Great Northern Insurance v. Milo Real Estate Corp. ( 2014 )

Great N. Ins. Co. v Milo Real Estate Corp. (2014 NY Slip Op 08572)

Great N. Ins. Co. v Milo Real Estate Corp.

2014 NY Slip Op 08572

Decided on December 9, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 9, 2014
Sweeny, J.P., DeGrasse, Manzanet-Daniels, Feinman, Gische, JJ.

13714 114453/10

[*1] Great Northern Insurance Company as subrogee of George D. Bednar, et al., Plaintiffs-Respondents, —

v

Milo Real Estate Corp., Defendant-Appellant, Joseph Rossi, etc., Defendant.

Gannon, Rosenfarb, & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant.

Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 8, 2014, which denied defendant owner Milo Real Estate Corp.'s (defendant) motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

There are triable issues of fact as to whether the sanding and refinishing of wooden floors in one of defendant's residential buildings constituted an inherently dangerous activity, and whether defendant knew or should have known that sawdust, if improperly stored or disposed of during the refinishing process, may spontaneously combust (see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]; Montano v O'Connell, 186 AD2d 461 [1st Dept 1992]). In addition, there is a question of fact as to whether defendant, who had a nondelegable duty to keep the subject brownstone in a safe condition, had notice that defendant independent contractor was not properly disposing the sawdust that allegedly caused the fire (see Laecca v New York Univ., 7 AD3d 415, 416 [1st Dept 2004], lv denied 3 NY3d 608 [2004]). It is undisputed that the day before the brownstone caught fire, a concerned neighbor noticed that a closed plastic garbage bag containing sawdust had been left on the curb and told defendant's employee that it might spontaneously combust. Thereafter, the employee told defendant independent contractor not to leave bags of sawdust in the building or on the curb (see Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 152 [1943]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 9, 2014

CLERK