Harleysville Worcester Ins. Co. v. Duane Reade, Inc. , 7 N.Y.S.3d 303 ( 2015 )

Harleysville Worcester Ins. Co. v Duane Reade, Inc. (2015 NY Slip Op 02730)

Harleysville Worcester Ins. Co. v Duane Reade, Inc.

2015 NY Slip Op 02730

Decided on April 1, 2015

Appellate Division, Second 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 April 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
JOSEPH J. MALTESE
BETSY BARROS, JJ.

2013-05586
(Index No. 15603/10)

[*1]Harleysville Worcester Insurance Co., etc., et al., plaintiffs, You & Me of NY, Inc., et al., plaintiffs- respondents,

v

Duane Reade, Inc., et al., defendants- respondents, 3712 Junction Boulevard Associates, L.P., et al., appellants, et al., defendants.

Tromello, McDonnell & Kehoe, Melville, N.Y. (James S. Kehoe and Stephen Donnelly, Jr., of counsel), for appellants.

Jeffrey A. Sunshine, P.C., Jericho, N.Y., for plaintiffs-respondents.

Cozen O'Connor, New York, N.Y. (Jason L. Beckerman and Amanda L. Nelson of counsel), for defendants-respondents.

DECISION & ORDER

In an action to recover for property damage, the defendants 3712 Junction Boulevard Associates, L.P., and Jenel Management Corporation appeal from so much of an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered April 1, 2013, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them and on their cross claim for contractual indemnification from the defendants Duane Reade, Inc., and Duane Reade Realty, Inc.

ORDERED that order is reversed insofar as appealed from, on the law, with costs to the defendants 3712 Junction Boulevard Associates, L.P., and Jenel Management Corporation, payable by the plaintiffs You & Me of NY, Inc., 82nd Leather, Inc., and 82nd Leather, Inc., doing business as Top Gun, that branch of the motion of the defendants 3712 Junction Boulevard Associates, L.P., and Jenel Management Corporation which was for summary judgment dismissing the complaint insofar as asserted against them is granted, and that branch of their motion which was for summary judgment on their cross claim for contractual indemnification from the defendants Duane Reade, Inc., and Duane Reade Realty, Inc., is denied as academic.

The defendant 3712 Junction Boulevard Associates, L.P., was the owner of a strip mall that was divided into several different stores. The defendant Jenel Management Corporation was the managing agent for the building. The defendants Duane Reade, Inc., and Duane Reade Realty, Inc. (hereinafter together Duane Reade), owned a store in the mall. In 2007, a fire broke out in the Duane Reade store, which caused extensive damage to that store and several of the other stores in the mall.

Thereafter, several of the tenants or their insurance companies sued the defendants 3712 Junction Boulevard Associates, L.P., and Jenel Management Corporation (hereinafter together the appellants) for property damage they sustained as a result of the fire. In July 2012, the appellants moved for summary judgment dismissing the complaint insofar as asserted against them and on their cross claim for contractual indemnification from Duane Reade, arguing that there was no evidence that they negligently caused the fire. The Supreme Court denied the motion.

The Supreme Court erred in denying that branch of the appellants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The appellants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the cause of the fire was undetermined and that they committed no act from which a jury could rationally infer that they negligently caused the fire (see Ali Abd Aloan Alomsi v 250 Dean, LLC, 101 AD3d 1056; Katz v Eastern Constr. Developing & Custom Homes, Inc., 100 AD3d 830; Tower Ins. Co. v Allstate Ins. Co., 31 AD3d 630). In opposition, the plaintiffs You & Me of NY, Inc, 82nd Leather, Inc., and 82nd Leather, Inc., doing business as Top Gun, failed to raise a triable issue of fact.

In light of our determination, the appellants' remaining contentions have been rendered academic.

LEVENTHAL, J.P., HALL, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court