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December 9, 2014 – M&H Wins Affirmance Of Lower Court Order Denying Summary Judgment To Defendant Building Owner In Subrogation Action

Great N. Ins. Co v. Milo Real Estate Corp., 2014 NY Slip Op 08572 [1st Dept., 2014]

In this subrogation action to recover for property damages stemming from a fire in a Manhattan apartment building, the Appellate Division, First Department, in accordance with M&H’s arguments on appeal, affirmed the lower court’s order denying summary judgment to the defendant building owner. In so holding, the Court reasoned that the there were triable issues of fact as to whether workers within the building were engaged in an inherently dangerous activity, and whether the building owner had notice that its independent contractor was not properly disposing of the waste which caused the fire.

Great N. Ins. Co. v Milo Real Estate Corp.
2014 NY Slip Op 08572 [123 AD3d 482]
December 9, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 28, 2015


Great Northern Insurance Company, as Subrogee of George D. Bednar, et al., Respondents,
Milo Real Estate Corp., Appellant, et al., 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]). Concur-Sweeny, J.P., DeGrasse, Manzanet-Daniels, Feinman and Gische, JJ.