The Following Papers Read on Three Motions (Keyspan)

and One Cross Motion (the Walits' Estates):

In these actions to recover damages for wrongful death and property damage resulting from a single explosion of natural gas, the following motions and cross motion have been consolidated [*2]for disposition and, upon consolidation and after oral argument:

In actions No. 1, 4, and 5, the separate motions of the defendant Keyspan Energy Corporation (Keyspan) for an order, pursuant to CPLR 3212, granting it summary judgment dismissing all claims and cross claims insofar as asserted against it are denied in each of these actions.

In action No. 1, 3, and 5, the combined cross motion of the defendant Stephen D. Morales, as administrator of the estates of Leonard Walit, deceased, and Harriet L. Walit, deceased, for an order, pursuant to CPLR 3212, granting him summary judgment dismissing all claims and cross claims insofar as asserted against these estates is also denied in each of these actions.

Background ^[FN1]

On July 21, 2000,^[FN2] a natural gas explosion occurred in the cellar of the brownstone located at 420 State Street in Brooklyn, New York, in the service territory of Keyspan. The explosion (1) completely destroyed this semi-detached brownstone, turning it into a pile of debris, (2) severely damaged the brownstone at 418 State Street to which it was attached, (3) killed the brownstone's co-owners and residents, Leonard Walit and Harriet L. Walit (the Walits), and (4) also killed a co-owner and resident of the adjacent brownstone at 418 State Street, Leon Khay Corcoran, who was then visiting the Walits in their brownstone. The explosion also destroyed (1) all possessions of the brownstone's sole tenant, Noreen Davidsen, who was not at home at the time, and (2) most of the possessions of the co-owner/resident of the brownstone at 418 State Street, Julian Jackson (now deceased), and of another resident of that brownstone, Francis Aguirre.

A post-incident reconstruction of that day's events established that at about 4:45 p.m. (or three hours before the explosion) a neighbor Melvine Mattos "smelled a very strong' odor of gas" as she passed the brownstone at 420 State Street.^[FN3] At that time, the Walits and their tenant Davidsen were both away from home. The Walits were the first to return home at about 7:35 p.m.;^[FN4] they smelled gas almost immediately, and two minutes later, Mrs. Walit telephoned their next-door neighbor Mr. Corcoran with an urgent request to come over and check out what was going on; Mr. Corcoran went to the brownstone to investigate; he and Mr. Walit went to the cellar, and the explosion occurred 4 minutes later.^[FN5] [*3]

Natural gas to the brownstone was supplied by a Keyspan service line which entered the brownstone's cellar through the wall that was facing the front of State Street. The service line passed through a Keyspan-owned, diaphragm-type gas meter and then connected by house piping to the Walits' boiler, hot-water heater, stove, and dryer.^[FN6] The meter and the meter piping (i.e., the inlet piping to the meter) were Keyspan's responsibility to maintain and repair. The house piping (i.e., the outlet piping from the meter) were the Walits' responsibility to maintain and repair. Gas leaks that occur in the meter piping (i.e., at any point before the meter) do not register on the meter. In contrast, gas leaks that occur in the house piping (i.e., at any point after gas passes through the meter and then leaks through the house piping) are registered in the meter. Keyspan's testing, which was witnessed by the FDNY and the PSC personnel,^[FN7] found both the Walits' meter (which the FDNY had recovered intact from the incident scene) and the in-ground service line to be leak-free. Keyspan also conducted a gas-flow simulation test to determine how much gas could have passed through the Walits' meter.^[FN8] Although the Walits' meter (American AL425; serial no. 9789501) was registered at the maximum gas-flow capacity of 415 cubic feet per hour, Keyspan was able, as part of its laboratory test, to push through this meter a total of 2 cubic feet of gas in as little as 10.62 seconds, or at the flow of 677 cubic feet per hour.^[FN9] The record is unclear whether, in the field conditions rather than in its laboratory, Keyspan would have been able to push gas at the sustained flow of 677 cubic feet per hour through the Walits' meter for at least several consecutive hours, rather than for only 10.62 seconds. Moreover, Keyspan's foreman supervisor Joet Richards — the only deposed individual with some understanding about how gas meters worked — was unsure whether the Walits' meter would have been capable of sustaining this level of gas flow. He testified (at page 84 of his pretrial deposition) that "[w]henever the meter is made to pass per hour, that's what it's going [to] pass. No more than that." He conceded (at pages 87- 88) that he could not comprehend why Keyspan would use a higher flow of 677 cubic feet per hour rather than the Walits' meter's rated capacity of 415 cubic feet per hour. Be that as it may, Keyspan provided the FDNY with a finding [*4]that the gas flow of the Walits' meter was 667 cubic feet per hour. Next, Keyspan provided the FDNY with (1) the Walits' pre-incident gas usage, as recorded on their meter, and (2) their gas usage for approximately the same period in the immediately preceding year. Based on Keyspan's finding that the gas flow of the Walits' meter was 667 cubic feet per hour and further based on Keyspan's representations regarding the magnitude of the Walits' gas usage, the FDNY calculated that 4,711.72 cubic feet of gas had passed through the Walits' meter but could not otherwise be unaccounted for.^[FN10] (It appears that the Walits' boiler was not shut off despite the summer season.^[FN11]) The FDNY concluded that such unaccounted-for gas must have leaked "from an open pipe in the system."^[FN12] The FDNY's calculation and conclusion, as set forth in its investigation report, are worth quoting in full herein:

"1.In a 63 day billing period in 1999 (5/26/00 to 7/27/00), 420 State St. [i.e., the Walits' meter] used 4500 cubic feet of natural gas.

2.In the similar period of 2000 (5/24/00 to 7/12/00, the day following the collapse), 420 State St. used 8900 cubic feet of natural gas.

3.By 1999 standards, the projected average daily usage for that 2000 period is approximately 71.42 cubic feet per day. That translates into a projected 3500 cubic feet of gas usage in a comparable 49 day period.

4.Subtracting the projected 3500 cubic feet from the actual 8900 cubic feet, 5400 cubic feet of natural gas is unaccounted for.

5.The gas at 420 State St. ran freely for 61 minutes following the collapse, until Keyspan shut off the gas in the street [at 2042 hours]. . . . At 677 cubic feet per hour, those 61 minutes would allow 688.28 cubic feet of gas to escape. That now leaves 4711.72 cubic feet of gas unaccounted for.

6.At 677 cubic feet per hour, it would take 6.96 hours to free flow that amount of gas.

7.A time frame shows that the tenant at 420 State St. [i.e., Davidsen] left the building at approximately 1300 hours and the building remained unoccupied until the Walits returned home at approximately 1930 hours, and the collapse was reported at 1941 hours, approximately 6.67 hours after the tenant left the [*5]building. Allowing room for error, the time frame [of 6.67 hours] allows for that amount of gas to free-flow [at the rate of 677 cubic feet per hour] from an open pipe in the system.

8.The appliance located in 420 State St. with the largest BTU/HR input is the Weil McClain boiler model No. E-7-B, an AGA rating of 192,000 BTU/HR. There are 1050 BTUs in 1 cubic [foot] of gas; therefore, if the unit failed, 182.86 cubic feet of gas could escape in one hour (approximately 1281 cubic feet in 7 hours), and it would take 25.77 hours to meet the 4711.72 cubic feet of unaccounted-for gas" (emphasis added).^[FN13]

Whereas the FDNY during its investigation pegged the leak to an "open pipe in the system," the FDNY sidestepped this issue altogether in its final "Fire and Incident" report which it issued shortly before concluding its investigation. There, the FDNY stated that:

"Examination showed that the fire/explosion originated in the subject premises, in the cellar, in an area beyond the service meters which contained gas supply piping, in the vapors of a flammable natural gas/air mixture" (emphasis added).^[FN14]

In its final report, the FDNY identified the house piping as the origin of the fire/explosion, rather than as the origin of the gas leak. As a matter of common sense, a fire/explosion are not the same as a gas leak. However, Supervising Fire Marshal (SFM) Robert Byrnes, at his pretrial deposition, identified the origin of the gas leak in the house piping. He explained that he reached this conclusion by eliminating what he believed to be all other potential causes of the gas leak; namely, the in-ground street line and the Walits' meter. He theorized that if both the in-ground street line and the Walits' meter were leak-free as Keyspan said they were after testing them, then a gas leak must have originated in the house piping, such as from a break in the house piping or in a flexible connector to a gas-fired appliance.^[FN15] But this simplistic elimination of other potential causes of the gas leak does not suffice, without more, to establish actual causation. Significantly, SFM Byrnes' conclusion that the gas leak originated in the house piping could not be confirmed by physical evidence. The broken piping that the FDNY had recovered from the brownstone provided [*6]no clue as to the origin of the gas leak.^[FN16] When SFM Byrnes was questioned closely at his pretrial deposition as to how he arrived at his conclusion that the gas leak originated in the house piping, he repeatedly hedged in his answers and descriptions of what the FDNY found in the course of its investigation. His answers ranged between the two extremes of "we can't be specific" on the one hand and "the most probable cause" on the other hand.^[FN17] It is unclear to the Court whether his vacillation resulted from the insufficient data provided by Keyspan to him and others at the FDNY, his fading memory of the events (his deposition was taken nine years after the incident), or some other reason.

The incident gave rise to six lawsuits, four of which have remained active (actions No. 1, 3, 4, and 5).^[FN18] The former owners and residents of the adjacent brownstone at 418 State Street sued Keyspan and the Walits' estates jointly in action No. 1 and, separately, the Walits' estates alone in action No. 3. The Walits' estates, in turn, sued Keyspan in action No. 4. The Walits' tenant, Ms. Davidsen, separately sued Keyspan and the Walits' estates in action No. 5. The causes of action sounded in common-law negligence and wrongful death.

Keyspan has moved, by separate motions, for summary judgment dismissing the complaints and all cross claims insofar as asserted against it in each of actions No. 1, 4, and 5. The Walits' estates have cross-moved, by a combined cross motion, for summary judgment dismissing the complaints and all cross claims insofar as asserted against them in each of actions No. 1, 3, and 5.

CPLR 3212 (b) provides, in relevant part, that:

"A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. . ." (emphasis added).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [internal citations omitted]). "While the burden of proof is easily defined, satisfying the standard is often elusive" (Andrew Wolfe, Defining and Meeting Forgotten Burdens of Proof, NYLJ, May 6, 2013 at 4, col 2). "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense" (L & D Service Sta., Inc. v Utica First Ins. Co., 103 AD3d 782, 783 [2d Dept 2013]).

Turning to the elements of plaintiffs' claims against Keyspan, no dispute exists that Keyspan may be held liable if it received actual or constructive notice of a gas leak or of a defective piping, and had an adequate opportunity to remedy it (see Algood v 2160-2164 Caton, LLC, 4 AD3d 442, 443 [2d Dept 2003]; Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [2d Dept 1993]). What constitutes actual or constructive notice to a gas utility of a gas leak or a defect in the gas piping is typically a question of fact for the jury (see NY PJI § 2:189).

In support of its initial burden of proof on the lack of notice, Keyspan offers four pieces of [*9]evidence. First, Keyspan offers the deposition testimony of the tenant in the brownstone, Noreen Davidsen, who left the brownstone at 1 p.m. (about seven hours before the explosion), stating that she had never smelled any gas in her garden-level apartment or whenever she visited the cellar in which she stored some of her personal belongings. Aside from this testimony, however, Ms. Davidsen recalled (at pages 24-27 and 152-153 of her pretrial deposition) that, after the incident, she talked to several neighbors who claimed they had smelled a strong odor of gas at about 4 p.m. (or almost four hours before the incident). Second, Keyspan offers the deposition testimony of the brownstone's next-door resident, Francis Aguirre, stating (at page 14) that he smelled no gas either inside or outside his residence at 418 State Street. Mr. Aguirre's deposition testimony is not probative because he did not testify about the gas odor (or a lack thereof) outside the subject brownstone at 420 State Street. In fact, an FDNY investigation report, also submitted by Keyspan, includes notes by an FDNY investigator's interview with a neighbor who "smelled a very strong' odor of gas" as she passed the subject brownstone at about 4:45 p.m.

As for its third and fourth pieces of evidence, Keyspan offers the deposition testimony and an affidavit of Paul Smith, a day-shift dispatch supervisor at the time of the incident, reciting the record searches which he performed. Mr. Smith testified (at page 65 of his pretrial deposition) that he performed only a service-history search and a meter-read search for the brownstone. Although he performed a service-history search for the street block in which the incident occurred, he was unable to recall (at pages 109-110) what time period his search covered, which locations it encompassed, or the number of leak investigations that had been performed during that time. He could only state (at page 111) that his service-history search revealed "[n]o unresolved gas leak investigations and that it provided various accounts on the block that had service calls." However, as he conceded (at page 114), he performed no search for any service-ticket history either for the brownstone itself or for any other house on the street block in which the incident occurred.^[FN23] His deposition testimony regarding the content of Keyspan's records is inadmissible hearsay, as no copy of his service-history search has been provided to the Court.

Mr. Smith's subsequent affidavit does nothing to establish that Keyspan lacked a pre-incident notice of the gas leak. His record search, as explained in his affidavit, was limited to those complaints that either would have come from the subject brownstone at 420 State Street or would have identified the subject brownstone as a gas-leak site.^[FN24] He performed no search for any records [*10]regarding receipt of complaints of gas leaks from the brownstone's neighbors, including a next-door cooperative apartment building at 422 State Street. His failure to search for gas-odor complaints from the brownstone's neighbors is puzzling, considering that such information was available as indicated by an FDNY investigator's note that Keyspan had advised him that "[t]here were no reports of natural gas leaks in the area seventy two hours prior to the subject incident to Brooklyn Union/Keyspan" (emphasis added).^[FN25] As neither the Walits nor their tenant Ms. Davidsen was at home when the gas leak was recognized by their neighbor at about 4:45 p.m., it comes as no surprise that no one from the brownstone reported it. Whether anyone else had telephoned Keyspan before the incident to report a gas leak at the street block at issue is not disclosed by the record. Moreover, the pretrial testimony of the Walits' next door neighbors — nonparties R.N. Sunni Roberta Levinson and R.N. Gail Ann Williams — who resided in the five-story cooperative building at 422 State Street, suggests that Keyspan's procedure in investigating gas-odor complaints was limited to checking the site of the complaint only, with the exclusion of the neighboring sites. According to that pretrial testimony, on or about June 5th (about five weeks before the explosion), those neighbors complained to Keyspan about a strong gas odor in their second-floor apartment; in particular, in the windowless kitchen, the windowed living room, and the windowed bedroom, each of which faced the brownstone's backyard.^[FN26] A Keyspan technician visited their apartment about an hour later that day and confirmed the presence of natural gas in their kitchen (both by smelling its odor and by checking [*11]its level with a meter).^[FN27] The Keyspan technician, however, refused their repeated requests to investigate whether the gas odor emanated from the next-door brownstone (the one that would explode five weeks later), explaining, "[w]e only answer the person that is making the complaint at the address that they make the complaint. It's not our protocol to go to other places to look around for gas" (see Levinson Tr at 18 [emphasis added]). In view of Keyspan's failure to submit to the Court any search results for the prior gas-leak complaints, service history, and service tickets for the brownstone and for the brownstone's neighbors at 416, 418, 422, 430, 432, 438, 442, and 448 State Street, each of which an FDNY investigator had canvassed,^[FN28] there are triable issues of material fact as to whether Keyspan lacked a pre-incident notice of the gas leak and if Keyspan did lack such notice, whether the same was self-imposed, or, in the alternative, if Keyspan did have such notice, whether it had sufficient time to remedy it within the scope of the regulatory requirement that "[a]ny notification of a gas leak or gas odor . . . shall constitute the need for prompt action" by a gas utility (see 16 NYCRR 255.805 [a]). (See Royal v Brooklyn Union Gas Co., 122 AD2d 132, 133 [2d Dept 1986]; Ratomski v Quittner, 214 App Div 186, 188 [1st Dept 1925].)

A gas utility may be held liable if its meter or meter piping was defective (see Reid v Westchester Light. Co., 236 NY 322, 326 [1923]). To be entitled to summary judgment on this basis, Keyspan must demonstrate that a gas leak did not originate from the Walits' meter or the meter piping. To this end, Keyspan offers an FDNY investigator's report ^[FN29] stating that the FDNY investigators witnessed Keyspan testing of the Walits' meter and that it passed a "flow-rate test" indicating that it was leak-free.^[FN30] The finding that the Walits' meter was leak-free, however, does [*12]not eliminate the potentiality that the connection-fitting tightness of the meter piping was inadequate.^[FN31] As Keyspan's gas-meter tester Joet Richards conceded (at page 90 of his pretrial deposition), his testing of the Walits' meter did not account for whether or not there may have been any leaks at the juncture of the meter piping and the Walits' meter. Assuming, without deciding, the validity of Keyspan's theory that the Walits' house piping was leaking as reflected by the increased usage on their meter, this theory does not foreclose a concurrent leak at the connection of the meter piping and their meter.

More fundamentally, Keyspan's proof does not sustain its theory that the cause of the incident was a gas leak in the house piping. The only evidence in this regard comes from an inadmissible and unauthenticated PSC report, dated July 18, 2000, from Mike Henriquez, Junior Engineer, to Joseph Klesin, Supervising Assistant Utility Engineer. This internal report concluded (at page 6), that "[t]he source of the escaping natural gas was downstream of the meter set but was unable to be pinpointed"^[FN32] and that "Brooklyn Union's facilities were not involved in the incident."^[FN33] As Keyspan [*13]has submitted no testimony or affidavit from any individual at the PSC to establish foundation for the admission of this internal report as a business record, such report is hearsay and inadmissible for any purpose in support of Keyspan's summary judgment motion for which relief must be based exclusively on admissible evidence.^[FN34]

Keyspan's next piece of evidence is an FDNY investigation report on the results of Keyspan's gas-flow simulation test for the Walits' meter. Based on the Walits' prior year's usage and the gas flow rate through their meter, the FDNY calculated that it would have taken about 7 hours at a flow rate of 677 cubic feet per hour to account for about 4,712 cubic feet of excessive gas use compared to the prior year's use. The FDNY then isolated the period of about 7 hours on the day of the incident during which both the tenant and the Walits were away from the brownstone. According to the FDNY, it would have taken about 7 hours to account for the lost gas. Because no one was in the brownstone for about 7 hours immediately preceding the incident, the FDNY posited that "[a]llowing room for error, the [7-hour] time frame allows for that amount of gas to free-flow from an open pipe in the system" (emphasis added). This conclusion appears to be factually incorrect because, as noted above, the Walits' meter was rated at only 415 cubic feet per hour and thus could not pass the 677 cubic feet per hour as the FDNY assumed based on Keyspan's report.^[FN35] Apart from [*14]this factual infirmity, the FDNY's conclusion that 4,712 cubic feet of gas escaped from the Walits' meter during the 7 consecutive hours that the tenant and the Walits were absent from the brownstone, amounts to no more than a rank speculation that the house piping was opened up by someone or that it somehow opened up by itself within that time frame. In any event, the FDNY did not specify the origin of the gas leak in the final report it issued at the conclusion of its investigation, and thus the final report superseded any conclusions it reached in its prior investigation reports.

Keyspan's last piece of evidence on the origin of the gas leak — the pretrial testimony of SFM Byrnes — fails to demonstrate as a matter of law that the gas leak originated in the house piping. His pretrial testimony presented a view of only one individual at the FDNY as to the potential location of the gas leak. Neither he nor anyone else from the FDNY had performed any tests on the Walits' meter or the meter piping. Merely because he witnessed Keyspan performing the testing does not mean that Keyspan properly performed it in the first instance. He accepted Keyspan's test results and all of its representations to the FDNY at face value. His technical knowledge of the cause of the incident is second-hand, entirely derived from what Keyspan told him or others at the FDNY.^[FN36] Finally and crucially, his pretrial testimony as to the potential location of the gas leak contradicts that of the FDNY's final report which did not specify the location of the gas leak. In view of the inherently limited nature of the FDNY's investigation, the inadmissibility of the PSC internal report, and Keyspan's failure to provide to the Court any evidence that the gas leak originated in the house piping, there is a triable issue of material fact as to whether the gas leak originated in the house piping (cf. New York Cent. Mut. Fire Ins. Co. v Turnerson's Elec., Inc., 280 AD2d 652, 653 [2d Dept 2001]). Consequently, Keyspan's separate motions for summary judgment are denied without regard to the sufficiency of the opponents' papers. In light of the foregoing, the parties' remaining arguments need not be reached.

The cross motion by the Walits' estates for summary judgment dismissing all claims and cross claims against them in actions No. 1, 3, and 5 is denied because of the aforementioned controversy as to who was responsible for the gas leak. Additionally, the cross motion is untimely with respect to action No. 3, Davidsen v Morales (index No. 20622/01). The cross motion was served on Dec. 27, 2011, which was more than 60 days after the note of issue was filed on Apr. 11, 2011 in action No. 3, and the Walits' estates have failed to demonstrate good cause for the delay (see CPLR 3212 [a]; Kings County Uniform Civil Term Rule, Part C [6]).

Accordingly, it is

ORDERED that Keyspan's separate motions for summary judgment are denied in each of actions No. 1, 4, and 5; and it is further

ORDERED that the Walits' estates' combined cross motion for summary judgment is denied in each of actions No. 1, 3, and 5; and it is further

ORDERED that the captions are amended to reflect the prior dismissal of the defendants City of New York, the Board of Education of the City of New York, and the New York City School Construction Authority; and it is further [*15]

ORDERED that counsel to the Walits' estates in action No. 1 (Sullivan Papain Block McGrath & Canavo P.C.) shall serve a copy of this decision and order with notice of entry on all other counsel appearing in actions No. 1, 3, 4, and 5 and shall file an affidavit of said service with the County Clerk in each of these actions.

The parties are reminded that their next scheduled appearance is in JCP-1 on June 24, 2013.

This decision also constitutes the order of the Court pursuant to Rule 202.8 (g) of the Uniform Rules for the New York State Trial Courts.

E N T E R,

J. S. C.