DECISION AND ORDER
JEFFREY K. OING, J.S.C.
On November 28, 2005, Kevin Streaks, an employee of third-party defendant Tri-Star Construction Corp. ("Tri-Star"), entered the townhouse owned by plaintiff 5 East 80th St. LLC ("5 East") located at 5 East 80th Street and discovered water cascading down the walls. After shutting off the water, Streaks and Robert Laquidara, Tri-Star's site superintendent, discovered that the water was coming from a burst manifold in the irrigation system on the fifth floor of the townhouse. The system had not been drained and winterized, and the water in the pipes allegedly froze and burst, causing the flooding that damaged the townhouse. Aby Rosen ("Rosen"), the townhouse's tenant, submitted a claim for damages to plaintiff Great Northern Insurance Company ("Great Northern"), which Great Northern paid.
The Instant Actions
Great Northern commenced a subrogation action (Action No. 1) against defendants Estelle Irrigation Corp. ("Estelle"), Town & Gardens, Ltd. ("Town & Gardens"), and The Window Box MG Ltd ("Window Box"). Simultaneously, 5 East commenced a separate action (Action No. 2) against Window Box and Estelle. Subsequently, Window Box filed a third-party complaint against Tri-Star in Action No. 2, the 5 East action.
In an order, dated June 6, 2010, Justice Marylin G. Diamond consolidated the two actions for joint discovery. Great Northern discontinued Action No. 1 against Town & Garden on March 26, 2012. Window Box then filed a third-party complaint against defendant RFR Realty LLC ("RFR") on August 17, 2012.
Summary Judgment Motions
Defendants, Estelle (Action No. 1, Mot. Seq. No. 004), Window Box (Action No. 2, Mot. Seq. No. 003) and third-party defendant Tri-Star (Action No. 2, Mot. Seq. No. 004) separately move, pursuant to CPLR 3212, for summary judgment dismissing the complaints and third-party complaint, respectively.
Plaintiff 5 East moves, pursuant to CPLR 1010, to dismiss Window Box's third-party complaint against RFR (Action No. 2, Mot. Seq. No. 005).
Motion seq. no. 004 of Action No. 01 and nos. 003, OOA, 005 of Action No. 02 are consolidated herein for disposition.
In 2003, Rosen hired Tri-Star to perform a gut renovation of the townhouse. In connection with the project, Tri-Star hired Town & Gardens to install an irrigation system to carry water out of the house to various gardens, including the fifth floor terrace garden. Tri-Star itself had no involvement with the installation or maintenance of the irrigation system (Laquidara 1/13/10 EBT at pp. 17-20) . A subcontractor. Citron Plumbing, installed the lines leading out to the irrigation system. Rosen then hired Window Box to implement the architect's plans for the townhouse's gardens and to maintain them once they were installed (Turner 4/14/10 EBT at pp. 17-18). Tri-Star completed all substantive work on the gut renovation in 2004, save some minor items (Laquidara 1/13/10 EBT at pp. 13-14).
In May 2005, Rosen terminated Town & Gardens. In June 2005, Window Box contacted Estelle with a request for repairs to some piping on the sixth floor (Keane 1/27/10 EBT at pp. 17-19). Estelle's owner, Declan Keane, came to the townhouse to inspect the system. Estelle's workers subsequently returned to the townhouse on several occasions to, inter alia, repair piping on the sixth floor, adjust the water flow, and fix timers (Id. at pp. 23, 26, 32-33). Keane testified at his EBT that Estelle only sent workers when requested ...