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Travelers Property Casualty Company of America As Subrogee of Sherle Wagner International, Plaintiff v. Consolidated Edison Company of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 19, 2013

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA AS SUBROGEE OF SHERLE WAGNER INTERNATIONAL, PLAINTIFF,
v.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., DEFENDANT. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., THIRD-PARTY PLAINTIFF-RESPONDENT, 450 PARK LLC, ET AL., THIRD-PARTY DEFENDANTS-APPELLANTS, TACONIC INVESTMENT PARTNERS, LLC, ET AL., THIRD-PARTY DEFENDANTS. [AND ANOTHER THIRD PARTY ACTION]

Travelers Prop. Cas. Co. of Am. v Consolidated Edison Co. of N.Y., Inc.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 19, 2013

Andrias J.P., Renwick, Freedman, Gische, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 22, 2012, which, insofar as appealed from as limited by the briefs, denied third-party defendants-appellants' motion for summary judgment dismissing the third-party complaint and all cross claims as against them, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this case Travelers Property Casualty Company of America, as subrogee of Sherle Wagner international, LLC (SWI), seeks recovery for losses sustained when SWI's Manhattan showroom, located in the sub-basement of 60 E. 57th Street, became flooded after the sump pump in an adjacent Con Edison vault failed to work. The vault, which was located outside of the premises, housed an electrical transformer and supplied power to the premises through electrical wires. The wires were run through conduits, between the vault and a "network compartment" room, which shared a wall with the vault, but was located within 450 Park LLC's premises.

450 Park LLC and Taconic Management Company, LLC, the owner and property manager of the premises, respectively, made a prima facie showing of entitlement to dismissal of the claims asserted against them. The motion papers established that 450 Park LLC and Taconic Management Company, LLC lacked control or responsibility for the space within the conduits, through which, according to their two experts, the water entered the premises, and established lack of prior notice of an insufficient waterproofing condition. Although the network compartment was located on the premises, it housed Con Edison's equipment and Con Edison had exclusive access to the locked room, via use of a standardized key used for other network compartments throughout Manhattan. Further, a long-time Con Edison employee testified that, in order to prevent water from traveling through the conduits between the vault and the network compartment, the ducts were packed with a fibrous substance and then sealed with a sealant, which materials he carried on his truck and applied when necessary.

In opposition, Con Edison failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Con Edison did not dispute that the water entered the premises through the conduits, which carried its wires from the vault to Con Edison's equipment in the network compartment. As such, responsibility for sealing the space between the conduits and the exterior wall of the premises, on which point the opposition papers were focused, is not at issue. Given Con Edison's admitted responsibility for the "electrified components" in the network compartment {see 16 NYCRR 98.4), there is no logical basis upon which to exclude its responsibility for the sealing of the subject conduits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 19, 2013

CLERK

20130219

© 1992-2013 VersusLaw Inc.



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