AFFILIATED FM INSURANCE COMPANY, as subrogee and assignee of KIP STAWSKI MANAGEMENT CORP. d/b/a KIPP STAWSKI MANAGEMENT GROUP and 48th AMERICAS LLC and 48th AMERICAS LLC, Plaintiffs,
ROSENWACH TANK CO., LLC, Defendant, ROSENWACH TANK CO., LLC, Third-Party Plaintiff,
K&G ELECTRIC CO., INC. AND GATESOFT TECHNOLOGY, INC., Third-Party Defendants. Index Nos. 600869/10, 590635/10
This case involves a subrogation action in which plaintiff Affiliated FM Insurance Company (Affiliated), seeks to recover $306, 910.02, which was paid to its insured for losses from an alleged failure of a water tower's monitoring system, which is located at 1212 Avenue of the Americas, in Manhattan, New York (the premises). Plaintiff, 48th Americas, LLC (48th Americas), is a limited liability company which owns the premises.
Motion sequence numbers 001, 002, 003, and 004 are consolidated for disposition. In motion sequence No. 001, Rosenwach Tank Co., LLC (Rosenwach), moves, pursuant to CPLR 3212, for an order granting it summary judgment and dismissing the complaint. In motion sequence No. 002, plaintiffs Affiliated, as subrogee and assignee of Kipp Stawski Management Corp. d/b/a Kipp Stawski Management Group (Stawski) and 48th Americas, and 48th Americas, individually, move, pursuant to CPLR 3212, for an order granting them summary judgement. In motion sequence No. 003, third-party defendant K & G Electric Co., Inc. (K. & G), moves, pursuant to CPLR 3212, for an order granting summary judgment and dismissing the third-party complaint as to it. In motion sequence No. 004, third-party defendant Gatesoft Technology, Inc. (Gatesoft), moves, pursuant to CPLR 3212, granting the same relief as to it.
Rosenwach is a company which installs, repairs, and maintains rooftop water tanks and associated controls. Rosenwach hired Joe Gentile (Gentile), the president of Gatesoft, to develop the Abacus Control System (ACS), a water tank control system. The ACS consists of a controller which sits in the basement of a building where water pumps are located, while a sensor sits at the bottom of a water tank, measuring the water level in the tank and converting it into an electrical signal. Wiring delivers the electrical signal from the sensor to the controller, so that the ACS knows when to activate the pumps.
On March 9, 2007, electricians from K & G, at the direction of Rosenwach, installed an ACS unit at the premises. Plaintiffs maintain that the ACS was connected to RH wire, a type of wiring with fabric-based insulation, which was originally installed at the premises in 1964. Plaintiffs contend that the ACS was designed to operate with MTW or THHN wires, which are more resistant to shorts that are caused by heat, age, and moisture.
On April 19, 2007, the ACS at the premises failed, allowing the pumps to continuously operate and pump water into the tank. This failure caused water in the tank to overflow and flood the roof, stairways, elevator shafts, and commons spaces. Plaintiffs maintain that electricians from Rosenwach determined that the tank overflowed due to a short in the riser wire, and that the problem was repaired using THHN wire.
Plaintiffs maintain that Rosenwach was aware that the ACS unit at the premises had experienced other problems before the incident at issue. Specifically, on April 17, 2007, two days before the flood, Rosenwach dispatched two electricians to the building after it was alerted that pumps at the building failed to operate. The electricians indicated that the problem was fixed, however, Stawski, the building management company, allegedly received subsequent complaints from tenants that the top floors of the premises did not have water.
As a result of the damages allegedly sustained from the flooding, on April 6, 2010, plaintiffs filed a summons and complaint, alleging causes of action against defendant Rosenwach for breach of contract, negligence, and res ipsa loquitor. On July 20, 2011, Rosenwach filed a third-party summons and complaint, naming Gatesoft and K & G as third-party defendants.
In motion sequence No. 001, Rosenwach argues that summary judgement must be granted in its favor because there is no evidence that it breached a duty or was the proximate cause of plaintiffs' damages. Rosenwach contends that because plaintiffs have failed to meet their burden, and do not demonstrate that Rosenwach was responsible for the flood or the short, its motion for summary judgment must be granted.
In motion sequence No. 002, plaintiffs maintain that their motion for summary judgment must be granted because Rosenwach is liable for foreseeable damages to the premises caused by the negligent installation and maintenance of the ACS. Plaintiffs contend that Rosenwach breached its duty of care by using the wrong type of wiring, and by failing to properly fix the problems with the ACS. Plaintiffs argue that, in the alternative, the doctrine of res ipsa loquitor would apply because the tank would not overflow absent negligence, that the ACS was within the exclusive control of Rosenwach, and that the management of the premises did not interfere with the operation of the ACS.
In motion sequence No. 003, K & G moves for summary judgment, and contends that plaintiffs have failed to produce any evidence to suggest that the cause of the flood was due to K & G's alleged negligent installation of the ACS. K & G argues that plaintiffs' allegations that the ACS failed because of bad wiring is unsupported by the evidence, that Gatesoft designed the ACS to work with wiring commonly utilized ...