The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM DECISION and ORDER
This case is a subrogation of a fire claim. Dkt. No. 1, Compl. Pending before this Court is Defendant Gonyo's Motion for Summary Judgment. Dkt. Nos. 44-47.*fn3 The Plaintiff Insurance Company, Allstate Insurance Company,*fn4 opposes this Motion for Summary Judgment. Dkt. Nos. 48-50.*fn5 Gonyo filed a Reply to Lothridge's Opposition. Dkt. No. 51, Daniel W. Coffey, Esq., Aff., dated Oct. 24, 2008. For the reasons that follow, Gonyo's Motion for Summary Judgment is denied.
In 1977, Thomas Lothridge and his brother built a cabin at Bida Road, New Berlin, New York. Dkt. Nos. 47, Ex. F, & 48-2 Ex. B, Thomas Lothridge Dep., dated Mar. 26, 2008, at pp. 22-23. Around 1980 or 1981, Lothridge installed a stove which served as the Cabin's sole heating source. Id. at p. 25; Dkt. Nos. 47, Ex. E, & 48-2, Ex.C, Charles Stone Dep., dated Apr. 17, 2008, at p. 16. In addition to his own personal use, over the years, beginning approximately 1990, Lothridge rented the Cabin to hunters. Initially, renters paid $10.00 per day per person, however, at some point, the rent rose to $15 per day per person. Lothridge Dep. at pp. 11-12, & 15-16.
Since the early 1990s, Gonyo and others rented the Cabin in order to pursue their hunting interests in the woods of Chenango County. Dkt. Nos. 47, Ex. D, & 48-2, Ex. D, Albert Gonyo Dep., dated Apr. 17, 2008, at p. 12. In November, 2005, Gonyo, Charles Stone, and two other hunters verbally agreed with Lothridge to rent the Cabin at the $15 per day per person rate. Compl. at ¶ 8; Gonyo Dep. at pp. 13-14. Approximately ten days prior to Gonyo's and Stone's arrival at the Cabin, Lothridge had used the Cabin. Lothridge Dep. at pp. 65 & 70. Lothridge kept two tools boxes at the structure, one which was usually kept near the front door and the second kept mostly in the living room area in some proximity to the stove, sometimes underneath a coffee table and*fn7 other times near a wall or the stove. Gonyo Dep. at p. 20-21; Lothridge Dep. at p. 70-73. These two tool chests were plastic, and Lothridge recalled that he could have used one of the tool chests on his last visit at the Cabin and could have, and most likely did, left it in close propinquity to the stove. Lothridge Dep. at p. 70.
Gonyo and Stone arrived at the Cabin on November 14, 2005. Prior to hunting, Gonyo lit a fire in the stove, with Stone assisting solely by bringing in wood. Gonyo Dep. at p. 19. After the stove was fully lit, Gonyo and Stone left the cabin for approximately forty-five (45) minutes to an hour to scout for deer. Id. at p. 19-25. Upon their return to Cabin, they observed black smoke billowing from the Cabin but did not see any flames. Id. at p. 26.
The first responders to the fire were the New Berlin Fire Department, which included the Fire Chief, George Hanslmaier, who was a Level One Certified Fire Investigator by New York State.
Dkt. No. 47, Ex. G, George W. Hanslmaier Dep., dated June 24, 2008, at pp. 9-11. After the fire was extinguished, and as the highest ranking official at the fire scene, Hanslmaier conducted a fire scene origin and cause investigation, of which Gonyo and Stone witnessed. Gonyo Dep. at p. 32; Hanslmaier Dep. at pp. 18-21. Hanslmaier opined that the fire began in the chimney due to the chimney becoming too hot and igniting the roof. Hanslmaier Dep. at pp. 21, 23, 24, 25, & 31; Dkt. No. 47, Ex. H, New Berlin Fire Report. Further damage was caused by "drop down" debris from the roof. Later that evening, Lothridge arrived at the Cabin and spoke with Gonyo and Stone. The following day, Lothridge, Gonyo, and Stone visited Lothridge's insurance agent, in part, to determine if their property loss would be covered. Consequently, Allstate was notified of the fire.
Allstate representative Robert Koban retained Dennis A. Ware to investigate the cause and origin of the fire. Dkt. Nos. 47, Ex. J, & 48-2, Ex. F, Robert Koban Dep., dated Mar. 26, 2008, at p. 9. On November 17, 2005, Lothridge, Koban, and Ware inspected the fire scene. Id. at p. 12. During the inspection, Ware observed the melted outline of purportedly the remains of the plastic tool chest, approximately six inches from the Stove. Dkt. No. 47, Ex. I, Dennis A. Ware Report, at pp. 6 & 7. Based upon his investigation, Ware concluded that the fire originated in the northeast corner of the living room by the stove and attributes the ignition of the fire "to the failure of the persons who were using the wood stove to maintain proper clearance to combustibles (the plastic toolbox) located close to the wood stove." Id. at p. 7. Immediately thereafter, Ware reported his conclusions to Allstate.
Gonyo claims that, before lighting the stove, he conducted a quick visual inspection of the area surrounding the stove and observed nothing. Gonyo Dep. at pp. 20-21. He further asserts that if a plastic tool chest had been within two to three feet of the stove, he would have removed it inasmuch as he, based upon his experiences with his own wood-burning stove, recognized that a plastic tool chest in close proximity to the stove, which is radiating heat, would be a fire hazard. Id. at pp. 20-23.
Because Gonyo and Stone sustained property loss as well, they submitted claims to their respective insurance companies. Several days after the fire, Gonyo and Stone returned to the Cabin and took photographs of the fire scene. Stone Dep. at p. 38. Presumably, upon receiving Ware's report, on November 17, 2005, Allstate had knowledge that Gonyo was suspected of causing the fire. Def.'s 7.1 Statement at ¶ 18. However, five months later, on April 12, 2006, Allstate's attorney sent a letter to Gonyo advising him that the fire was the result of his negligence. Dkt. No. 47, Ex. K, Allstate Lt., dated Apr. 12, 2006. Insurance adjuster Koban avers that
prior to the attorney's letter, he unsuccessfully attempted to contact Gonyo and Stone by telephone because he did not have addresses for them. Koban Dep. at p. 15. Gonyo submitted the April 12th letter to his insurance carrier, MetLife, who responded to Allstate on April 18, 2006. Dkt. No. 48-2, Ex. I, MetLife Lt., dated Apr. 18, 2006.
Sometime between November 17, 2005 and June 19, 2006, the Cabin was demolished by Jerry Knapp Construction (Knapp). On June 19, 2006, Knapp faxed his invoice for the demolition to Allstate, which was paid on July 3, 2006. However, the invoice does not reflect the date that the demolition occurred. Dkt. No. 48-2, Ex. H., Jerry Knapp Report.
Based upon Lothridge's claims, Allstate paid their insured the sum of $171,693.13, Dkt. No. 47, Ex. C, Pl.'s Ans. to Interrog. at ¶¶ 21 & 22,*fn8 and pursuant to the terms of Lothridge's insurance policy, common law principles of legal, and equitable subrogration, Allstate is subrogated to Lothridge's rights with respect to any claims against Gonyo, id. at ¶ 15.
Gonyo seeks summary judgment on two discrete grounds: (1) Allstate fails to state a cause of action in negligence insofar as Gonyo did not owe Lothridge any duty; and (2) Allstate failed to give him prompt notification of his potential liability and to preserve the fire scene so as to afford Gonyo an opportunity to inspect the fire scene to determine the fire's origin.
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; ...