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Philadelphia Indem. Ins. Co. v. Jerome Fire Equip. Co.

United States District Court, Second Circuit

August 12, 2013

PHILADELPHIA INDEM. INS. CO., a/k/a Highland Park Golf Course, Inc., Plaintiff,
v.
JEROME FIRE EQUIP. CO.; ABJ FIRE PROT. CO.; D'ALBERTO REFRIGERATION SER V. INC.; and SANFORD & BURTIS FIRE EQUIP., INC., Defendants.

MEMORANDUM-DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this insurance subrogration action filed by Philadelphia Indemnity Insurance Company ("Plaintiff") against D'Alberto Refrigeration Service, Inc. ("Defendant D'Alberto"), Jerome Fire Equipment Company ("Defendant Jerome"), ABJ Fire Protection Company ("Defendant ABJ Fire"), and Sanford & Burtis Fire Equipment, Inc. ("Defendant Sanford & Burtis"), are the following four motions: (1) a motion for summary judgment filed by Defendant D'Alberto (Dkt. No. 65); (2) a motion for summary judgment filed by Defendant Jerome (Dkt. No. 66); (3) a motion for summary judgment filed by Defendant ABJ Fire (Dkt. No. 67); and (4) a motion for summary judgment filed by Defendant Sanford & Burtis (Dkt. No. 68.) For the reasons set forth below, those four motions are granted in part and denied in part.

TABLE OF CONTENTS I. RELEVANT BACKGROUND 3 A. Plaintiff's Complaint 3 B. Parties' Briefing on Defendants' Motions for Summary Judgment 4 1. Briefing on Motion Filed by Defendant D'Alberto 4 2. Briefing on Motion Filed by Defendant Jerome 7 3. Briefing on Motion Filed by Defendant ABJ Fire 9 4. Briefing on Motion Filed by Defendant Sanford & Burtis 11 C. Statements of Undisputed Material Facts 14 1. Undisputed Material Facts on D'Alberto's Motion 14 2. Undisputed Material Facts on Defendant Jerome's Motion 24 3. Undisputed Material Facts on Defendant ABJ Fire's Motion 44 4. Undisputed Material Facts on Defendant Sanford & Burtis' Motion 53 II. RELEVANT LEGAL STANDARDS 69 A. Standard Governing Motion for Summary Judgment 69 B. Standard Governing Unopposed Motions 69 C. Standards Governing Claims for Negligence, Breach of Contract and reach of Express or Implied Warranties 71 III. ANALYSIS 72 A. Defendant D'Alberto's Motion for Summary Judgment 72 B. Defendant Jerome's Motion for Summary Judgment 73 C. Defendant ABJ Fire's Motion for Summary Judgment 75 D. Defendant Sanford & Burtis' Motion for Summary Judgment 77

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, Plaintiff's Complaint asserts the following twelve claims, arising from a fire that occurred on September 4, 2007, in the kitchen of the clubhouse of Highland Park Golf Course, which destroyed that clubhouse: (1) a claim of negligence against Defendant Jerome; (2) a claim of breach of contract against Defendant Jerome; (3) a claim of breach of express or implied warranties against Defendant Jerome; (4) a claim of negligence against Defendant ABJ Fire; (5) a claim of breach of contract against Defendant ABJ Fire; (6) a claim of breach of express or implied warranties against Defendant ABJ Fire; (7) a claim of negligence against Defendant D'Alberto; (8) a claim of breach of contract against Defendant D'Alberto; (9) a claim of breach of express or implied warranties against Defendant D'Alberto; (10) a claim of negligence against Defendant Sanford & Burtis; (11) a claim of breach of contract against Defendant Sanford & Burtis; (12) a claim of breach of express or implied warranties against Defendant Sanford & Burtis. (Dkt. No. 1.) Generally, in each of their Answers, Defendants asserted cross-claims against one another. ( See Dkt. Nos. 10, 14, 15, 18.)[1]

Because the parties have, in their memoranda of law, demonstrated an accurate understanding of the factual allegations giving rise to these claims and cross-claims, the Court will not summarize those allegations in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court will discuss those allegations only where necessary below in this Decision and Order.

B. Parties' Briefing on Defendants' Motions for Summary Judgment

1. Briefing on Motion Filed by Defendant D'Alberto

Generally, in support of its motion for summary judgment, Defendant D'Alberto asserts the following seven arguments: (1) Plaintiff's witnesses, Gerald Kufta and James Valentine, should be precluded from giving expert witness testimony against D'Alberto pursuant to Fed.R.Evid. 702, because their testimony is not based upon sufficient facts or data, their testimony is not the product of reliable principles and methods, and they have not applied the principles and methods reliably to the facts of the case; (2) Plaintiff's claims against Defendant D'Alberto should be dismissed because, based on the current record (including the affidavit of engineer Mark Dempsey), no rational fact finder could conclude that having only one operational kitchen exhaust fan was a cause of, or contributing factor in, the fire; (3) Plaintiff's negligence claim against Defendant D'Alberto should be dismissed because, based on the current record, no rational fact finder could conclude that there was any detrimental reliance by Highland Park on the alleged statement by Mr. D'Alberto about cooking; (4) Plaintiff's claims against Defendant D'Alberto should be dismissed because, as an independent contractor (that was not under contract to provide routine or systematic maintenance of the fans in question), Defendant D'Alberto had no duty to warn Plaintiff of any purported design defects in the fans in question; (5) Plaintiff's claims against Defendant D'Alberto should be dismissed because, based on the current record, the sole proximate cause of any alleged problems with the inspection and maintenance was the action or inaction of Plaintiff alone, given that Plaintiff had the ultimate responsibility for inspection, maintenance and cleanliness of the ventilation control and fire protection of the commercial cooking operation, which responsibility Plaintiff never transferred in written form to another party; (6) Plaintiff's breach-of-warranty claim against Defendant D'Alberto should be dismissed because (a) the attempted repair of the exhaust fan was a service to be performed at Plaintiff's facility, not an agreement relating to the sale of goods, and (b) a claim for improper service sounds in negligence, not breach of warranty; and (7) Plaintiff's breach-of-contract claim against Defendant D'Alberto should be dismissed because (a) there was no written contract between Defendant D'Alberto and Plaintiff for the repair of the exhaust fan in question, and (b) nothing in those parties' oral communications gives rise to an oral contract involving terms that Defendant D'Alberto somehow breached, through its attempt to repair the fan, discovery that it could not do so onsite, and advice to Plaintiff to that effect. (Dkt. No. 65, Attach. 12.)

Generally, in response to Defendant D'Alberto's motion, Plaintiff asserts the following six arguments: (1) Plaintiff's witnesses, Mr. Kufta and Mr. Valentine, should not be precluded from giving expert witness testimony against D'Alberto pursuant to Fed.R.Evid. 702, because (a) preclusion should not be requested, or granted, at this time but only upon a pre-trial motion in limine, (b) in any event, both Mr. Kufta and Mr. Valentine have a scientific basis to support their testimony, which is the product of reliable principles and methods, and the reliable application of those principles and methods to the facts of the case; (2) based on the current record, a rational fact finder could conclude that having only one operative kitchen exhaust fan was a cause or contributing factor in the fire; (3) based on the current record, a rational fact finder could conclude that Plaintiff relied to its detriment on David D'Alberto's instructions; (4) based on the current record, a rational fact finder could conclude that Defendant D'Alberto had a duty to warn Plaintiff of the hazard created by its alteration of the way the air flowed under the hood of the exhaust fan in the kitchen; (5) based on the current record, a rational fact finder could conclude that Plaintiff acted responsibly to maintain the ventilation control and fire protection of its cooking when it hired Defendant D'Alberto, a company that held itself out as qualified to repair the exhaust fan; and (6) based on the current record, a rational fact finder could conclude that Defendant D'Alberto breached its contract with Plaintiff when it improperly repaired the exhaust fan. (Dkt. No. 69, Attach. 3.)

Generally, in reply to Plaintiff's response, Defendant D'Alberto asserts the following three arguments: (1) Plaintiff has not produced any scientific evidence to rebut the opinion of Mark Dempsey that having only one operable exhaust fan was not the cause of, or contributing factor in, the fire; (2) the alleged reliance upon a brief conversation in the kitchen, and one phone call the weekend before the fire, is not reasonable or sufficient for Plaintiff to claim justifiable reliance and a duty to warn; and (3) even assuming that Robert Murphy's and Joseph Nadherny's recollections of their conversations with Mr. D'Alberto were accurate, no material factual dispute would exist, sufficient to avoid the granting of summary judgment in favor of Defendant D'Alberto, because Plaintiff's witnesses still should be precluded, and there is an absence of proof on the issue of causation, the duty to warn, and reasonable reliance. (Dkt. No. 79.)

Generally, in sur-reply to Defendant D'Alberto's reply, Plaintiff asserts the following two arguments: (1) while Plaintiff withdraws its argument regarding negligence per se against Defendant D'Alberto, Plaintiff maintains its claim of negligence against Defendant D'Alberto, based on D'Alberto's alleged violations of industry standards, and its specifically instructing two of Plaintiff's employees that they could continue to use the cooking line even though it was impaired by the removal of a fan; and (2) however, Plaintiff agrees to dismiss its breach-of-warranty claims against all Defendants. (Dkt. No. 87.)

2. Briefing on Motion Filed by Defendant Jerome

Generally, in support of its motion for summary judgment, Defendant Jerome asserts the following three arguments: (1) based on the current record, Plaintiff cannot sustain a claim of negligence against Defendant Jerome because (a) Jerome had no duty to inspect anything other than the Ansul Fire Suppression System, which functioned properly at the time of the fire, (b) Jerome had no duty to warn of that which could not be perceived, (c) Jerome had no duty to warn Plaintiff of an open and obvious condition, and (d) Jerome's actions were not the proximate cause of the fire; (2) based on the current record, Plaintiff cannot sustain a claim for breach of contract against Jerome; and (3) based on the current record, Plaintiff cannot sustain a claim of breach of warranty against Jerome. (Dkt. No. 66, Attach. 4.)

Generally, in response to Defendant Jerome's motion, Plaintiff asserts the following four arguments: (1) based on the current record, there is a genuine dispute of material fact on Plaintiff's claim of negligence against Jerome, specifically, whether Jerome fulfilled its duty to Plaintiff to inspect Plaintiff's fire suppression system pursuant to "NFPA 96" and to warn Plaintiff of any non-compliant issues and the hazards associated thereto (so as to allow it to take the necessary precaution and corrections to them and avoid the harm); (2) based on the current record, there is a genuine dispute of material fact on Plaintiff's claim of negligence against Jerome, specifically, whether Jerome's failure to inspect and warn Plaintiff of the non-compliant gaps behind the ventilation hood and the non-compliant features of its fire suppression system (including but not limited to the non-liquid tight duct welds) constitutes negligence per se; (3) based on the current record, there is a genuine dispute of material fact on Plaintiff's claim of negligence, specifically, whether the acts of others constitute superseding and intervening acts to relieve Jerome of liability; and (4) based on the current record, there is a genuine dispute of material fact on Plaintiff's claims of breach of contract and breach of warranty, because of Plaintiff's status as an intended beneficiary of the agreement between Defendant ABJ Fire and Jerome. (Dkt. No. 73, Attach. 3.)

Generally, in reply to Plaintiff's response, Defendant Jerome asserts the following five arguments: (1) Jerome has no duty for any failure to warn, because (a) Plaintiff's expert has asserted only that Jerome failed to warn of the welding at the duct collar, and the gap between the hood and the wall, (b) Jerome had no duty to detect an alleged defective weld in a concealed area, (c) Jerome breached no duty to warn with respect to the "gap, " and (d) Plaintiff knew the gap existed; (2) Plaintiff's claims against Jerome are based on a flawed reading of the National Fire Protection Association ("NFPA") standard and the Court should reject Plaintiff's arguments as a matter of law; (3) it cannot be said that any actions of Jerome were the proximate cause of the fire; (4) the agreement between Plaintiff and Defendant ABJ Fire cannot sustain a claim against Defendant Jerome for breach of contract; and (5) Jerome cannot be held liable for breach of warranty. (Dkt. No. 82.)

Generally, in sur-reply to Defendant Jerome's reply, Plaintiff asserts the following two arguments: (1) while Plaintiff withdraws its argument regarding negligence per se against Defendant Jerome, Plaintiff maintains its claim of negligence against Defendant Jerome, based on Jerome's alleged violations of industry standards, and Jerome's failure to properly inspect the hood system; and (2) however, Plaintiff agrees to dismiss its breach-of-warranty claims against all Defendants. (Dkt. No. 87.)

3. Briefing on Motion Filed by Defendant ABJ Fire

Generally, in support of its motion for summary judgment, Defendant ABJ Fire asserts the following three arguments: (1) based on the current record, Defendant ABJ Fire is entitled to summary judgment on Plaintiff's claim of negligence against it, because (a) the NFPA standards contain no explicit "duty to warm" Plaintiff of any alleged "gap" between the rear of the exhaust hood and the back wall of the kitchen, (b) in any event, no such warning was required given that Plaintiff was aware of the "gap" based on its periodic cleanings of the back wall of the kitchen, located behind the cook line, and (c) because the "non-liquid tight welds at the duck collar" would not have been visible to Ansul inspectors performing a "visual inspection" in accordance with "NFPA 17A, " the existence of that alleged noncompliance cannot form the basis of liability against Defendant ABJ Fire; (2) based on the current record, Defendant ABJ Fire is entitled to summary judgement on Plaintiff's breach-of-contract claim against it, because (a) the test-and-inspection contract did not confer on Defendant ABJ Fire a duty to warn of the alleged "gap" or "non-liquid tight welds, " and (b) the breach-of-contract claim against Defendant ABJ Fire cannot be maintained where, as here, the negligence claim against it has been dismissed; and (3) based on the current record, Defendant ABJ Fire is entitled to summary judgement on Plaintiff's breach-of-warranty claim against it, because (a) nowhere has Plaintiff provided the contents or substance of any alleged express and/or implied warranties, and (b) it is settled law that, where an agreement is to provide services only, implied warranty claims cannot stand. (Dkt. No. 67, Attach. 4.)

Generally, in response to Defendant ABJ Fire's motion, Plaintiff asserts the following three arguments: (1) Defendant ABJ Fire (individually and through its contractor, Defendant Jerome) owed Plaintiff a duty to inspect - from either the floor or any other necessary position - its fire suppression system pursuant to NFPA 96 and to warn Plaintiff of the two non-compliant issues in question (i.e., the gap and non-liquid tight weld) and the hazards associated thereto, in order to allow Plaintiff to take the precautions and corrections necessary to avoid the harm; (2) Defendant ABJ Fire's failure to warn Plaintiff of the non-compliant issues with the fire suppression system, including the non-liquid tight welds and hazardous gap that existed, violated a state statute (i.e., NFPA 96, which was incorporated with the Fire Code of New York State at the time of the fire) and thus constitutes negligence per se; and (3) based on the current record, Defendant ABJ Fire is not entitled to summary judgment as to Plaintiff's breach-of-contract claim and breach-of-warranty claim against it, in part because the contract required an inspection pursuant to NFPA 96, which did not occur. (Dkt. No. 72, Attach. 3.)

Generally, in reply to Plaintiff's response, Defendant ABJ Fire asserts the following four arguments: (1) Plaintiff has failed to come forward with evidentiary proof in admissible form that Defendant ABJ Fire was negligent, because (a) any "duty to warn" of the alleged "gap" was met due to Plaintiff's awareness of that "gap, " and (b) the non-liquid tight welds were not visible to Ansul inspectors performing their examinations in accordance with NFPA 17A and thus do not give rise to a duty to warn; (2) under the circumstances, negligence per se has no application to the provisions of the NFPA contained in the Fire Code of New York State; (3) Plaintiff has failed to rebut Defendant ABJ Fire's argument that it is entitled to summary judgment on Plaintiff's breach-of-contract claim for the two reasons described in Defendant ABJ Fire's memorandum of law in chief; and (4) summary judgment is appropriate with regard to Plaintiff's claim of breach-of-warranty against Defendant ABJ Fire, because, as explained earlier, it is settled law that, where an agreement is to provide services only, implied warranty claims cannot stand. (Dkt. No. 83.)

Generally, in sur-reply to Defendant ABJ Fire's reply, Plaintiff asserts the following two arguments: (1) while Plaintiff withdraws its argument regarding negligence per se against Defendant ABJ Fire, Plaintiff maintains its claim of negligence against Defendant ABJ Fire, based on ABJ Fire's alleged violations of industry standards, and ABJ Fire's failure to properly inspect the hood system; and (2) however, Plaintiff agrees to dismiss its breach-of-warranty claims against all Defendants. (Dkt. No. 87.)

4. Briefing on Motion Filed by Defendant Sanford & Burtis

Generally, in support of its motion for summary judgment, Defendant Sanford & Burtis asserts the following five arguments: (1) because Defendant Sanford & Burtis performed a recharge of the fire suppression system in question on June 28, 2006, any claim of negligence arising from that recharge (which was filed in this Court on September 30, 2009) is barred by the governing three-year statute of limitations, as a matter of law; (2) because Defendant Sanford & Burtis performed its final semi-annual inspection of the Ansul fire suppression system in question in or around February of 2001 (and never performed any such inspection during its recharge in July of 2006, which occurred as a courtesy to Defendant Jerome), any claim of breach of contract or breach of warranty (which were filed in this Court on September 30, 2009) are barred by the governing six-year statute of limitations, as a matter of law; (3) because the evidence conclusively establishes that the actions of others constituted superseding intervening acts that relieved Sanford & Burtis of any liability as a matter of law, Plaintiff's claim for negligence against Defendant Sanford & Burtis should be dismissed; (4) because Defendant Sanford & Burtis owed no duty to warn of any issues with the hood, duct, or ventilation system (which Sanford & Burtis was never contractually obligated to install, inspect or maintain), Plaintiff's causes of action against Sanford & Burtis should be dismissed; and (5) Plaintiff's own expert has testified that (a) one of the non-compliant issues with the hood (i.e., the non-liquid tight weld) was not visible to an inspector and (b) if Highland Park was aware of the other non-compliant issue (i.e., the alleged gap), then Sanford & Burtis had no duty to warn of it. (Dkt. No. 68, Attach. 4.)

Generally, in response to Defendant Sanford & Burtis's motion, Plaintiff asserts the following five arguments: (1) because Plaintiff's negligence claim began to accrue on the date of injury (i.e., September 4, 2007), not the date on which Defendant Sanford & Burtis completed its work (i.e., July of 2006), that negligence claim is timely under the governing three-year statute of limitations; (2) because admissible record evidence exists from which a rational fact-finder could conclude Defendant Sanford & Burtis performed a contractual inspection of the fire suppression system in question during the "recharge" that occurred on June 28, 2006, any claim of breach of contract arising from that event is timely under the governing six-year statute of limitations; (3) based on the current record, there is a genuine dispute of material fact as to whether the acts of others constituted superseding intervening acts that relieved Sanford & Burtis of any liability as a matter of law on Plaintiff's negligence claim against Sanford & Burtis; (4) Defendant Sanford & Burtis owed Plaintiff a duty to inspect its fire suppression system pursuant to NFPA 96, and to warn Plaintiff of any non-compliant issues and the hazards associated thereto, to allow it to take the necessary precautions and corrections to the same and avoid the harm; and (5) Defendant Sanford & Burtis' failure to warn Plaintiff of the non-compliant issues of the fire suppression system, including but not limited to the non-liquid tight welds and hazardous gap that existed, constituted a violation of a state statute and thus negligence per se. (Dkt. No. 71, Attach. 3.)

Generally, in reply to Plaintiff's response, Defendant Sanford & Burtis asserts the following four arguments: (1) Plaintiff's claims for breach of contract against Defendant Sanford & Burtis are time barred; (2) Plaintiff has not demonstrated that an issue of fact exists with regard to Defendant Sanford & Burtis' argument that subsequent intervening acts, including acts of Plaintiff's insured, relieved Sanford & Burtis of any liability for Plaintiff's damages; (3) Defendant Sanford & Burtis owed no duty to inspect the ventilation system for the defects alleged by Plaintiff's expert and, even assuming that Sanford & Burtis did conduct an inspection, that inspection was limited to inspecting the Ansul fire suppression system only for defects that would prevent its operation in the event of a fire within the coverage area; and (4) because Defendant Sanford & Burtis did not violate any state statute imposing a specific duty on it, Plaintiff's argument regarding negligence per se is without merit. (Dkt. No. 84.)

Generally, in sur-reply to Defendant Sanford & Burtis's reply, Plaintiff asserts the following two arguments: (1) while Plaintiff withdraws its argument regarding negligence per se against Defendant Sanford & Burtis, Plaintiff maintains its claim of negligence against Defendant Sanford & Burtis, based on Sanford & Burtis' alleged violations of industry standards, and Sanford & Burtis' failure to properly inspect the hood system; and (2) however, Plaintiff agrees to dismiss its breach-of-warranty claims against all Defendants. (Dkt. No. 87.)

C. Statements of Undisputed Material Fact

1. Undisputed Material Facts on Defendant D'Alberto's Motion

The following facts have been asserted and supported by Defendant D'Alberto in its Rule 7.1 Statement and either expressly admitted by Plaintiff or denied by Plaintiff without a supporting record citation in its Rule 7.1 Response. ( Compare Dkt. No. 65, Attach. 11 [Def. Alberto's Rule 7.1 Statement] with Dkt. No. 69, Attach. 2 [Plf.'s Rule 7.1 Response].) Docket citations given below are to the screen number shown on the docket, not the page number listed on the document.

1. A fire occurred at the clubhouse of Highland Park Golf Course, Inc. ("Highland Park") on September 4, 2007, causing damage to the clubhouse.

2. For about three years before the fire, D'Alberto Refrigeration ("D'Alberto") had been doing preventative maintenance service for the heating and cooling systems (known in the trade as "HVAC") at the Highland Park golf club facility.

3. On January 13, 2007, D'Alberto and Highland Park entered into a written service agreement that specified D'Alberto was to provide preventative maintenance for certain HVAC equipment two times annually (April and October) for a total price of $300.00 annually in two installments of $150.00 each.

4. In addition, Highland Park would from time to time ask D'Alberto to do other work at the Highland Park facility.

5. There was no written contract for any of the other work.

6. There were two kitchen exhaust fans on the roof over the kitchen.

7. The fans were about five and one half feet apart and approximately ten feet above the kitchen cooking line.

8. The fans, duct work, hood and cooking line were not part of the HVAC equipment and were not covered by the preventative maintenance service agreement.

9. Previously, Highland Park had asked D'Alberto to look at and repair one of the kitchen exhaust fans in April 2006.

10. At that time, when he took the fan apart, the president of D'Alberto - David D'Alberto - observed what he believed to be "an old beat up dried out belt" that appeared to him "as though it had been sitting there for a long time." ( Compare Dkt. No. 65, Attach. 1, at ¶ 3 [D'Alberto Affid., asserting fact] with Dkt. No. 59, Attach. 14, at 24 [Janowski Dep., not controverting fact].)

11. Based on that observation, Mr. D'Alberto believed that the fan had not been running for a quite a while. ( Compare Dkt. No. 65, Attach. 1, at ¶ 3 [D'Alberto Affid.] with Dkt. No. 59, Attach. 14, at 24 [Janowski Dep.] and Dkt. No. 59, Attach. 22, at 15 [Nadherny Dep.].)

12. Mr. D'Alberto repaired the fan by replacing a pulley and installing a new belt. ( Compare Dkt. No. 65, Attach. 1, at ¶ 3 [D'Alberto Affid.] with Dkt. No. 69, Attach. 2, at ¶ 13 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

13. No one stated to Mr. D'Alberto that the fan had not been working for an extended period of time, or that the cooking procedures in the kitchen had been altered or changed as a result of that fact. ( Compare Dkt. No. 65, Attach. 1, at ¶ 3 [D'Alberto Affid., asserting fact] with Dkt. No. 59, Attach. 14, at 24 [Janowski Dep., not controverting fact].)

14. Mr. D'Alberto was not aware of other problems with the kitchen exhaust fans until the weekend before the fire of September 4, 2007. ( Compare Dkt. No. 65, Attach. 1, at ¶ 4 [D'Alberto Affid.] with Dkt. No. 69, Attach. 2, at ¶ 15 [Plf.'s Rule 7.1 Response, not citing any record evidence in support of denial].)

15. On Tuesday, September 4, 2007, Mr. D'Alberto went to Highland Park to see if the fan could be repaired, arriving at approximately 12:30 pm. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 69, Attach. 2, at ¶ 16 [Plf.'s Rule 7.1 Response, not citing any record evidence in support of denial].)

16. Mr. D'Alberto went up on the roof to check out the fan and found it was the same fan he had repaired in April 2006.

17. Mr. D'Alberto took the cover or shroud off the fan to see what was wrong.

18. The fan had a broken bearing and broken belt. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 62, Attach. 6, at 47-48 [Dempsey Dep., not controverting fact but, at most, merely disclaiming knowledge of fact].)

19. John Janowski joined Mr. D'Alberto on the roof.

20. Mr. D'Alberto stated that he would not be able to do anything with the fan there that day, and that the fan had to go back to the shop for repair. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 59, Attach. 14, at 35 [Janowski Dep.].)

21. Mr. Janowski told Mr. D'Alberto to do whatever had to be done. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 59, Attach. 14, at 34-45 [Janowski Dep., not actually controverting fact].)

22. After receiving what he perceived to be clearance from Mr. Janowski, Mr. D'Alberto removed the fan assembly and blower, and took the assembly and blower back to the shop for repair. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 59, Attach. 14, at 34-45 [Janowski Dep., not controverting fact] and Dkt. No. Dkt. No. 69, Attach. 5, at 14-15 [Report of Investigative Associates, not controverting fact].)

23. The other kitchen exhaust fan was operating normally that day. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 69, Attach. 2, at ¶ 24 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

24. Mr. D'Alberto was there about 10 to 15 or perhaps 20 minutes that day. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 69, Attach. 2, at ¶ 25 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

25. While he was on the roof inspecting and working on the fan that day, Mr. D'Alberto did not smell any cooking and did not observe any smoke or heat coming through the duct. ( Compare Dkt. No. 65, Attach. 1, at ¶ 5 [D'Alberto Affid.] with Dkt. No. 69, Attach. 2, at ¶ 27 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

26. D'Alberto had no written agreement with Highland Park with regard to any aspect of the kitchen fire suppression system at Highland Park.

27. D'Alberto had no obligation to inspect the fire suppression system at Highland Park. ( Compare Dkt. No. 61, Attach. 12, at 78 [Valentine Dep.] with Dkt. No. 69, Attach. 2, at ¶ 29 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

28. D'Alberto had no written obligation to do anything with respect to the fire suppression system at Highland Park.

29. Pursuant to Paragraph 4.1.5. of NFPA 96, Highland Park had the "ultimate responsibility" for inspection and maintenance of the ventilation control and fire protection of the commercial cooking operation unless the responsibility was transferred in written form to another party. ( Compare Dkt. No. 61, Attach. 12, at 79-80 [Valentine Dep., asserting fact] and Dkt. No. 61, Attach. 9, at 47 [NFPA 96, asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 31 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

30. The ultimate responsibility of Highland Park referred to in the preceding sentence was not transferred in written form to D'Alberto. ( Compare Dkt. No. 61, Attach. 12, at 80-81 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 32 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

31. D'Alberto did not have a written contract relating to the repair of the exhaust fan.

32. The involvement of D'Alberto with the kitchen exhaust systems was the repair of the fan in April 2006, the call about a fan over the September 2007 Labor Day weekend, and the attempt to repair on September 4, 2007.

33. That day, before the fire, the Highland Park cook, Joseph Nadherny, had just completed partly cooking chicken in preparation for the upcoming meal service.

34. Mr. Nadherny had partly cooked a bag (10-13 pieces) of eight-ounce half breasts shortly before the fire.

35. Total cook time for the chicken had been five to seven minutes.

36. The staff of Highland Park was not cooking to serve anyone in the dining room immediately before the fire.

37. None of the chicken was served that day. ( Compare Dkt. No. 59, Attach. 22, at 48 [Nadherny Dep.] with Dkt. No. 69, Attach. 2, at ¶ 40 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

38. That day, before the fire, nothing else had been cooked in the kitchen.

39. Cooking had been very minimal.

40. There had been no indication of anything abnormal in the operation of the grill, microwave, convection oven or deep fryer. ( Compare Dkt. No. 59, Attach. 22, at 55-56 [Nadherny Dep., asserting fact] with Dkt. No. 59, Attach. 22, at 28 [Nadherny Dep., not controverting fact].)

41. No smoke had been observed that day (before the fire), nor had any smoke been observed when the fan had not been operating over the prior weekend.

42. As Mr. Nadherny was cooking the chicken on the char broiler, he felt warmer than he would have felt had the fan been on (or the char broiler had not been on), but he did not feel "unusually" warm. ( Compare Dkt. No. 59, Attach. 22, at 119-20 [Nadherny Dep., asserting fact] and Dkt. No. 63, Attach. 2, at 31 [Murphy Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 45 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

43. There was nothing on the grill immediately before the fire. ( Compare Dkt. No. 59, Attach. 22, at 31-33 [Nadherny Dep., asserting fact, as well as the fact that he had cleaned the grill before going outside for a cigarette] and Dkt. No. 63, Attach. 2, at 113 [Murphy Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 47 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

44. No unusual odors or fumes had been observed that day or when the fan was not operating over the prior weekend. ( Compare Dkt. No. 63, Attach. 2, at 31, 53-54 [Murphy Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 48 [Plf.'s Rule 7.1 Response, not citing any evidence controverting this fact].)

45. No one from Highland Park said anything to Plaintiff's fire investigator Gerald Kufta ("Kufta") about noticing any odor, heat or fumes backing up before the fire. ( Compare Dkt. No. 59, Attach. 25, at 84 [Kufta Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 49[Plf.'s Rule 7.1 Response, admitting this fact] and Dkt. No. 63, Attach. 2, at 31 [Murphy Dep., not controverting fact of what Kufta was, or was not, told].)

46. Mr. Kufta did not inquire about whether the kitchen had been used in the past with only one operating fan. ( Compare Dkt. No. 59, Attach. 25, at 92 [Kufta Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 50 [Plf.'s Rule 7.1 Response, admitting this fact, and not citing any record evidence that actually controverts the fact].)

47. Mr. Kufta did not do any calculations to determine whether the ambient air would have been lowered or cooler if both fans had been operating. ( Compare Dkt. No. 59, Attach. 25, at 88-89 [Kufta Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 52 [Plf.'s Rule 7.1 Response, admitting this fact, and not citing any record evidence that actually controverts the fact].)

48. Mr. Kufta did not calculate the airflow rate into the duct from which the fan assembly had been removed in his evaluation of the fire.

49. The airflow rate into the duct from which the fan assembly had been removed could be calculated.

50. Other than his experience, Mr. Kufta cannot provide any scientific basis for his opinion that, on the day of the fire, the airflow up from the cookline was reduced considerably because one fan was not operating (and because of the amount of air that the other fan was drawing through the other vent). ( Compare Dkt. No. 59, Attach. 25, at 96 [Kufta Dep., asserting fact] and Dkt. No. 59, Attach. 25, at 16, 88-89 [Kufta Dep., not actually controverting fact].)

51. Mr. Kufta did not do any calculations to determine to what extent, if at all, the airflow was changed with only one operating fan. ( Compare Dkt. No. 59, Attach. 25, at 127 [Kufta Dep., asserting fact] and Dkt. No. 59, Attach. 25, at 16, 88-89 [Kufta Dep., not actually controverting fact].)

52. In his deposition, Mr. Kufta testified that Plaintiff's witness, James Valentine, did calculations of the airflow rate into the duct from which the fan assembly had been removed. ( Compare Dkt. No. 59, Attach. 25, at 124-25 [Kufta Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 57 [Plf.'s Rule 7.1 Response, not citing any specific record evidence controverting the fact].)

53. Mr. Valentine did not do the precise calculations referred to by Mr. Kufta (i.e., calculations of the necessary airflow rate and reduced airflow rate into the duct from which the fan assembly had been removed); rather, Mr. Valentine relied on the fact that, based on an industry standard formula for designing wall-mounted ventilation hoods (i.e., length times width times 100), the size of the two hoods in question indicated that 4800 cubic feet per minute would have been required for proper air flow (and thus the non-operation of one of the two fans would have resulted something less than the necessary 4800 cubic feet of air flow per minute in the remaining fan). ( Compare Dkt. No. 61, Attach. 12, at 96, 105 [Valentine Dep., asserting former fact] with Dkt. No. 61, Attach. 7, at 87-88 [Valentine Dep., not controverting former fact, and asserting latter fact] and Dkt. No. 61, Attach. 12, at 92-93 [Valentine Dep., not controverting former fact, and asserting latter fact].)

54. Mr. Valentine had reviewed Mr. Kufta's report before it was finalized; and Mr. Valentine did not have any objections to anything in it.

55. Mr. Valentine at least in part relied upon Mr. Kufta's report when he prepared his report.

56. Mr. Valentine does not cite any specific code or standard to support the statement in paragraph "5" of his report that Mr. D'Alberto failed to advise Highland Park of the hazard of cooking with only one operational exhaust fan. ( Compare Dkt. No. 61, Attach. 12, at 81-82 [Valentine Dep., asserting fact] with Dkt. No. 61, Attach. 7, at 18 [Valentine Dep., not controverting fact] and Dkt. No. 61, Attach. 12, at 82-83 [Valentine Dep., not controverting fact].)

57. In his deposition, Mr. Valentine testified that, if Mr. D'Alberto did not say anything about whether or not they should be cooking with only one operational exhaust fan, Mr. Valentine would not have rendered an opinion supporting a claim against Mr. D'Alberto. ( Compare Dkt. No. 61, Attach. 12, at 81-82, 84 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 62 [Plf.'s Rule 7.1 Response, admitting fact, except to the extent it includes a legal conclusion].)

58. Mr. Valentine's opinion supporting a claim against Mr. D'Alberto is based entirely on his supposition that, in response to a question from the cook (Mr. Nadherny) regarding whether he could continue to cook with only one operational exhaust fan, Mr. D'Alberto responded that he could continue to cook, albeit lightly on only one side of the grill. ( Compare Dkt. No. 61, Attach. 12, at 83-84, 89 [Valentine Dep., asserting fact] with Dkt. No. 59, Attach. 22, at 28 [Nadherny Dep., not controverting fact] and Dkt. No. 63, Attach. 2, at 35 [Murphy Dep., not controverting fact].)

59. Mr. Valentine does not cite any specific code or standard to support Plaintiff's claim against Defendant D'Alberto (other than the industry standard formula for designing wall-mounted ventilation hoods-length times width times 100-which indicates that the airflow through the two hoods in question would have been 4800 cubic feet per minute, had they both been working). ( Compare Dkt. No. 61, Attach. 12, at 84 [Valentine Dep., asserting fact] with Dkt. No. 61, Attach. 7, at 18 [Valentine Dep., not controverting fact] and Dkt. No. 61, Attach. 12, at 82-83 [Valentine Dep., not controverting fact].)

60. Mr. Valentine did not do any calculations to determine the amount of the reduction of cubic feet of air movement resulting from having only one operational exhaust fan. ( Compare Dkt. No. 61, Attach. 12, at 96 [Valentine Dep., asserting fact] with Dkt. No. 61, Attach. 7, at 87 [Valentine Dep., not controverting fact] and Dkt. No. 61, Attach. 12, at 93 [Valentine Dep., not controverting fact].)

61. Moreover, Mr. Valentine does not intend to do any calculations like those (at least not in this case). ( Compare Dkt. No. 61, Attach. 12, at 96-97 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 73 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

62. In order to precisely calculate the cubic feet of air movement per minute from a fan, it is necessary to know (among other things) the horsepower of the fan motor and the size of the blades of the fan (although it is possible to approximate the cubic feet of air movement per minute from a fan by multiplying its length times its width times 100). ( Compare Dkt. No. 61, Attach. 12, at 94-95 [Valentine Dep., asserting fact] with Dkt. No. 61, Attach. 7, at 83 [Valentine Dep., not controverting fact].)

63. Mr. Valentine did not know either the horsepower of the motor or the size of the fan blades. ( Compare Dkt. No. 61, Attach. 12, at 95 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 67 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

64. In his deposition, Mr. Valentine testified that the "criteria" or "formula" he used to determine airflow moving through a system was a "rule of thumb, " which was "non-scientific" and "very simplistic" in nature. ( Compare Dkt. No. 61, Attach. 12, at 93, 95-96 [Valentine Dep., asserting fact] and Dkt. No. 61, Attach. 7, at 87-88 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 68 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

65. Mr. Valentine did not attempt to calculate what air movement would have been required if all the appliances in the kitchen had been in operation. ( Compare Dkt. No. 61, Attach. 12, at 97 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 70 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

66. Mr. Valentine did not attempt to calculate what air movement would have been required if various of the appliances in the kitchen had been in operation. ( Compare Dkt. No. 61, Attach. 12, at 97 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 69 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

77. Mr. Valentine did not attempt to calculate what air movement would have been required if there had been just some chicken being cooked the day of the fire. ( Compare Dkt. No. 61, Attach. 12, at 97 [Valentine Dep., asserting fact] with Dkt. No. 69, Attach. 2, at ¶ 71 [Plf.'s Rule 7.1 Response, not citing any record evidence disputing fact].)

2. Undisputed Material Facts on Defendant Jerome's Motion

The following facts have been asserted and supported by Defendant Jerome in its Rule 7.1 Statement and either expressly admitted by Plaintiff or denied by Plaintiff without a supporting record citation in its Rule 7.1 Response. ( Compare Dkt. No. 66, Attach. 1 [Def. Jerome's Rule 7.1 Statement] with Dkt. No. 73, Attach. 2 [Plf.'s Rule 7.1 Response].) Again, docket citations given below are to the screen number shown on the docket, not the page number listed on the document.

1. Plaintiff filed this action as subrogee of its insured, Highland Park.

2. The subrogation claim was made in regard to a fire that occurred on September 4, 2007 ("the fire"), at Highland Park's kitchen and clubhouse.

3. At the time of the fire, the kitchen at Highland Park contained a stainless steel ventilation hood, which was over the open grate grill of the cooking line, and which was (intended to be) protected by an Ansul fire suppression system ("Ansul system"). ( Compare Dkt. No. 57, Attach. 1, at ¶ 18 [Plf.'s Compl., asserting fact] with Dkt. No. 60, Attach. 1, at 50 [Valentine Affid., not controverting fact].)

4. On September 4, 2007, the fire started on the open grate grill in the commercial kitchen of the Highland Park clubhouse. ( Compare Dkt. No. 57, Attach. 1, at ¶ 18 [Plf.'s Compl., asserting fact] with Dkt. No. 73, Attach. 2, at ¶ 12 [Plf.'s Rule 7.1 Response, not supporting denial with specific record citation].)

5. As a result of the fire, Plaintiff initially paid $2, 196, 592.11 to Highland Park. The total of this amount was $2, 254, 742.12 as of June 3, 2010.

6. From 1987 to 2001, Sanford & Burtis performed Ansul system inspections at Highland Park. ( Compare Dkt. No. 58, Attach. 27, at 62, 193 [Burtis Dep., asserting fact] with Dkt. No. 73, Attach. 2, at ¶ 14 [Plf.'s Rule 7.1 Response, not supporting denial with accurate record citations].)

7. On June 24, 2005, a letter agreement was entered into by Highland Park and ABJ Fire regarding a quote for two semi-annual inspections of the Ansul system at Highland Park ("the 2005 agreement"). ( Compare Dkt. No. 58, Attach. 2, at 2 [Ltr. of June 24, 2005] with Dkt. No. 73, Attach. 2, at ¶ 15 [Plf.'s Rule 7.1 Response, not supporting denial with accurate or specific record citations].)

8. On or about July 21, 2005, at ABJ Fire's request, Jerome Fire Equipment Company ("Jerome") submitted a quote to perform a semi-annual inspection of the Ansul system at Highland Park for a price of $80.

9. ABJ Fire accepted this quote from Jerome by telephone and then requested Jerome perform an inspection of the Ansul system at Highland Park.

10. The arrangement between Jerome and ABJ Fire did not call for specific inspection dates of the Ansul system. ( Compare Dkt. No. 59, Attach. 15, at 68 [Rizzo Dep., asserting fact] with Dkt. No. 73, Attach. 2, at ¶ 18 [Plf.'s Rule 7.1 Response, not supporting denial with accurate or specific record citations].)

11. ABJ Fire would schedule semi-annual Ansul system inspections by contacting Jerome and determining a date that was agreeable with Highland Park. ( Compare Dkt. No. 59, Attach. 15, at 57, 68 [Rizzo Dep., asserting fact] with Dkt. No. 73, Attach. 2, at ¶ 19 [Plf.'s Rule 7.1 Response, not supporting denial with accurate or specific record citations].)

12. Jerome first performed an Ansul inspection at Highland Park on July 27, 2005. ( Compare Dkt. No. 66, Attach. 1, at ¶ 20 [Def. ABJ Fire's Rule 7.1 Statement, asserting fact supported by accurate record citations] with Dkt. No. 73, Attach. 2, at ¶ 20 [Plf.'s Rule 7.1 Response, not supporting denial with accurate or specific record citation].)

13. The next Ansul system inspection performed by Jerome at ABJ Fire's request was on February 20, 2006. ( Compare Dkt. No. 66, Attach. 1, at ¶ 21 [Def. ABJ Fire's Rule 7.1 Statement, asserting fact supported by accurate record citations] with Dkt. No. 73, Attach. 2, at ¶ 21 [Plf.'s Rule 7.1 Response, not supporting denial with accurate or specific record citation].)

14. Sometime in 2006 a fire occurred at the Highland Park kitchen ("the 2006 fire") when butter boiled over the side of a pan and caught fire.

15. During the 2006 fire, the Ansul system automatically triggered along the entire cooking line ...


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