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MINK MART, INC. v. RELIANCE INS. CO.

September 14, 1999

MINK MART, INC., PLAINTIFF,
v.
RELIANCE INSURANCE COMPANY, DEFENDANT. RELIANCE INSURANCE COMPANY, THIRD-PARTY PLAINTIFF, V. CLEMONS MANAGEMENT CORP., SIDNEY J. BERNSTEIN, INC., HELENA FURS, AND NORTH ATLANTIC FUR PROCESSING LTD., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Cedarbaum, District Judge.

OPINION

The fur vaults of Mink Mart, Inc., located in a building on New York's Fashion Avenue, were damaged by water in July of 1992. Mink Mart and its insurer, Reliance Insurance Company, allege that the building's landlord, third-party defendant Clemons Management Corp., and the building's managing agent, third-party defendant Sidney J. Bernstein, Inc., are responsible for the damage. Clemons and Bernstein (for purposes of this motion, the "defendants"), originally impleaded by then-defendant Reliance, now move for summary judgment dismissing the claims asserted against them by Mink Mart and Reliance (for purposes of this motion, the "plaintiffs").*fn1 Plaintiffs contend that the cause of the damage was the central air-conditioning system, for which defendants were responsible. Defendants contest this, and argue that the damage was caused by an overflow of a lavatory sink, for which defendants were not responsible.

Defendants have also moved to exclude the opinion testimony of the expert proffered by plaintiffs.

BACKGROUND

I. Eyewitness Accounts

Mink Mart, a furrier, was the assignee of the lease to the ninth floor of 345 Seventh Avenue. (Pl.Ex.G.)

At approximately 7 a.m. on July 28, 1992, water damage was discovered in Mink Mart's garment and skin vaults on the ninth floor. The entire floor of the skin vault was covered with water, and a portion of the floor of the garment vault was covered with water. (Haralabatos Dep. 115, 59.) The garment vault is in the southwest corner of the building and the skin vault is in the southeast corner of the building.

Water was also discovered on the premises of Helena Furs, Inc., which leased the premises on the tenth floor directly above Mink Mart's vaults. The parties to this motion agree that the damage to Mink Mart's premises was caused by water from the tenth floor.

On the morning of July 28, Marinos, a tenth-floor subtenant, walked from the main factory (which is on the east side of the building) to the adjacent room (the "southeast room"). He first saw water in the southeast room, at the spot marked "C" on a blueprint agreed to by the parties. (Marinos Dep. 21-22.) Water covered the area from "C" to the area in front of the door to the lavatory. (Marinos Dep. 21-23.) In the lavatory, he saw water on the floor and observed that one of the two sinks was filled to the brim. (Id. at 25, 46.) Marinos did not see any "water flowing." (Id. at 25.)

The building's night porter, Toote, was summoned. He "went up [to the tenth floor] and [saw] water on the floor." "Practically the entire floor had water on it." (Toote Dep. 30.) He testified that he saw water "throughout the entire place" and "[a]pproximately the entire floor" was covered with water. (Toote Dep. 43, 44.) Toote observed water on the floor of the lavatory. (Toote Dep. 47.) Toote also saw water in one sink and observed water dripping from one of the faucets into the sink. (Toote Dep. 78, 81.)

Tavernite, the building's superintendent, testified that "the water was coming from the sink in the bathroom, from an overflowing sink." (Tavernite Dep. 24.) Tavernite also testified that when he arrived, no faucets were turned on. (Tavernite Dep. 98.) He removed a ball of fur or hair from the sink, and the water then drained out. (Toote Dep. 78; Tavernite Dep. 51.) Tavernite also testified that he "seen water all over the factory area." (Tavernite Dep. 23.) It is not clear whether Tavernite was referring to the southeast room or the east room of the tenth floor. (2/5/99 Tr. 21.)

On the ninth floor, in Mink Mart's premises, Tavernite observed puddles of water on the floor and water dripping down the wall and from the ceiling. (Tavernite Dep. 101.) Haralabatos, Mink Mart's president, observed water on the ceiling near the wall that separates the skin vault and the garment vault. (Haralabatos Dep. 114.)

II. Air Conditioner Repair and Plaintiffs' Expert Opinion

The tenth floor has two "water-cooled" air-conditioning units, the water for which is circulated from a cooling tower located on the roof of the building. (Tavernite Dep. 14.) Each unit consists of ...


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