This is an action to recover monetary damages arising from property losses following a leak into the coop apartment ( apartment 9A") occupied by Kenneth Hubbard and Victoria Dauphinot ( Hubbard-Dauphinot") from the apartment directly over them ( 10A") occupied by Laurence Belfer ( Belfer"). Hubbards-Dauphinot have subrogated their damages claim to plaintiff/subrogree American International Insurance Company ( plaintiff"). Plaintiff is Belfer's insurance carrier. It adjusted the claim for $144,224.83, and paid Hubbards-Dauphinot the sum of $141,274.83, after application of a $2,500 deductible.

The court has before it Steve Mark, Inc.'s ("general contractor") motion for summary judgment, dismissing the complaint and cross claims. N. Pagano Plumbing & Heating Contractors, Ltd. ("plumber") has cross moved for summary judgment as has Scotsman and Sub-zero (collectively, "manufacturer"). Plaintiff opposes each of these motions. The defendants oppose each other's motions.

Issue was joined by all the moving defendants. As per the preliminary conference order, the then presiding judge ordered that summary judgment motions be made within 60 days of the filing of the note of issue. The original motion meets this deadline and the cross motions relate to the same matters. Therefore, the motion and cross motions were brought timely. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). Arguments by the plumber that any other cross motion is untimely, and therefore should be denied without reaching the merits are, therefore rejected. All the motions before the court will be decided on their respective merits.

Arguments

Non-party Belfer hired defendant Steve Mark, Inc., a construction manager/ general contractor ( the general contractor") to renovate his apartment (10A), including the kitchen. The general contractor subcontracted the plumbing work to a plumber, defendant N. Pagano Plumbing & Heating Contractors, Ltd. ( plumber"). The plumber installed an ice maker that the general contractor had purchased for Belfer. The ice maker, a Sub-zero" brand model 315P ice machine ("ice maker" or "machine"), is a free standing unit having an internal hose, as well as external hoses. The ice machine was manufactured by defendant Scotsman Manufacturing Company ( the manufacturer") for the Sub-zero brand.

There is no dispute that water from the ice maker leaked from apartment 10A into apartment 9A causing certain property damages that were paid for by the plaintiff. It is also undisputed that the leak was caused by an internal hose which was not attached to the drain pump. There is no factual dispute that as ice melted, or condensation formed on the unit, water that would have otherwise drained into the disconnected hose instead leaked out flooding the apartment of the subrogors resulting in an insurance claim being made to plaintiff. The reason the hose was not attached or became detached is, however, sharply disputed and at the core of each motion now before the court to decide. [*2]

Plaintiff claims that the general contractor and the plumber were negligent in how they handled the installation of the ice maker. The general contractor was, according to plaintiff, negligent because it did not properly supervise its subcontractor, i.e. the plumber it hired to install the ice maker. Plaintiff contends that the general contractor maintained a constant presence at the Belfer apartment, and regularly checked the work being done by its own employees and the subcontractors, to whom it had contracted the work. Further, plaintiff maintains the general contractor bought the unit, uncrated it and then placed it in the kitchen to be installed.

Plaintiff claims the plumber was negligent because it was the plumber's job to actually install the ice maker by not only connecting it to the water line, but also testing the unit to make sure it did not leak. Plaintiff contends the plumber did not test the unit after connecting it to see whether all the hoses, including the drainage hose, were attached and that its failure to do so was negligent.

Plaintiff also attributes the leakage to a defectively manufactured or designed ice machine, put into the stream of commerce by the manufacturer. According to plaintiff, the manufacturer sold a defective unit with a disconnected hose or a hose that could easily come unattached under any number of circumstances.

The manufacturer contends that it is entitled to summary judgment because there is no evidence that the ice maker was defective or malfunctioned, or that it left the factory with the drainage hose unattached. Bruce Lyons, a Consumer Manager for Scotsman, and self-described trouble shooter" was deposed by plaintiff and the other defendants on behalf of Scotsman. He has also provided his sworn affidavit in support of Scotsman's motion, and in opposition to the other motions.

Mr. Lyons states in his affidavit that the manufacturer has certain quality controls, including testing of its products and that he is certain that if this hose was disconnected at the time this particular unit was in run test, it would have been caught by the operator and corrected . . . I am also sure that if the inlet hose to the drain pump was disconnected when this unit was installed in the home, and the installer followed the instructions provided in the user's manual, that water would have leaked immediately."

At his EBT, Mr. Lyons was asked questions about the drain hose, where it is located, and how he believed it could have come loose or been detached. He described the manner the drain hose is clamped on, where it is located, and what it looks like. He also testified that he was unaware" of any complaints about this particular model having to do with drainage or the hose being/ coming unattached. Mr. Lyons physically examined the ice maker prior to the commencement of this action. When asked about what he had observed, he testified at his EBT that it looked like the unit was mishandled when it was installed and the installer didn't look at any of the internal connections when he hooked the machine up . . ." Mr. Lyons also testified at his EBT that the drain pump was still attached, but the drain hose was unattached when he examined the unit. Thus, it is Mr. Lyon's (and the manufacturer's) contention that the ice maker was dropped or mishandled or misused, causing the hose to come unattached sometime after the machine left the manufacturer's control. Mr. Lyon also testified at his EBT that had the machine been tested by the plumber when installed, it would have immediately leaked.

The plumber denies that its employees were negligent in connecting the ice maker, but contends the ice maker was defective or events after the machine was connected resulted in the [*3]hose coming loose.

Mauricio Taormina, the principal of N. Pagano Plumbing & Heating was deposed by plaintiffs and the other defendants. He testified that he sent plumbers to install the ice maker in the Belfer kitchen. Although Mr. Taormina himself was not present, he testified that his men reported the machine was already uncrated and in the kitchen and under the wooden cabinet where it was to be installed when they arrived. The plumber attached the water line, tested the unit, observed no leaks and then left, completing the work ticket that their boss, Mr. Taormina, had issued.

Mr. Taormina does not know whether the unit was left running, but testified at his deposition that the men reported to him they had to use an extension cord because the outlet immediately behind the unit was not live," but due to be connected by the electricians at a later date.

Following the complaint about the leak, Mr. Taormina went to the Belfer apartment and opened the bottom panel. He observed the unit was plugged in and running into the outlet behind the unit. He also observed the disconnected hose.Mr. Taormina faults the general contractor for how it uncrated the unit and positioned it for installation. Alternatively, he contends that the machine itself was defective.

The general contractor states that it did not, nor was it required to, supervise how the unit was installed by the plumbers because they were licensed to do plumbing, and he was not. The general contractor contends further that it did not create, nor have notice of, the condition resulting in the property damage. Steve Mark, the principal of the general contractor was deposed by plaintiff and the other defendants. He stated that he did not know whether any of his employees uncrated the ice maker, and could not recall giving those instructions.

Discussion

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

There is no issue of fact that the drain hose either was disconnected or became detached and this caused the ice maker to leak out water that otherwise would have been safely disposed of through a drain. The plumber and the manufacturer agree that the unit would have immediately leaked had the unit been tested and the hose was already detached when it was tested. The plumber contends it did test the unit, but it did not leak. The manufacturer claims that it is impossible that the plumber did the testing, because the leak would have been revealed, if the unit had been tested. This is a factual dispute that can only be resolved at trial. Although Mr. Taormina's testimony is only partly based upon personal knowledge, some of his statements are admissions and others are based upon business document. Therefore, much of this information is admissible. Matter of Findlay, 253 NY 1, 11 (1930).

Plaintiff claims that the ice maker was defective because a hose was found unattached when the unit was examined after it leaked. The manufacturer contends the ice maker was [*4]mishandled, even possibly dropped after it left the plant. A product liability cause of action can be established through circumstantial evidence. Treston v. Allegretta, 181 AD2d 470 (1st Dept 1992). However, a plaintiff seeking to prove its case that way must establish not only that the product was defective when it left the defendant's hands, but also exclude all potential causes not attributable to the defendant. Caprara v. Chrysler Corp., 52 NY2d 114 (1981).

There is no admissible proof tending to support plaintiff's claim that the ice maker was defective or improperly designed. Although there is no dispute that the ice maker did not perform as intended (it leaked), plaintiff has failed to put forth evidence in admissible form excluding the possibility that the ice maker was mishandled or mis-installed after it left the manufacturer. Voss v. Black & Decker Mfg. Co., 59 NY2d 102 (1983); Speller v. Sears, Roebuck & Co., 100 NY2d 38, 41 (2003).

Although plaintiff (and the other defendants) argue that Mr. Lyons is not an expert witness, and therefore his deposition testimony fails to support the manufacturer's motion, Mr. Lyons is a fact witness with personal knowledge and experience with the particular product at issue. Mr. Lyons was also asked at his EBT for his opinion about why he thought they hose became unattached. Mr. Lyons stated that it looked like the unit had been mishandled or dropped because the drain pump was attached but the hose was not. The manufacturer did not uncrate the unit or position the unit in the apartment. Through his testimony, the manufacturer has established a non-negligent explanation for how the ice maker could leak (malfunction), yet not be defective. Kravitz v. Long Island Jewish Hillside Med Ctr., 113 AD2d 577, 581 (2nd Dept 1985). Neither plaintiff nor the other defendants have presented issues of fact excluding the non-negligent explanations the manufacturer has provided (e.g. the unit being mishandled, dropped, etc.) See: Speller v. Sears, Roebuck & Co., supra at 44; See also: Perez v. Radar Realty, 34 AD3d 305 (1st Dept 2006) (issues of fact raised through plaintiff's expert). There is simply no evidence tending to show that the unit was in a defective condition when it left the manufacturer's control. Denny v. Ford Motor Co., 87 NY2d 248 (1995); Speller v. Sears, Roebuck & Co., supra.

Although plaintiff urges the court to apply the doctrine of res ipsa loquitur, it is inapplicable to the facts of this case. Even assuming that plaintiff could prove that the event that happened (the leak) does not occur in the absence of someone's negligence, and the leak was not due to any voluntary action or contribution by the plaintiff, the third element of a prima facie case against the manufacturer is missing, to wit: that the instrumentality was within the exclusive control of Scotsman. Dermatossian v. New York City Transit Authority, 67 NY2d 219 (1986). It is undisputed that the ice maker was in an apartment that was routinely accessed by a number of different people during the course of the renovations, none of whom were affiliated with the manufacturer.

Since the manufacturer has met its burden on this motion, and the parties who are opposed have not put forth any factual disputes that would require a trial, the claims and cross claims against Sub-zero and Scotsman must be, and hereby are, severed and dismissed.

The general contractor's and plumber's motions for summary judgment, however, must each be denied. As a general principle of law, a general contractor cannot be held vicariously liable for the torts of its independent subcontractors, absent statutory strict liability. See: Broderick v. Cauldwell-Wingate Co., 301 NY 182, 187 (1950). Some of the arguments presented in opposition to the general contractor's motion seek to draw upon the [*5]legal principles more commonly found in the are of Labor Law and premises liability. See, for example: Segretti v. Shorenstein Company East, LP, 256 AD2d 234 (1st Dep't 1998); Comes v. New York State Electric & Gas Co., 82 NY2d 876 (1993); Carollo v. Tishman Const. and Research Co., Inc. 109 Misc 2d 506 (NY Sup 1981). However, this is neither a labor case, nor are the general contractor's duties nondelegable, as with the owner of a building. The plumber is apparently not an employee of the general contractor, but an independent (sub) contractor. Chainani v. Board of Education, 87 NY2d 370 (1995). Therefore, common law principles of negligence apply.

The general contractor and plumber have failed to eliminate any issues of fact whether either or both of them were negligent. There is factual dispute whether the general contractor supervised and directed the work that its subcontractor (the plumber) did at the Belfer apartment. Mr. Mark testified he was regularly present at the Belfer apartment to supervise the work being done and that he sometimes inspected the work of the subcontractors. See, for example: Greenidge v. HRH Construction Corp.

279 AD2d 400 (1st Dept. 2001). The general contractor does not recall whether it instructed its workers to uncrate the ice maker, but apparently the machine was out of the box and in the kitchen where it would be installed by the plumber. This creates an issue of fact for the jury to decide about whether the general contractor handled the ice maker. There is also an issue of fact whether the machine was mishandled or dropped any point after it was delivered to the Belfer apartment, and if so, who did it.

The plumber is not entitled to summary judgment either because of the factual dispute about whether the ice maker was tested after his men connected to the water line. A failure to test the ice maker could constitute negligence on the part of the plumber.

For the foregoing reasons, only the cross motion of the manufacturer for summary judgment is granted. The other motions by the general contractor and plumber are, however, denied as there are issues of fact that have to be decided at trial.

This case is presently in Mediation 2 before Mediator Bernard Fields. Once mediation is completed, this case will be ready for trial. Plaintiff shall serve a copy of this decision/order on Mediator Fields and also on the Office of Trial Support so that the matter may be calendared for further action.

Conclusion

The motion by the general contractor (Steve Mark, Inc.) and the cross motion by the plumber (N. Pagano Plumbing & Heating Contractors, Ltd.) for summary judgment dismissing the complaint and cross claims against them are each denied for the reasons stated.

The cross motion by the manufacturer (Sub-zero Freezer Company and Scotsman Manufacturing Company) for summary judgment, however, is granted in its entirety. The claims and cross claims against these defendants are hereby severed and dismissed. The Clerk shall enter judgment of dismissal.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This constitutes the decision and order of the court. [*6]

Dated:New York, New York

June 9, 2008So Ordered:

__________________

Hon. Judith J. Gische, JSC