The opinion of the court was delivered by: Cedarbaum, District Judge.
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
Defendants have also moved to exclude the opinion testimony of
the expert proffered by plaintiffs.
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.
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
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 ...