Castlepoint Insurance Company, as subrogee of Linda Trager, Plaintiff-Respondent-Appellant,
Wendy Moore, et al., Defendants-Appellants, B & P Chimney Cleaning and Repair Company, Inc., Defendant-Respondent-Respondent.
Devitt Spellman Barrett, LLP, Smithtown (John M. Denby of counsel), for appellants.
Law Office of Steven G. Fauth, LLC, New York (Steven G. Fauth of counsel), for respondent-appellant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Gerard Benvenuto of counsel), for respondent-respondent.
Mazzarelli, J.P., Acosta, Renwick, Richter, Gische, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered January 10, 2012, which denied defendants Wendy Moore and Justin Moore's motion for summary judgment seeking to dismiss the complaint as against them, granted defendant B & P Chimney Cleaning and Repair Co. Inc.'s motion for summary judgment dismissing the complaint as against it, and, upon a search of the record, dismissed the Moore defendants' and B & P's cross claims against each other, unanimously modified, on the law, to deny B & P's motion, to reinstate the Moore defendants' and B & P's cross claims against each other, and otherwise affirmed, without costs.
The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P launched an instrument of harm or exacerbated a dangerous condition by either failing to inspect or inadequately inspecting the Moore defendants' firebox, or "certif[ying]" to the Moore defendants that the fireplace was safe to use by stating that it was "good to go, " especially since the Moore defendants testified that once their neighbor told them that smoke entered into her home, they had stopped using the fireplace and only resumed use thereof after B & P completed its work (see Stiver v Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257 ; Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 140-141 ) Ocampo v Abetta Boiler & Welding Serv., Inc., 33 A.D.3d 332 [1st Dept 2006]).
In light of the foregoing, Supreme Court should not have searched the record and dismissed the Moore defendants' cross claims against B & P and B & P's cross claims against the Moore defendants, because their negligence and apportioned share of liability, if any, is a question of fact for the jury to resolve (see Cabrera v Hirth, 8 A.D.3d 196, 197 [1st Dept 2004], lv dismissed 4 N.Y.3d 794 ). Moreover, the issue of B & P's liability for common-law contribution and/or indemnification and contractual indemnification as between it and the Moore defendants was not raised by either B & P's motion for summary judgment nor the Moore defendants' motion for summary judgment and, therefore, Supreme Court did not have the authority to search the record on that issue and award summary judgment to B & P dismissing the Moore defendants' cross claims (see CPLR 3212[b]; Dunham v Hilco Constr. Co., 89 N.Y.2d 425, 429-430 ; Quizhpe v Luvin Constr., 70 A.D.3d 912 [2d Dept 2010]; Filannino v Triborough Bridge and Tunnel Auth., 34 A.D.3d 280, 281 [1st Dept 2006], appeal dismissed 9 N.Y.3d 862 ). 
The Moore defendants' motion seeking to dismiss the complaint as against them was properly denied. Questions of fact exist as to whether they had notice of the dangerous condition, and whether, under the circumstances, they exercised reasonable care in attempting to remedy it. The Moore defendants concede that in August 2008, they received a home inspection report from Safe Haven Inspections which stated that their chimney/brick/ mortar was deteriorated, recommended evaluation and repairs by a licensed contractor, stated that the interior of the flue was not inspected, and recommended that they "retain a qualified chimney sweep to clean and evaluate the flue." The report also stated that their fireplaces "need a full evaluation by a fireplace specialist before any operation, " recommended evaluation and repairs by a licensed contractor, explicitly noted that this "is a safety hazard - correction is needed, " recommended installing a "safety spacer on damper when gas logs are present, " and recommended "cleaning the debris and further evaluation." Considering this in conjunction with the undisputed testimony that the Moore defendants' neighbor told them that smoke entered her daughter's bedroom when the Moore's lit a fire, and that Trager told them that "there is something about smoke kicking back into the house, " questions of fact as to notice abound (see Piacquadio v Recine Realty Corp., 84 N.Y.2d 967 ; Toner v National R.R. Passenger Corp., 71 A.D.3d 454, 455 [1st Dept 2010]). Contrary to the Moore defendants' contention, the foregoing certainly constitutes more than a mere "general awareness" that a hazardous condition "may be present" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 838 ).
Finally, since the scope and breadth of B & P's engagement is unclear on this record, and its employee who inspected and repaired the Moore's fireplace testified that the Moore defendants never gave him a copy of the Safe Haven report, and that the only issue they discussed with him was that smoke would go into the neighbor's residence when they lit the fireplace, so he "didn't really focus on the firebox because" of what the Moore defendants told him, a question of fact exists as to whether the Moore defendants acted reasonably in attempting to remedy the dangerous condition (see Brown v New York Marriot Marquis Hotel, 95 A.D.3d 585 [1st Dept 2012]; Boderick v RY Mgt. Co., Inc., 71 A.D.3d 144 [1st Dept 2009]).
Trager did not assert below that she was entitled to relief against B & P as a third-party beneficiary to the contract, and accordingly should not be granted relief on this basis on appeal.
The Decision and Order of this Court entered herein on April 9, 2013 is hereby recalled and vacated (see M-2886 ...