Citation Numbers: 32 A.D.2d 997
Judges: Staley
Filed Date: 7/2/1969
Status: Precedential
Modified Date: 1/12/2022
Appeals by plaintiffs-appellants in actions No. 1 and No. 2 from (1) orders entered November 23, 1966 which granted the motions of defendants-respondents for summary judgment and from (2) judgments entered thereon which dismissed the complaints of plaintiffs-appellants as against defendants-respondents. Cross appeals by defendant-appellant in actions No. 1 and No. 2 from (1) orders entered November 23, 1966 which granted the motions of defendants-respondents for summary judgment and from (2) judgments entered thereon which dismissed the cross claims of defendant-appellant against defendants-respondents. On March 21, 1962 an explosion occurred on real property owned by plaintiff, Paul A. Chetcuti, located in the Hamlet of 'Coventry, Chenango County, New York, which contained a combination general store, living quarters and gasoline filling station. The property was leased to plaintiffs Willard Pullman and Pauline Pullman who had purchased the general store business and gasoline station from Chetcuti on October 10, 1960, and had operated the business from that date until the date of the explosion. The explosion and the fire that followed resulted in extensive damage to the building owned by Chetcuti, and the personal property on the premises owned by the Pullmans. In 1933 respondents installed three gasoline tanks and pumps on the property which, from the time of their installation to the time of the explosion, were used for the sale of high test gasoline, regular gasoline and kerosene. Each tank was connected with two pipes extending above ground; one pipe was used as a gauge pipe to measure the amount of fuel in the tank; and the other was used as a fill and vent pipe. The respondents sold the tanks and pumps in 1959 to defendant-appellant’s predecessor who in 1960 sold them to defendant-appellant Hart, who at that time entered into an agreement with respondents whereby Hart became a wholesale distributor of respondents’ products. The complaints allege that respondents were negligent in the installation of the “ storage tanks with a defective vent system ” and that such installation was “ in direct contravention of known and accepted procedures relating to the venting of underground gasoline storage tanks ”. The specific defects claimed in the venting system are that the vent pipes extending 9 to 13 inches above the ground permitted dangerous fumes to collect at ground level where they were subject to ignition; that the vent pipes were constructed too close to the building; that the vent and fill pipes were connected at a point underground before they entered the storage tank; and that neither the vent nor fill pipe extended down any substantial distance into the tank. Special Term held that respondents were entitled to summary judgment, since the plaintiffs did not present evidentiary facts tending to show that there was some latent defect or hidden danger not discoverable by reasonable inspection existing in the equipment at the time it was sold by respondents, and further that if there was anything defective about the location or installation of the pipes, it was not a latent or concealed defect. Plaintiffs claim that although the height of the vent pipes above ground and their distance from the building were clearly visible, a question of fact exists as to whether or not such conditions constituted an obvious or a hidden danger which could cause an explosion. In addition, plaintiffs claim that there is also a question of fact as to whether or not there was a hidden or latent defect in the piping below the surface of the ground since the combination fill and vent pipe did not go directly into the underground gasoline tank, but was connected by an elbow and parallel pipe to the gauge pipe which led directly into the underground tank. Plaintiffs contend that they are prepared to offer expert testimony by qualified engineers to the effect that the facts support their claim that the venting system was defective, and that the underground installation created a dan