Glens Falls Insurance v. City of New York

In five related actions to recover damages for injury to property of the plaintiffs’ subrogees caused by fire, the defendant Continental Contracting Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated May 8, 1996, as denied those branches of its motion which were to dismiss the cross claims and counterclaims asserted by the Brooklyn Navy Yard Development Corp. and the City of New York against it in Actions Nos. 1 through 4, and to preclude the defendants Brooklyn Navy Yard Development Corp. and the City of New York from offering certain evidence at the trial of Actions Nos. 1 through 5 “with leave to renew at trial upon a showing that the City and BNYDC’s actions with respect to the removal of the mold flooring was willful and contumacious”.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

These actions arose from a fire that occurred at a building in the Brooklyn Navy Yard where the defendant Continental Contracting Co., Inc. (hereinafter Continental) was replacing the roof pursuant to a contract with the defendant Brooklyn Navy Yard Development Corp. (hereinafter the BNYDC). The Supreme Court did not improvidently exercise its discretion in denying, with leave to renew at the time of trial, those branches of Continental’s motion which were to dismiss the cross claims and counterclaims asserted by the BNYDC and the City of New York (hereinafter the City) and to preclude the BNYDC and the City from offering evidence regarding their claim that the fire was caused by sparks or hot slag produced by Continental’s welding work and that it then spread throughout the building via the “mold flooring”.

The issues as to whether the conduct of the BNYDC and the City was willful and contumacious can be determined at the trial. Bracken, J. P., Rosenblatt, Ritter and Luciano, JJ., concur.