Tower Insurance Company of New York, as subrogee of Main Street L.I., Inc., appellant,
Hands Across Long Island, Inc., respondent. Index No. 7580/10
Law Group, P.C., Huntington, NY (Robert C. Sheps and Craig J.
Billeci of counsel), for appellant.
Rutherford & Christie, LLP, New York, NY (Adam C. Guzik
of counsel), for respondent.
REINALDO E. RIVERA, J.P. RUTH C. BALKIN CHERYL E. CHAMBERS
JEFFREY A. COHEN, JJ.
DECISION & ORDER
subrogation action, inter alia, to recover damages for
negligence and breach of contract, the plaintiff appeals, as
limited by its brief, from so much of an order of the Supreme
Court, Suffolk County (Santorelli, J.), entered January 29,
2015, as granted those branches of the defendant's motion
which were for summary judgment dismissing the causes of
action alleging negligence and breach of contract.
that the order is affirmed insofar as appealed from, with
March 3, 2009, a fire occurred in the Coventry Village
Apartments (hereinafter the Coventry apartments) in Central
Islip. The fire allegedly was caused by a discarded cigarette
in the bedroom of apartment No. 3. The defendant is a
nonprofit organization which provides support to individuals
with mental illnesses. The defendant leased several units in
the Coventry apartments, including apartment No. 3, from the
plaintiff's insured, Main Street L.I., Inc. (hereinafter
Main Street). The defendant then subleased apartment No. 3 to
an individual who participated in the defendant's program
(hereinafter the tenant).
the fire, the plaintiff commenced this action, as Main
Street's subrogee, to recover damages for, inter alia,
negligence and breach of contract. The defendant moved for
summary judgment dismissing the complaint, and the Supreme
Court granted the motion. The plaintiff appeals from so much
of the order as granted those branches of the defendant's
motion which were for summary judgment dismissing the
negligence and breach of contract causes of action.
a defendant owes a duty of care to another person is a
question of law for the courts (see Davis v South Nassau
Communities Hosp., 26 N.Y.3d 563, 572; Purdy v
Public Adm'r of County of Westchester, 72 N.Y.2d 1,
8; Eiseman v State of New York, 70 N.Y.2d 175, 187).
Generally speaking, "common law in the State of New York
does not impose a duty to control the conduct of third
persons to prevent them from causing injury to others... even
where as a practical matter defendant could have exercised
such control" (Purdy v Public Adm'r of County of
Westchester, 72 N.Y.2d at 8 [internal quotation marks
omitted]). Courts have imposed a duty of care, however,
where, inter alia, a "special relationship" exists
between the defendant and a third person whose actions expose
plaintiff to harm "such as would require the defendant
to attempt to control the third person's conduct"
(id.). "A critical consideration in determining
whether a duty exists is whether the defendant's
relationship with either the tortfeasor or the plaintiff
placed the defendant in the best position to protect against
the risk of harm" (Davis v South Nassau Communities
Hosp., 26 N.Y.3d at 572 [internal quotation marks
limited circumstances, the relationship between a lessor and
a lessee can give rise to a duty of care inasmuch as the
lessor "must exercise reasonable care not to expose
third persons to an unreasonable risk of harm"
(Strunk v Zoltanski, 62 N.Y.2d 572, 576). Assuming
that such a duty also extends to the relationship between a
sublessor and a sublessee, the relevant inquiry would be
whether the defendant, as sublessor, exposed the
plaintiff's insured in this case to an unreasonable risk
of harm. Moreover, in evaluating the existence and scope of
the duty of care, we are mindful that where, as here, the
action involves only property damage, "the public
policies, factors, and other analytical considerations used
in setting the orbit of duty are different from those at play
in cases involving physical injury" (Castlepoint
Ins. Co. v Command Sec. Corp., 144 A.D.3d 731, 734;
compare Moch Co. v Rensselaer Water Co., 247 NY 160
and Eaves Brooks Costume Co. v Y.B.H. Realty Corp.,
76 N.Y.2d 220, with Palka v Servicemaster Mgt. Servs.
Corp., 83 N.Y.2d 579, 587-588).
the circumstances presented, the defendant established, prima
facie, that it owed no duty to the plaintiff's insured to
take affirmative steps to prevent the tenant from smoking in
the demised premises (see Avins v Federation Empl. &
Guidance Serv., Inc., 52 A.D.3d 30, 36). The evidence
showed, inter alia, that all participants in the
defendant's housing program had to be able to live
independently, and the degree of oversight provided by the
defendant under the terms of its agreement with the tenant
was limited. Therefore, the defendant established its prima
facie entitlement to judgment as a matter of law dismissing
the negligence cause of action, and the plaintiff, in
opposition, failed to raise a triable issue of fact (see
generally Zuckerman v City of New York, 49 N.Y.2d 557,
the absence of fault or a specific contract provision to the
contrary, neither the landlord nor the tenant is obligated to
perform repairs after a fire" (Preferred Mut. Ins.
Co. v Pine,44 A.D.3d 636, 638). Here, the defendant
established its prima facie entitlement to judgment as a
matter of law dismissing the breach of contract cause of
action by showing that the subject lease did not impose an
obligation on it to repair the premises after a fire (see
id. at 638-639), or to answer in damages for a fire
caused by its sublessee (see Greenwich Ins. Co. v
Volunteers of Am.-Greater N.Y., Inc., 62 A.D.3d 557). As
the plaintiff failed, in opposition, to raise a triable ...