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Travelers Property & Casualty Insurance Company v. AGG Creperie

United States District Court, E.D. New York

September 5, 2014

TRAVELERS PROPERTY & CASUALTY INSURANCE COMPANY, a/s/o Loehmanns Inc. and other Interested Insureds Under the Policy of Insurance, Plaintiff,
v.
AGG CREPERIE d/b/a XO CREPERIE; 2027 EMMONS AVENUE, LLC; 2027 LLC; HIGH RISE FIRE PROTECTION CORP. d/b/a HIGH RISE FIRE & SECURITY; CHIEF FIRE CONTRACTORS CO. INC; METRODIAL CORPORATION; and KORA DEVELOPERS, LLC, Defendants

For the Plaintiff: ROBERT C. SHEPS, ESQ., Sheps Law Group, P.C., Melville, New York.

For High Rise Fire Protection Corp., Defendant: KENNETH R. MAGUIRE, ESQ., Ken Maguire & Associates, PLLC, Garden City, New York.

For Chief Fire Contractors Co. Inc., Defendant: PHILIP C. SILVERBERG, ESQ., STEVEN A. TORRINI, ESQ., Mound Cotton Wollan & Greengrass, New York, New York.

Page 445

MEMORANDUM AND ORDER

FREDERIC BLOCK, Senior United States District Judge.

Loehmann's clothing store suffered property damage as a result of a fire in an adjacent store. Having reimbursed its insured for the loss, Travelers Property & Casualty Insurance Company (" Travelers" ) now seeks to recover as Loehmann's subrogee. It initially sued the building owner, management company and neighboring tenant, but subsequently voluntarily dismissed the claims against the owner and management company. The claims against the tenant remain pending.

In addition, Travelers sued the entities contractually responsible for inspecting the building's sprinkler and alarm systems. Those two defendants have each moved for summary judgment on the ground that their contractual obligations did not give

Page 446

rise to a duty of care to Loehmann's. For the following reasons, the Court agrees and grants the motions.[1]

I

The following facts are undisputed.

Loehmann's is the anchor store at Loehmann's Seaport Plaza, a strip mall in Sheepshead Bay, Brooklyn. A restaurant owned and operated by AGG Creperie (" AGG" ) occupies the premises next door. The mall is owned by 2027 LLC (" 2027" ) and managed by Kora Developers LLC (" Kora" ).

On November 21, 2009, a fire broke out at AGG. Although the mall was protected by a building-wide sprinkler system, the system failed to activate, leaving the fire to burn unchecked until a passerby alerted the authorities. By the time the fire was extinguished, Loehmann's store and inventory had suffered extensive smoke and water damage. Travelers paid $1,196,896.60 on the property-damage claim.

A post-fire investigation revealed that a valve in AGG's part of the sprinkler system had been turned off. In addition, the valve had been covered by a drop ceiling and was, therefore, not visible. Although there is no evidence as to when the valve was covered, the ...


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