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Public Administrator of Bronx County v. 485 E. 188Th St. Realty Corp.

Supreme Court of New York, First Department

February 18, 2014

Public Administrator of Bronx County, etc., Plaintiff-Respondent,
v.
485 East 188th Street Realty Corp., et al., Defendants-Appellants. [And A Third-Party Action] T.C. Dunham Paint Company, Inc., Second Third-Party Plaintiff-Appellant, Appula Management Corp., Second Third-Party Defendant-Appellant. New Palace Painters Supply Co., Inc., Third Third-Party Plaintiff-Appellant, Appula Management Corp., Third Third-Party Defendant-Appellant. Public Administrator of Bronx County, etc., Plaintiff, 485 East 188th Street Realty Corp., et al., Defendants, 485 East 188th Street Realty Corp., Third-Party Plaintiff-Appellant, Appula Management Corp., Third-Party Defendant-Respondent. [And Other Third-Party Actions] Defendant/third-party plaintiff 485 East 188th Street Realty Corp., appeals from an order of the Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about April 19, 2010, which, to the extent appealed from as limited by the brief, sua sponte dismissed said party's third-party complaint. Defendant/third-party plaintiff 485 East 188th Street Realty Corp., defendant/third third-party plaintiff New Palace Painters Supply Co., Inc., defendant/second third-party plaintiff T.C. Dunham Paint Company, Inc., and second third-party/third third-party defendant Appula Management Corp., appeal from an order of the same court and Justice, entered June 13, 2012, which, to the extent appealed from as limited by the briefs, denied defendant New Palace Painters Supply Co., Inc.'s motion for summary judgment dismissing as against it the causes of action for negligence and strict liability based on failure to warn, denied defendant T.C. Dunham Paint Company, Inc.'s motion for summary judgment dismissing as against it the causes of action for negligence, failure to warn, and defective condition, and denied as having previously been granted 485 East's motion to dismiss all cross claims against it by Dunham and third-party defendant Appula Management Corp. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis of counsel), for 485 East 188th Street Realty Corp., appellant.

Rosenbaum & Taylor, P.C., White Plains (Dara L. Rosenbaum of counsel), for New Palace Painters Supply Co., Inc., appellant.

Thomas Torto, New York (Jason Levine of counsel), for T.C. Dunham Paint Company, Inc., appellant.

Linda A. Stark, New York, for Appula Management Corp., appellant. Law Offices of Marc A. Seedorf, Bronx (Marc A. Seedorf of counsel), for respondent.

Peter Tom, J.P. David Friedman Rolando T. Acosta Karla Moskowitz Judith J. Gische, JJ.

GISCHE, J.

This personal injury and wrongful death action arises from a flash fire in which Ferrel Carino, a/k/a Jose Carino, was severely burned; he subsequently passed away. Carino's estate is represented in this case by the Public Administrator.

On July 26, 2006, while Carino was supervising a work crew refinishing wood floors in apartment 1A at a building owned by defendant 485 East 188th Street Realty Corp. (485 East), the products they were applying suddenly ignited. Carino was seriously burned in the fire and passed away only weeks later. Carino was employed by Appula Management Corp., which was defendant 485 East's residential property management company. The work crew included Victor Marache, who brought separate actions for his own injuries, and Danny Carino. Vito Mangiaelli was the sole owner and officer of both 485 East and Appula. He hired the work crew to rehabilitate empty apartments on behalf of the owner. The crew was responsible for all the rehabilitation work, which at times included refinishing the wood floors. Mangiaelli generally oversaw the floor refinishing work, even though he was a two to five minute drive away when the fire erupted. Mangiaelli testified at his deposition that after a fire occurred during another floor refinishing project only months before this fire, he decided to "babysit" the crew for a time. Mangiaelli's brother, Angelo, was the foreman, and he purchased the floor finishing products used by the crew from defendant New Palace Painters Supply Co., Inc.

The accident occurred as the crew began the process of sealing newly sanded floors in apartment 1A. Marache was responsible for moving the buckets of sealer and polyurethane from place to place within the work site, while Jose Carino applied the substance to the floors. The sealer was applied first and allowed to dry for an hour before the polyurethane was applied. As Carino completed the polyurethane application, a fire erupted near the entrance to the apartment.

After an investigation, the New York City Fire Department concluded that the fire was caused by flammable vapors from the lacquer sealer and/or the polyurethane floor sealer and that the source of the ignition was "most likely" the pilot light on the stove or a spark from the refrigerator. The FDNY report also states that the gas was on in the apartment and that the refrigerator was plugged in. Victor Marache, however, testified that the refrigerator was unplugged, per Carino's instructions. Fire Captain Roach, one of the first responders, testified that when he reached the scene, the gas and electricity were off. It is unclear, however, whether these utilities were off when FDNY arrived at the scene or turned off by FDNY in order to respond to the fire. Defendants' expert, Harold I. Zeliger, [1] could not definitively conclude whether the ignition source was the stove pilot light or a spark from the refrigerator. Burton Davidson, an expert who opined on the source of the fire in the Marache case, concluded that triboelectricity from the continual movement of the sealant products in the containers and the drippings from an applicator brush were just as likely an ignition source as a live pilot light or an electrical spark from a compressor motor. Zeliger opined, however, that the chemicals in use were not susceptible to spontaneous combustion.

Defendants' expert concluded that the source of the flash fire could only have been the lacquer sealer because the flashpoint (the temperature at which a liquid generates vapors that can be ignited from an external source) of the polyurethane was 100 F, while the flashpoint of the lacquer sealer was -4 F. Since the air temperature was only 82 F, [2] Zeliger concluded that the lacquer sealer and not the polyurethane served as the fuel for the fire. Davidson opined that because of the varying flashpoints of the different substances being used, the polyurethane alone could not have been the source of the fire. He did not, however, rule out that a combination of vapors from the lacquer sealer and the polyurethane ignited that day.

Davidson stated that the lacquer sealer was prohibited for indoor use in the City of New York.

Mangiaelli testified that the floor refinishing crew was repeatedly told over the course of years that finishing products were highly flammable and that before using the products all equipment were to be removed from the rooms, and the gas and electricity to the apartment was to be shut off.

The lacquer sealer was manufactured by nonparty Akzo Nobel Coatings, Inc. and distributed by defendant T.C. Dunham Paint Company, Inc. Dunham received the lacquer sealer in 55-gallon drums, repackaged the product into one and five gallon containers, and labeled these containers with its customer's name. Dunham created its own polyurethane by blending ingredients from different chemical manufacturers. It also created labels for each of these products in its customer's name, in this case New Palace. New Palace was a wholesale/retail paint, hardware and building supply store operating in the Bronx. It resold the products with the labels created for it by Dunham.

New Palace sold the lacquer sealer and the polyurethane to Appula. The label for the lacquer sealer contained certain warnings. The front of the lacquer sealer prominently stated "DANGER! HIGHLY FLAMMABLE! HARMFUL OR FATAL IF SWALLOWED." A back label stated: "DANGER! EXTREMELY FLAMMABLE: VAPORS MAY CAUSE FLASH FIRE.***Vapors may cause flash fire. Keep ...


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