These personal injury actions arise out of an explosion in the basement of the building located at 121 West 19th St., New York, New York ("Building"), which occurred on April 25, 2002. The Building was owned by 19th Street Associates LLC ("Owner") and managed by Kaufman Mangement Company LLC ("Kaufman")(collectively, "defendants"). Steven Kaufman was the principal of both Owner and Kaufman. On the date of the accident, Kaltech Industries Group, Inc. ("Kaltech"), a sign-making business, was the tenant under a lease, dated May 26, 1992, for the basement and first floor of the Building, for a term commencing June 1, 1992 and ending July 31, 2002 ("Lease"). Kaltech at one time also leased the mezzanine above the first floor, but relinquished the space prior to the explosion. Defendants now move for: 1) summary judgment dismissing the plaintiffs' complaints; and 2) for summary judgment against Kaltech on defendants' third-party claims for contractual indemnification and failure to procure insurance.^[FN1] Plaintiffs opposed the motions by unified opposition papers and, in the case of some plaintiffs, by supplemental opposition papers. The summary judgment motions are consolidated for disposition.

The plaintiffs in Actions 1, 3, 5,8 and 24 are employees who were working at Kaltech on the day of the explosion and their spouses, who are asserting derivative claims. The plaintiff in Action 12, William Franzreb, was a United Parcel Service employee who was on the sidewalk and allegedly injured by falling debris. The plaintiffs in Actions 2 and 17 are employees of the second floor tenant, a radio station known as Launch Media, who were working when the explosion occurred. No motion was filed by defendants in Action 23, although plaintiffs filed their unified opposition under the caption of that action as well.

I. Argument

[*2]Defendants' motion is posited on the theory that, pursuant to the Lease Rider, Kaltech alone was responsible for insuring the safe use of chemicals on the premises, which absolves defendants of liability to plaintiffs. Defendants contend that absent a provision in the Lease obligating them to oversee the safe use of chemicals on Kaltech's premises, or a regulation having the force of a statute, there was no common law duty to insure that Kaltech handled chemicals in a safe manner. Defendants assert that the Building Code provisions cited by plaintiffs do not apply because the Building was always used for light manufacturing, which grandfathered that use under the Building Code, and that no alteration or new occupancy occurred that triggered the need to obtain a new CO and bring the Building up to Code. They attack plaintiff's expert affidavits for lack of reference to specific standards, lack of relevant credentials, and lack of certification pursuant to CPLR §2309(c) . Finally, they argue that the Building Code and other regulatory violations cited by plaintiffs were untimely raised and were not a proximate cause of plaintiffs' injuries.

II. Facts

It is undisputed that Kaltech used various flammable chemicals in its sign making business. Specifically, it used ferric chloride (a corrosive used for etching), lacquer thinner, mineral spirits and acetylene tanks in its basement premises. EBT Mustak Khalfan, pp. 51, 80-84, 164-168; EBT Soukat Khalfan, pp. 45-46. 61-65. It also is undisputed that the explosion occurred when Kaltech employees, Hzaham Hemed and Rashid Mohammed Rashid, plaintiffs in Actions 3 and 5, used an electric pump to empty a small drum of used chemicals into a larger blue plastic 55 gallon drum. EBT Hzaham Hemed, Exh. N, defendants' moving papers. Rashid Mohammed Rashid testified that he was instructed to "mix all those old chemicals with the other waste acids, which they had...." EBT Rashid Mohammed Rashid, Exh. O to moving papers, p. 25. The employees were consolidating smaller drums of chemicals into larger ones in preparation for a pick up of used chemicals by a disposal company. The consolidation occurred in the southeast portion of the basement, near the freight elevator. Most of the small drums, known as carboys, were dark blue plastic, but the last one pumped into the blue 55 gallon drum was made of a silver metal. The small drums were dusty and were sitting next to the larger drums. EBT Hzaham Hemed. Five minutes after the dusty, silver drum was emptied into the larger drum, Mr. Hemed saw a "roundish," reddish-yellow bubble a meter in size rise from the drum and explode. Id. at 78-80. Olivo Javier, a Kaltech sander who worked in the basement, testified that just before the explosion, the workers heard a noise "like when you shake a soda and open it," and saw brown acid coming from the tank into which Messrs. Rashid and Hemed had transferred the chemicals. EBT Olivo Javier, pp. 27-29.

The explosion caused the collapse of the Building facade, the ceiling in Kaltech's first floor premises, the back staircase leading from the second floor to the first, the staircase leading out of the basement and parts of the basement. Smoke filled the basement and second floor. Many witnesses described the basement and second floor as dark following the explosion and said that the electricity was out, although there is some conflicting testimony. The darkness prevented some of the plaintiffs from finding their way out quickly. Employees of the radio station on the second floor did not see lit exit signs and were rescued by the Fire Department with a cherry picker through a window in the front of the building, after attempting to use the collapsed back staircase. One radio station employee described a ball of fire rolling down the second floor hallway. EBT Michelle Lydon, pp. 23-24. [*3]

Plaintiffs alleged injuries are mainly the immediate effects of the explosion, such as being thrown, hit or buried by debris, and/or sustaining eardrum injuries from the sound. Some were burned; Sally Horton claims to have suffered respiratory injuries. Some claim psychological injuries.

An investigation by the United States Chemical Hazard and Safety Investigation Board ("CSB") found a carboy near the elevator containing traces of nitric acid, a chemical which can explode when combined with acid etching solution and laquer thinner. Analysis of the carboys in the southeast portion of the basement revealed that they contained "dissolved metals (consistent with acid etching solution) commingled with laquer thinner." Two larger drums, one plastic and one metal, were found by investigators to show signs of being pressurized. The plastic one was ruptured and investigators determined that it was the likely receiving container and the source of the explosion. The label on the large plastic drum stated that, originally, it contained ferric chloride solution. The CSB report concluded that a chemical reaction between nitric acid and laquer thinner was the most likely cause of the explosion. The large, pressurized metal drum, of which there is a photograph in the record, was bulged upward at the top and its bottom was rounded. The label on the large metal drum and an analysis of its contents revealed that it contained Inksolv solvent composed of ethyl alcohol, propyl alcohol and propyl acetate. The report found that it was likely that the metal drum was knocked over and ignited by "one of the many electrical devices in the general area of consolidation" and the fire flashed back into the drum causing the distortion. The CSB report further noted electrical devices in the area of consolidation (i.e., the southeast portion of the basement), including lighting, wall outlets, circuit breakers and switches, that were not suitable for use around flammable solvents.

Kaltech denies that it used nitric acid in connection with its business and there is no evidence that it did. The CSB report stated that no records pertaining to the purchase or use of nitric acid were found on the premises during the investigation.

On March 24, 2004, Kaltech pleaded guilty to Reckless Endangerment in the Second Degree. During the plea allocution, the assistant district attorney charged that Kaltech "routinely used, mixed pumped stored and consolidated hazardous chemicals," "stored numerous drums of known and some unknown chemicals on its premises, a number of which were not labeled and had been kept for years," failed to keep "a comprehensive inventory of chemicals on hand," and failed to explain to its workers the "proper use and storage of chemicals and warn of potential incompatibilities." Kaltech admitted in its guilty plea that because its workers mixed incompatible chemicals, including nitric acid and volatile compounds,there was an explosion that damaged the Building and the building directly across 19th Street.

A central dispute between the parties is whether the New York City Building Code, which was effective December 6, 1968, applies to the Building. The record reflects that the Building was constructed in 1902. In 1917, a Certificate of Occupancy ("CO") was issued to Equitable Life Assurance Society for the premises located 121-31 West 19th Street. It states that the structure contained a basement and 10 stories. The CO reflects that the first floor was being used as "Offices & Stores," the second floor and above were designated "Factory." Defendants also present certified records demonstrating that in 1917 plans for an alteration were filed with the Department of Buildings ("DOB") for a change in an interior staircase connecting the basement, first floor and mezzanine (which does not appear on the CO). According to defendants' expert, the absence of plans showing doors on each landing proves that the space was [*4]rented to the same tenant. The 1917 plans further depict storage racks twelve feet in height in the basement. In a 1928 application, Liquid Carbonic Company filed plans for the basement, first floor and mezzanine. According to defendants' expert, Liquid Carbonic Company was "commonly known as a manufacturer of soda fountains." In 1934, plans were filed showing a plating factory on the fifth floor. Defendants' expert states that from his experience as a DOB inspector from 1960 to 1989, he learned that plating factories use and store chemicals. There is no evidence relating to the use of the Building between 1934 and its occupancy by the tenants in residence on the date of the explosion, with the exception that Kaltech took over the space of another sign making company.

On the day of the explosion, the Building was rented to tenants for the following uses:

Basement & 1st Fl. - Kaltech, sign manufacturing, offices & showroom

2nd Fl. - radio station, music studios and related offices

3rd Fl. - general office and photo studio

4th Fl. - photo/film production studio, graphic design, executive and general offices

5th Fl. - storage and finishing of art antiques, wallpaper and related light carpentry

6th Fl. - office and manufacturing of costumes and related items

7th Fl. - manufacture, repair and refinishing of pianos

8th Fl. - general and executive offices for imaging/computer graphics firm

9th Fl. - manufacturing of furniture

10th Fl. - offices and studio (for architectural firm)

In addition, the record contains evidence that Kaltech installed ventilation ducts on the outside of the Building to the roof from the 1st floor spray paint booth and from the basement silk screen and etching departments. EBT Mustak Khalfan, pp. 144-147, 202. However, Radha Singh, a Kaltech employee testified that fans, free-standing and wall-mounted, were the only ventilation system in the basement and that the duct work for basement ventilation was never completed. EBT Rhada Singh, pp. 29-30. Mr. Singh confirmed that Kaltech did install a vent in the paint room. Id. at 32. Olivo Javier, another Kaltech worker, also stated that fans were the only ventilation in the basement. EBT Olivo Javier, pp. 22, 24-26.

Paragraph 13 of the Lease gave defendants the right to enter: 1) to make repairs to the demised premises; 2) to make repairs that Kaltech was obligated to make under the Lease; and 3) for the purpose of complying with laws, regulations and other directions of governmental authorities. Paragraph 46(a) of the Rider provides that "Landlord grants Tenant permission to store paints and other chemicals to be used in connection with the Tenant's business so long as said storage is in compliance with all applicable governmental & lbrac;sic & rbrac; ... regulations." Paragraph 50 of the Rider stated that "Landlord represents that the contemplated use of the demised premises is in an & lbrac;sic & rbrac; compliance with the building's Certificate of Occupancy." Similarly, the Rider, ¶55, states that "to the best of Landlord's knowledge the use of the premises does not offend any local rule or ordinance presently in effect." Paragraph 7 of the Rules and Regulations under the Lease reserved to the Owner the right to inspect and exclude all freight brought into the Building that violated the Lease. Under the Lease, the Owner was responsible for maintenance and repair of all common areas of the Building and for structural repairs.

With respect to insurance, paragraph 45 of the Rider required Kaltech to obtain public liability insurance against claims for personal injury or property damage "occurring in, on or [*5]about the demised premises," for the "mutual benefit of Landlord and Tenant." Kaltech was required to provide to Owner copies of the policy before entering into possession and within 30 days prior to the expiration of the existing policy, together with proof of payment. In the event of Kaltech's default in securing insurance, the Lease provides that "Landlord may obtaint he & lbrac;sic & rbrac; same, all at Tenant's expense and the cost thereof shall be deemed additional rent and shallb e & lbrac;sic & rbrac; paid within ten (10) days arter & lbrac;sic & rbrac; the rendition of a bill therefor."

With respect to indemnification, the Lease, ¶8, provides that Kaltech shall indemnify Owner against all liabilities, "for which Owner shall not be reimbursed by insurance, including reasonable attorneys fees," incurred as a result of any breach of the Lease by Kaltech, or any negligence of Kaltech or its employees.

III. Conclusions of Law

A. Common Law Negligence

An out-of- possession landlord who has actual or constructive notice of a hazardous condition and retains the right to inspect and to make repairs in the leased premises may be held liable for failure to maintain the property in a safe condition. Muhammed v. Bucknor, 228 AD2d 333 (1st Dept. 1996)(landlord may be responsible for hazardous conduct of tenant when landlord continues to exercise control over premises); Chapman v. Silber; 97 NY2d 9, 21 (2001)(landlord with actual notice of existence of conditions that indicate hazard may be charged with constructive notice of hazard); State v. Monarch Chemicals, Inc., 90 AD2d 907 (3rd Dept. 1982)(summary judgment denied where landlord had right of entry and may have had actual notice of seepage of chemicals from tenant's factory); Galicia v. Ramos, 303 AD2d 631 (2nd Dept. 2003)(landlord with actual notice of younger child's lead exposure must make effort to abate). A landlord cannot close his eyes to a dangerous condition on his property. Vasquez v. RVA Garage, Inc., 238 AD2d 407 (2nd Dept. 1997)(land being used for fireworks every 4th of July) . Whether or not a condition is sufficiently hazardous to create liability is generally a question of fact. Alexander v. N.Y.C. Transit Auth., 34 AD3d 312 (1st Dept. 2006). Moreover, a landlord who leases premises with knowledge that the prospective tenant poses a danger to third persons, without taking measures to protect them can be found "affirmatively to have created the very risk which was reasonably foreseeable." Strunk v. Zoltanski, 62 NY2d 572 (1984). See also State v. Scott, 26 NY2d 296 (1970) (landlord has duty to exercise sufficient care in selection of tenant).

Here, although defendants deny that they knew that there was a danger posed by Kaltech's use of chemicals, there is evidence in the record from which a jury could find that they had actual or constructive notice of a hazardous condition. It is clear from the terms of the Lease that defendants knew that Kaltech was going to use chemicals due to the inclusion of ¶46 in the Rider. Defendants reserved the right to enter for the purpose of making repairs that Kaltech was required to make and for the purpose of complying with governmental regulations. Steven Kaufman admitted that he was on Kaltech's premises 15 or 20 times during the term of the Lease, but he took no steps to insure that Kaltech was complying with safety regulations for use of chemicals. He acknowledged that he saw the 55 gallon drums of chemicals in the basement, although he chose not to read the labels to see what they contained. The chemical drums used by Kaltech had labels indicating that they contained flammable and dangerous chemicals; some of the labels depicted a flame, others had warning labels on them. Numerous witnesses testified that chemicals were brought in and out of the Building on a freight elevator operated by [*6]defendants' employees. Defendants and their employees had access to and did in fact enter the basement regularly because the plumbing, phone and electrical systems were located in Kaltech's basement. There was a superintendent's office in the basement with a door to Kaltech's premises, which was regularly used by defendants' superintendent and his staff. The chemicals in the basement were stored in the open, not in cabinets. EBT Shoukat Khalfan, pp. 61-65. Steven Kaufman himself was in the basement several times a year. The basement smelled of chemicals. There is evidence that tenants made complaints to defendants about chemical smells that were emanating from Kaltech's premises. There also is evidence that Kaltech installed duct work to vent the vapors from the basement to the roof, although there is contradictory testimony as to whether the vent work was completed. Moreover, there is testimony that Kaltech installed a vent with duct work from the first floor paint spraying booth to the roof. Consequently, there is evidence that defendants knew of the chemical use and it is a question of fact as to whether it was sufficiently hazardous that defendants should have taken steps to protect third persons.

Further, there is a question of fact as to whether Kaltech was responsible for the presence of nitric acid on the premises. Kaltech's witnesses testified that they did not use nitric acid, the explosive chemical, in their business. EBT Mustak Khalfan, pp. 248-249. Additionally, Kaltech presented evidence that the prior sign business did not use nitric acid. EBT Mustak Khalfan, p. 260. The silver carboy was dusty, from which it could be inferred that it hadn't been used for a long time. If the jury believes Kaltech's testimony on this issue, it might draw the inference that the nitric acid was on the premises when it was under defendants' control.

The court disagrees with defendants' position that Kaltech's mixing of the chemicals was an unforeseeable intervening cause as a matter of law. An intervening act will be deemed a superseding cause when it is of such an extraordinary nature or so attenuates the defendant's negligence from the ultimate injury that it cannot be attributed to the defendant's negligence. Kush v. City of Buffalo, 59 NY2d 26, 33 (1983). The doctrine has no application when the intervention of a third party is reasonably foreseeable. Id. Although defendants rely on Kush, it supports plaintiffs. Kush held that it was reasonably foreseeable that a school's failure to secure dangerous chemicals would result in an accident. The facts in Kush were that chemicals were stolen from a school laboratory and dropped out the window by student workers employed in a summer youth program. The student workers intended to retrieve the chemicals later in the day, but an eight-year-old child who wandered by was injured when playing with matches and the chemicals, thinking they were sand. The Court of Appeals rejected the argument that the stealing of the chemicals by the student workers was an intervening cause, holding that it was a question of fact for the jury to determine whether the theft was a foreseeable consequence of the failure to secure the chemicals in the school laboratory. See also Di Ponzio v. Riordan, 89 NY2d 578, 585 (1997)(explosion or fire natural and foreseeable risk of pumping gas with car engine running because of highly flammable properties of fuel)(dicta).

Defendants' theory is that the combination of volatile chemicals by Kaltech's workers was a superseding cause of the explosion as a matter of law. This is an unduly narrow formulation of both the cause of the accident and the proximate cause of the injuries, similar to the argument in Kush that theft was an intervening cause. In this case, the failure to properly store, inventory and segregate chemicals could be found by a jury to be unreasonable under the circumstances and a substantial factor in causing the explosion.The jury may find that it was reasonably foreseeable that Kaltech's employees would accidentally mix chemicals and cause an explosion where [*7]incompatible chemicals were not properly inventoried or stored. A jury might find that defendants should have insisted that Kaltech take adequate precautions instead of ignoring what was happening in plain view.This is not a case where a defendant had no opportunity to control the activity of the third party that caused the hazard, which would break the chain of causation. Defendants in this case chose the third party as a tenant, knowing it would engage in hazardous chemical use and maintained an ongoing relationship with the tenant and the premises.While defendants urge that Kaltech's guilty plea proves that defendants had no responsibility for the accident, this ignores the possibility that a jury could find that more than one defendant's negligence was a substantial factor in causing the accident.

Statutory Violations

Plaintiffs also posit that various statutes and regulations charge defendants with constructive notice that the Building was hazardous. As a threshold matter, defendants advance several arguments against the court's consideration of plaintiffs' experts' affidavits. First, defendants argue that they may not be considered because plaintiffs did not file an expert disclosure, pursuant to C.P.L.R. §3101(d), until after the note of issue was filed and defendants moved for summary judgment. Second, defendants object to plaintiffs' citation of specific statutes and regulations that were not identified in plaintiffs' pleadings or bills of particulars. Finally, defendants challenge the affidavit of plaintiffs' chemical engineering expert on the ground that it was notarized out of New York State without a certification required by C.P.L.R. §2309. Defendants replied to the issues raised in plaintiffs' expert affidavits and were permitted to submit a supplemental expert affidavit more than approximately two months after submission of the motions, due to the difficulty of obtaining records on microfilm from the DOB. Plaintiffs responded to defendants' supplemental expert affidavit.

The only time limit in CPLR §3101(d) is that expert disclosure must be made no more than 30 days before trial. The statute does not require a party to respond to a demand for expert witness information at any specific time. Blade v. Town of N. Hempstead, 277 AD2d 268, 269 (2nd Dept. 2000). It does not mandate that a party be precluded from proffering expert testimony unless there is evidence of an intentional or willful failure to disclose, and a showing of prejudice to the opposing party. Id. Defendants in this case present no evidence that plaintiffs' failure to disclose was willful and there is no prejudice because defendants replied to plaintiffs' submissions and were given permission to submit a supplemental expert affidavit.

Likewise, there is no prejudice to defendants from the specification of safety statutes, codes and regulations by plaintiffs' experts. Plaintiffs have not presented new theories or factual allegations by citing specific provisions. Foley v. City of NY, 842 N.Y.S.2d 399 (1st Dept. 2007)(n.o.r.)(permitting plaintiff to serve supplemental bill of particulars alleging Building Code violation after service of defendant's cross-motion for summary judgement in absence of new theory, facts or prejudice), Noetzell v. Park Ave. Hall Housing Dev. Fund Corp., 271 AD2d 231 (1st Dept. 2000)(improper to grant summary judgment dismissing complaint where Building Code violation not specified in complaint or bill of particulars raised no new theory or facts and caused no prejudice). Plaintiffs, with the exception of Francisco Pavon, generally alleged violations of such standards in their complaints and/or bills of particulars. The parties did discovery relating to nitric acid use, fire safety, chemical storage, chemical inventory, ventilation, use of the Building and alterations. Defendants are in the best position to know the [*8]history of the Building's use and alterations, which are the essential facts relating to grandfathering under the Building Code. As noted before, the court gave defendants an extra opportunity to submit responsive papers on the issue of the applicability of the Building Code.

The lack of certification, pursuant to C.P.L.R. §2309,^[FN2] without more, of the expert of affidavit of Burton Z. Davidson, which was sworn to in front of a notary in New Jersey, is not a fatal defect. Smith v. Allstate Ins. Co., 38 AD3d 522 (2nd Dept. 2007)(affidavit lacking certification can still be used to oppose a motion for summary judgment). Accord, Falah v. Stop & Shop Companies, Inc., 41 AD3d 638 (2nd Dept. 2007). Lack of the certification can be corrected nunc pro tunc. Nandy v. Albany Medical Center Hospital, 155 AD2d 833 (3d Dept. 1989).

Turning' to the substantive issues raised by plaintiffs' experts, defendants have not eliminated all issues of fact regarding the applicability of some of the Building Code regulations cited by plaintiffs. It is defendants' burden of proof, as the proponents of a summary judgment motion, to eliminate all issues of fact as to whether the Code applies to the Building. Pappalardo v. New York Health & Racquet Club, 279 AD2d 134, 140 (1st Dept. 2000)( motion court improperly placed burden of establishing applicability of Building Code to building upon plaintiff); Sarmiento v. C & E Assoc., 40 AD3d 524 (1st Dept. 2007).

It is well settled that in New York City a building owner has a duty to maintain his building in compliance with the Building Code and other statutory mandates & lbrac;Guzman v. Haven Plaza Housing Development Fund Co., Inc., 69 NY2d 559, 564-565 (1987) & rbrac; unless the building is "grandfathered" under Building Code §27-111. Sarmiento v. C & E Assoc., 40 AD3d 524 (1st Dept. 2007). The Building Code was effective on December 6, 1968. 9 New York City Administrative Code, §27-105. Section 27-111 provides that lawful occupancy and use of any building on the Code's effective date may be continued. However, where a change in occupancy or use is made, the re-establishment of a prior occupancy or use that existed before 1968 is prohibited unless there is compliance with the Code. Id. at §27-112. Similarly, where alterations to an existing building are made, the building must be brought in compliance with the 1968 Code if the cost of alterations within a twelve month period exceeds 60% of the building value. Id. at §27-116. And, where the cost of alterations in any twelve month period is 30% to 60% of the value of the building, compliance with the Code is optional "provided the general safety and public welfare are not thereby endangered." Id. at §27-117. A change in the occupancy or use of an existing building, falling within §27-116 or §27-117 requires a new CO. Id. at §27-217.

Section 27-118 states that alterations involving changes in occupancy for portions of a building, which meet the value thresholds set by 27-116, triggers the obligation to bring the entire building up to Code. In addition, §27-118 requires compliance, regardless of the value of alterations, where general safety and public welfare are endangered, and for certain fire-related [*9]requirements.^[FN3]

Subchapter 3, referred to in §27-118, creates occupancy classifications. Occupancy Groups A, D and E are defined, respectively, as "High Hazard," "Industrial" and "Business." There is a classification table for each occupancy group listing "representative occupancies." Id. at §27-246, Table 3-2. Group A, High Hazard Occupancy Groups, include buildings and spaces used for storing "potentially-explosive products or materials, or highly combustible or highly-flammable materials that are likely to burn with extreme rapidity" and "any other uses that constitute a high fire hazard...." Id., at §27-243. Typical high hazard uses include storage of combustible solvents, metal enameling or japanning, paint and spraying or dipping. Id. Representative high hazard occupancies include "paints shop and storerooms" and "tanneries with enameling or japanning." Representative Business Occupancies include office buildings and radio and televisions stations.

Buildings that contain spaces with differing occupancy categories must be given separate occupancy group classifications for each activity. Id., at §27-242. A building with multiple occupancies must comply with the highest relevant fire index. Id., at §27-239. Occupancy groups with a higher fire index must also be separated from adjoining spaces by construction meeting fire-resistance rating requirements set forth in the table in §27-339. Id. at §27-240.

The New York City Fire Prevention Code ("Fire Code"), another statute applicable in New York City, prohibits the operation of hazardous industries and the storage or use of combustible or flammable materials without a permit. Fire Code, & dblsecmk;27-4010, 27-4011. The Fire Code adopts the definition of High Hazard Occupancy Group established by the Building Code, Chapter 1, Subchapter 3, Article Two. See Fire Code, §27-4002(33) and Building Code, §27-237 et seq. The Fire Code provides that a permit for a building, or part thereof, where containers of explosive, combustible or flammable materials are stored cannot be issued unless the [*10]applicant presents a certificate of occupancy or authorization issued by the DOB.

Plaintiffs have raised issues of fact that preclude a finding that the Building was never altered in a manner that triggered applicability of the 1968 Building Code. The record establishes that, on the day of the explosion, floors two through ten were no longer all factories as they were in 1917 when the CO was issued. Defendants have failed to offer any evidence as to when the Building was altered from factory to other uses or the cost of the alterations in relation to the value of the Building. On the day of the accident, only floors 5, 6, 7 and 9 were devoted to industrial use, while floors 2, 3, 4, 8 and 10 contained photo studios, a radio/music station and various types of offices. The proof that there was a plating factory on the 5th floor in 1934 establishes, as a matter of law, neither that there was a high hazard occupancy in 1968 nor that it was continuous until the date of the explosion. The opinion of defendants' expert that, in his post-1960 experience, plating factories use and store chemicals, proves neither that the 5th floor tenant was storing and using chemicals in 1934 nor that the 1934 plating factory's chemicals were hazardous. Moreover, there is no evidence that the basement contained a high hazard occupancy before the sign company that preceded Kaltech moved into it. In addition, the Building Code must be complied with where non-compliance would endanger general safety and welfare, regardless of the value of alterations. Finally, there are exit lighting requirements that cannot be grandfathered under the Building Code.

Plaintiff has identified specific standards that defendants would have violated were the Building Code found to be applicable. Building Code §27-519 requires that carboys containing nitric acid be stored in storage vaults. Section 27-405 requires that "rooms and spaces used for the storage of flammable paints or solvents ... or other inflammable vaporous materials shall be vented to the outdoors by gravity or mechanical means, with independent supply and exhaust openings or ducts." Section 27-405 requires that where venting "is provided by mechanical means, the system shall be designed to provide at least two air changes per hour." Where nitric acid is stored, mechanical ventilation systems for nitric acid storage vaults must effect ten air changes per hour. Materials with four hour fire resistance rating must separate high hazard occupancies from other occupancies. Id. at §27-403.

The court is not persuaded by defendants' argument that the injuries alleged were not proximately caused by improper storage of chemicals, lack of fire protection, lack of separately powered emergency exit signs or lack of ventilation as a matter of law. Defendants' theory is that Kaltech's employees removed the chemicals from storage to mix them and, therefore, storage was not a proximate cause of the accident. However, the record reflects that the chemicals were stored in the basement which, according to the plans submitted by defendants' expert, was largely an open space. The evidence shows that the 55 gallon drums were stored against the southeast wall of the basement next to the carboys. The combining of chemicals on the day of the accident occurred in the same area. A jury may infer that the lack of a vault for nitric acid was a contributing cause that led to the accidental combination of reactive chemicals, resulting in the explosion. With respect to ventilation, there is testimony in the record that the only ventilation in the basement was fans. The jury could credit the opinion of plaintiffs' expert, Rudi O. Sherbansky, P.E., that an upgraded ventilation system would have reduced the intensity of the explosion. The lack of fire resistant separation and ventilation required by the Building Code could be found by a jury to have contributed to respiratory injuries. The evidence that a ball of fire rolled down the second floor hallway shortly after the explosion creates a question of [*11]fact as to whether this requirement was met and contradicts defendants' assertion that sprinklers quickly contained the fire. There are questions of fact as to whether defendants complied with Building Code, Subchapter 6, & dblsecmk;27-382 and 27-384, regarding separately powered emergency exit lighting, as witnesses testified that they were in total darkness, unable to see exit signs, which delayed their escape. The delay due to lack of exit signs could have contributed to respiratory injuries. Sections 27-382 and 27-384 are applicable to all buildings, without grandfathering, and were required to be complied with no later than April 1, 1987. Finally, there are issues of fact as to whether defendants' failure to bring the Building up to Code endangered general safety and welfare.

In sum, defendants' motion for summary judgment is denied because there are questions of fact including, but not limited to, whether defendants had actual or constructive notice of the hazards that led to the explosion; whether the Building was altered or used in a manner that would subject it the requirements of the Building Code and the Fire Code; whether defendants should have exercised their right to ensure compliance with applicable laws; whether defendants violated statutes regarding fire resistance separations of multiple occupancies, ventilation, nitric acid storage and emergency lighting; whether such violations proximately caused the explosion by increasing its force or delayed plaintiffs from escaping the Building thereby contributing to their injuries; and whether the failure to bring the Building up to Code endangered general safety and welfare.

IV. Third-Party Action

Turning to defendants' third party action against Kaltech, defendants motion for summary judgment is denied due to issues of fact as to whether they were negligent and, if so, to what extent. Summary judgment for contractual indemnification in favor of the indemnitee is inappropriate where the indemnitee's negligence remains unresolved. Pardo v. Bialystoker Ctr. & Bikur Cholim, Inc., 10 AD3d 298, 302 (1st Dept. 2004), citing Crespo v Triad, Inc., 294 AD2d 145, 147 (1st Dept. 2002) and Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65 (1999). In this case, defendants' negligence presents an issue of fact for the jury and, therefore, contractual indemnification is premature.

However, defendant 19th Street Associates LLC is entitled to summary judgment on liability only on its claim against Kaltech for failure to procure insurance. The Lease provided that Kaltech was to obtain insurance for the "mutual benefit of Landlord and Tenant." The entity leasing the Premises to Kaltech was 19th Street Associates. Kaltech has failed to produce a policy of insurance naming 19th Street Associates as an insured. Accordingly, the covenant was breached. The motion is denied with respect to Kaufman, as it was not the Landlord under the Lease to whom the covenant ran.

In searching the record, the court dismisses Kaufman's third-party claim for failure to procure insurance and 19th Street Associates' third-party claim for failure to procure insurance against third-party defendants Kaltech Digital Graphics, Inc., and Mustak A. Khalfan. The promise to procure insurance did not run in favor of Kaufman and was made only by Kaltech Industries Group, Inc., the lessee under the Lease.

The damages to which 19th Street Associates LLC is entitled for breach of the covenant to procure insurance will be determined at trial. The Lease provided that 19th Street Associates was entitled to procure coverage, if Kaltech failed to do so, and charge additional rent to pass the cost to Kaltech. The parties do not dispute that 19th Street Associates had insurance on the day of the [*12]accident, but there is no evidence in the record as to whether 19th Street Associates availed itself of the right to charge additional rent, which raises an issue of fact. See, Wallen v. The Polo Grounds Bar and Grill NY, Inc., 198 AD2d 19 (1st Dept. 1993). The damages that are recoverable are limited to premiums for the substitute coverage, copayment, deductible, or other out-of-pocket payments, and future increased insurance premiums occasioned as a result of these liability claims. Inchaustegui v. 666 5th Ave. Ltd. Pshp., 268 AD2d 121, 127 (1st Dept. 2000), affirmed, 96 NY2d 111 (2001). Accordingly, it is

ORDERED that defendants' motions against plaintiffs for summary judgment are denied; and it is further

ORDERED that defendants' motions for summary judgment against Kaltech for contractual indemnification are denied; and it is further

ORDERED that defendants' motions for summary judgment against Kaltech for failure to procure insurance are granted as to liability only in favor of 19th Street Associates LLC; and, in searching the record, the third-party claims for failure to procure insurance by Kaufman Management Company LLC are dismissed; and it is further

ORDERED that the third-party claims by 19th Street Associates LLC for failure to procure insurance and for contractual indemnification against Kaltech Digital Graphics, Inc., and Mustak A. Khalfan are dismissed.

Dated: November 8, 2007

ENTER:

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J.S.C.