expert Mike Russo (id. at 77-78). In sum, the record as a whole demonstrates that while there were other agencies in the apartment in the aftermath of this fire, none of these other entities did anything with the subject power cord, and 977 Grant retained ultimate control over the premises until their representatives had the opportunity to access it themselves to inspect the area and extract evidence.
With respect to the second prong of the spoliation analysis, evidence may be deemed destroyed with a "culpable state of mind" where it is destroyed either knowingly or negligently ( VOOM HD Holdings LLC. v. EchoStar Satellite, LLC. , 93 AD3d at 45 [internal citations omitted]; Residential Funding Corp. v. DeGeorge Financial Corp. , 306 F.3d 99, 108 [2nd Cir. 2002] ). Even where the loss or destruction of evidence is unintentional, a court may find spoliation where the record supports a finding that crucial evidence was negligently lost or destroyed, and the spoliator took no steps to assure its preservation (see Standard Fire Ins. Co. v. Federal Pacific Elec. Co. , 14 AD3d 213, 219 [1st Dept. 2004] ). In addition, spoliation sanctions may be warranted even though the alleged spoliator was not the owner of the missing evidence, where the spoliator, again, "failed to take sufficient steps to assure [ ] preservation" of the evidence (id. , citing Amaris v. Sharp Elecs. Corp. , 304 AD2d 457, 758 N.Y.S.2d 637 [1st Dept. 2003] ; see also Moscione v. QPII-43-23 Ithaca St. LLC , 156 AD3d 445, 446 [1st Dept. 2017] [although defendant was no longer owner or manager of the premises, they undertook the coordination of the inspection of an allegedly defective elevator, and should have advised the new premises owner to preserve the elevator until an inspection was concluded] ).
In this case, 977 Grant failed to take sufficient steps to preserve the evidence in the apartment - notably the stove and any attachments thereto - after the fire occurred (see Suazo v. Linden Plaza Associates, L.P. , 102 AD3d 570 [1st Dept. 2013] ). 977 Grant or its insurer retained experts and attorneys to enter the apartment within days of the incident, without any prior notice to Plaintiffs. These representatives had the opportunity to examine the apartment in an unaltered state. They removed appliances, electrical wiring, and most crucially the subject oven and power cord from the apartment. According to Plaintiffs' expert, these unilateral inspections and extractions performed prior notice to all interested parties violated certain applicable NFPA guidelines.
At his examination before trial, O'Connor reviewed a photograph of the rear of the oven and power cord. The power cord as depicted in the photograph contains three distinct strands of electrical wire extending approximately two feet in length from the back of the oven (Pl. Ex. B1). O'Connor testified that the cord remained in this condition during the time he was inside of the apartment (O'Connor EBT at 280-81). By the time Plaintiffs were able to inspect the oven, months later at 977 Grant's expert's facility, it only had one short strand of electrical wire remaining, which extended just a few inches from the back of the oven (Pl Ex. B2). To date, there is no explanation as to what happened to the cord between the time O'Connor inspected it and the time it was made available to Plaintiffs for inspection at the defendant's facility. 977 Grant submits an affidavit from their expert Michael Cummings of T.J. Russo Consultants who recounts the procedures for removing the evidence, and notes what was packaged and catalogued, but he does not attest to what happened to the stove power cord or explain its condition when it arrived at his facility. Mr. Cummings also does not state whether he inspected the stove when he arrived at the scene and does not state what it looked like at that time.
On this record, while there is no direct evidence that 977 Grant or its representatives were the ones who lost or destroyed the power cord at issue, 977 Grant nevertheless had control over the premises and its contents at relevant times, and therefore it had a concomitant duty to ensure that the evidence was properly preserved for the possibility of litigation following this fatal fire. Since 977 Grant has failed to adequately account for the fact that the cord was either lost or destroyed between the time when O'Connor last inspected the premises until the time the oven was made available for inspection at it's expert's facility, the Court finds that the evidence was spoliated as a result of 977 Grant's negligence (see Standard Fire Ins. Co. v. Federal Pacific Elec. Co. , 14 AD3d 219).
The third and final prong on a motion for spoliation sanction is that the destroyed evidence was relevant to the moving party's claim or defense (see Pegasus Aviation I, Inc. v. Varig Logistica S.A. , 26 NY3d 543, 547 [2015] ). This prong is clearly satisfied here, because the subject power cord was identified as a potential cause of the fire, and 977 Grant's motion for summary judgment seeks dismissal of the complaint in part because they claim that Plaintiffs are unable to establish that the power cord caused the fire.
Since Plaintiffs have established that the three elements of a spoliation claim are satisfied, the final determination is the sanction to be imposed on 977 Grant. The Court initially finds that Plaintiffs are not entitled to the requested sanction: an order precluding any of the defendants from contesting or challenging the Fire Marshal's determination that the range's power cord was the cause of the fire, and granting partial summary judgment in Plaintiffs' favor on this issue. While 977 Grant may have been negligent in failing to preserve crucial evidence, there is no showing that it acted intentionally. Such a severe sanction may only be imposed "where a party destroys key physical evidence such that its opponents are " ‘prejudicially bereft of appropriate means to [either present or] confront a claim with incisive evidence’ " ( Tommy Hilfiger, USA v. Commonwealth Trucking , 300 AD2d 58, 60 [1st Dept. 2002], quoting DiDomenico v. C & S Aeromatik Supplies , 252 AD2d 41, 53 [2nd Dept. 1998], and Squiteri v. City of New York , 248 AD2d 201, 202 [1st Dept. 1998] ). Plaintiffs here have failed to demonstrate that they will endure such prejudice as a result of the loss of the oven power cord. Neither party was able to examine the power cord before its loss, and 977 Grant's expert relied only upon an exemplar of the oven and cord in support of its summary judgment motion.
Plaintiffs do not allege that they have no other means to prove their case (see VOOM HD Holdings LLC, 93 AD3d at 47 ). The Court further notes that earlier in this litigation, Plaintiffs moved for an order, among other things, granting them leave to depose the individuals who conducted the unilateral inspections and evidence removal on behalf of Defendants, in order to determine "appropriate sanctions" for the "spoliation of evidence." By decision and order dated August 25, 2014, the motion was granted to the extent that Plaintiffs were permitted to depose Defendants' experts who arrived at the scene in the days following the fire, because those "experts had the opportunity to inspect the premises shortly after first responders completed their work, and outside of the presence of Plaintiffs or their experts" (Brigantti, J. Decision and Order dated August 25, 2014). Plaintiffs, however, never conducted these depositions, and therefore they have failed to support this motion with any additional facts that could warrant the imposition of the extreme sanction that they are now seeking. Under the totality of the circumstances here, an adverse inference charge is warranted against 977 Grant ( VOOM HD Holdings LLC, 93 AD3d at 47, citing E.W. Howell Co., Inc. v. S.A.F. La Sala Corp. , 36 AD3d 653, 655 [1st Dept. 2007] [negative inference charge was appropriate "where the loss does not deprive the opposing party of the means of establishing a claim or defense"] ). An adverse inference charge would be sufficient to prevent 977 Grant from using the absence of the power cord to its own advantage ( Minaya v. Duane Reade Intl., Inc. , 66 AD3d 402, 403 [1st Dept. 2009] ). Plaintiffs, however, are not entitled to any spoliation sanction against co-defendant Alboro. While the issue of whether Ferreria installed the subject stove within the scope of his duties for Alboro is unresolved on these papers, Plaintiffs failed to submit sufficient evidence that any representatives from Alboro, as opposed to 977 Grant, inspected the premises or removed items before Plaintiffs had the opportunity to do so, or otherwise had complete control over the apartment in the days following the fire.
III. Conclusion
Accordingly, it is hereby
ORDERED, that 977 Grant's motion for summary judgment is denied, and it is further,
ORDERED, that Plaintiffs' cross-motion is granted only to the extent that Plaintiffs are entitled to an adverse inference jury charge against 977 Grant with respect to the subject lost/destroyed oven power cord at the time of trial, and it is further,
ORDERED, that Plaintiffs' cross-motion is otherwise denied.
This constitutes the Decision and Order of this Court.