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Hartford Fire Insurance Company As Subrogee of Professional Products v. Denis Bravo and Nelson Cazard Doing Business As Latin

September 26, 2011


The opinion of the court was delivered by: Roslynn. R. Mauskopf, United States District Judge.


Plaintiff Hartford Fire Insurance Company ("Hartford"), as subrogee of Professional Products Research Co., Inc. ("PPRC"), brings this action against Atlantic Handling Systems, LLC ("Atlantic"), seeking damages for Atlantic's alleged negligence in causing a fire in a building owned by PPRC. (Compl. (Doc. No. 1) ¶¶ 3--4.) Atlantic impleaded Latin Installations ("Latin") as a third-party defendant, alleging that any harm to PPRC was solely due to the conduct of Latin. (Third Party Compl. (Doc. No. 10) ¶¶ 6, 8--10.) Hartford also seeks damages from Latin, alleging that Latin violated a duty to PPRC under the same negligence theories brought against Atlantic. (See Pl.'s Claims Against Third Party Defs. ("Pl.'s Third Party Compl.") (Doc. No. 15) ¶¶ 28--35.)

On January 28 2011, Latin and Hartford moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (See Atlantic's Mot. Summ. J. (Doc. No. 30) at 1; Latin's Mot. Summ. J. (Doc. No. 34) at 1.) Although the motions are separate, each is based on the same claim: that neither party owed a duty to PPRC. For the reasons set forth below, both motions for summary judgment are GRANTED.


The facts are either undisputed or set forth in the light most favorable to plaintiff. See Capobianco v. City of N.Y., 422 F.3d 47, 50 n.1 (2d Cir. 2001). Plaintiff is an insurance company, based in Connecticut, that pursuant to its insurance policy with PPRC is subrogated to all of PPRC's rights in this case. (Compl. ¶ 9.) Atlantic is a vendor of industrial storage systems, based in New Jersey. (See Atlantic's Statement Pursuant to Local R. 56.1 (Doc. No. 30) ("Def.'s 56.1 Stmt.") ¶¶ 7--8.) PPRC is a vendor of foot care products. (Atlantic's Mot. Summ. J. Ex. I (Jefairjian Dep.) (Doc. No. 30-10), at 6.)

At all relevant times PPRC owned a building at 73 20th Street in Brooklyn, New York, where it did business as Pro-Foot, Inc. (Def.'s 56.1 Stmt. ¶¶ 1--3.) In or about August 2008, a PPRC representative invited Atlantic to submit a bid for the sale and installation of a "push-back" rack system in the PPRC building. (See id. ¶ 8.) A "push-back" rack is a storage system where pallets of merchandise are loaded onto sliding rails that push back into the bays of the shelving unit. (See Pl.'s Mem. in Opp'n to Defs' Mot. for Summ. J. (Doc. No. 33-2) ("Pl.'s Mem.") at 2.) PPRC provided Atlantic with specifications drafted by a previous contractor that showed the configuration of the rack system, as well as the location where PPRC wanted it installed. (See Def.'s 56.1 Stmt. ¶ 8--9; Atlantic's Mot. Summ. J. Ex. G ("Rack Specifications, Invoice and Purchase Order") (Doc. No. 30-8), at 13.) PPRC's proposed rack system was six bays wide, with each bay holding two rows of merchandise, by three levels high; the unit as called for in the specifications was approximately fifty-six feet across by fifteen feet tall. (Rack Specifications, Invoice and Purchase Order at 13.)

John Cosgrove, the president of Atlantic who also happened to be a volunteer firefighter, visited the site before submitting a bid. (Def.'s 56.1 Stmt. ¶ 11.) While at the site, Richard Jefairjian, an employee of PPRC, showed Cosgrove the location where the shelving unit was to be installed. (Jefairjian Dep. at 19.) The shelving unit was to be built against a wall, which would block a steel door with a roll-up canister above it. (Rack Specifications, Invoice and Purchase Order at 13.) Cosgrove was aware that the rack would likely be used to store corrugated cardboard. (See Atlantic's Mot. Summ. J. Ex. H (Cosgrove Dep.) (Doc. No. 30-9) at 21.) A typical pallet of cardboard stored by PPRC was 4.5 feet tall. (See Pl.'s Mem. at 2.) The exact height of the ceiling is not in the record, but, according to a measurement taken by Cosgrove, the distance between the floor and a heater that hung from the ceiling in the middle of the room was twenty feet. (See Cosgrove Dep. at 25.) Cosgrove also looked for obstructions, noting the existence of sprinkler heads on the ceiling. (See id. at 23.) He also noted that because of the protruding roll-up canister above the blocked door, the rack would need to be built twenty inches out from the wall. (See id. at26.) Cosgrove did not notice the radiant gas-powered heater located above the canister on the wall, nor did he specifically look for heaters. (See id. at 27, 31.) Although the heater was above the canister, the record does not reflect the exact height of the heater from the ground or racking system.

Atlantic's bids included the price of material and installation. (Rack Specifications, Invoice and Purchase Order at 3.) In or about September 2008, PPRC accepted Atlantic's bid. (Def.'s 56.1 Stmt. ¶ 13.) Atlantic hired New Jersey residents Denis Bravo and Nelson Cazard, doing business as Latin Installations, to install the rack system, which was done in November 2008. (Id. ¶¶ 15,16.) During the installation, Cosgrove made a second visit to the site, during which time he neither noticed, nor looked for heaters near the installation area. (Cosgrove Dep. at 64.) When the installation of the racking system was nearly complete, Jefairjian noticed the heater above the door canister. (See JefairjianDep. at 26; Pl.'s Mem. at 10.) He then told an unnamed installer, working for Latin, to turn off the gas valve leading to the heater; since Jefairjian believed the installers only spoke Spanish, he also told another employee, Yubenrrys Mateo ("Mateo"), who also spoke Spanish, to relay the message. (See JefairjianDep. at 26--27; Atlantic's Mot. Summ. J. Ex. J (Mateo Dep.) (Doc. No. 30-11) at 12.) Jefairjian also instructed Mateo to turn off the thermostat leading to the heater, which Mateo claims to have done. (See Mateo Dep. at 34--36.) Both Jefairjian and Mateo believed that an employee for Latin turned off the gas valve, though neither of them checked to make sure the gas was in fact turned off. (JefairjianDep. at 29; Mateo Dep. at 34.)

In mid-November 2008, after Latin completed installation, Jefairjian inspected the racking system. (Def.'s 56.1 Stmt. ¶ 20--21; JefairjianDep. at 31.) Neither Jefairjian, nor any other PPRC representative, notified Atlantic that they believed the racking system contained any defects. (Def.'s 56.1 Stmt.¶ 24.) PPRC stacked pallets of corrugated cardboard on the racking system for the period between mid-November 2008 and February 2, 2009. (Id. ¶ 22; Mateo Dep. at 37.) On February 2, 2009, a fire occurred in the PPRC building. (Def.'s 56.1 Stmt. ¶ 25.) The New York Fire Department ("NYFD") determined that the fire was caused by the proximity of the cardboard that PPRC had stacked to the radiant heater located above the rack. (Id. ¶ 27; Atlantic's Mot. Summ. J. Ex. K (Doc. No. 30-12) (NYFD Incident Report), at 2.) No party stated how the heater turned on, nor could any party definitively state that the heater had been turned off by Latin. John Orlando, a NYFD fire marshal assigned to investigate the fire, estimated that corrugated cardboard was stacked within one to three feet of the heater at the time of the fire. (Atlantic's Mot. Summ. J. Ex. L (Orlando Dep.) (Doc. No. 30-13) at 29.) Plaintiff claims that corrugated cardboard was stacked within eighteen inches of the heater. (See Pl.'s Mem. at 9.)*fn2

Hartford, PPRC's first party property insurer, paid PPRC $484,393.25 in connection with the loss sustained as a result of the fire on February 2, 2009. (Compl. ¶¶ 2--3.) As a result of paying PPRC's insurance claim, Hartford was subrogated to PPRC's right to bring a cause of action arising out of the fire. (Id. ¶ 8.) On September 25, 2009, Hartford brought a claim against Atlantic, alleging negligence in the installation of the rack system, and seeking damages for the amount paid to PPRC. (See id. ¶¶ 15--19, 21.) As the parties are completely diverse, and the amount in controversy is over $75,000, the court has subject matter jurisdiction under 28 U.S.C. § 1332. See also Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 363 (2d Cir. 2000.)

On February 10, 2010, Atlantic filed a third-party complaint, alleging that PPRC's injury and Atlantic's liability, if any, resulted solely from Latin's breach of duty to PPRC. (Third Party. Compl. ¶¶ 6, 8--10.) On May 11, 2010, Hartford brought a claim against Latin under Federal Rule of Civil Procedure 14(a)(3), alleging that Latin violated a duty to PPRC under the same negligence theories brought against Atlantic. (See Pl.'s Third Party Compl.; see also Int'l Paving Sys., Inc. v. Van-Tulco, Inc., 866 F. Supp. 683, 686--87 (E.D.N.Y. 1994).)*fn3 On January 28, 2011, Atlantic and Latin filed motions for summary judgment, claiming that neither owed a duty of care to PPRC.


Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In deciding a summary judgment motion, a district court must draw all reasonable inferences in favor of the nonmoving party. See id. at 249 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158--59 (1970)); Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998). The court must not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Any evidence in the record of any material fact from which an inference could be drawn in favor of the non-moving party precludes summary judgment. See Castle Rock Entm't, 150 F.3d at 137.

Once the movant has demonstrated that no genuine issue of material fact exists, then "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original). However, there must exist more than mere "metaphysical doubt as to the material facts" to defeat a summary judgment motion. Id. at 586. Instead, the non-moving party must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Only disputes over material facts ...

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