In this property damage action, the court consolidates motion sequence nos. 007 and 008 for disposition.

Plaintiff New York Marine and General Insurance Company (NY Marine) a/s/o 632 on Hudson LLC (632 Hudson) moves, pursuant to CPLR 3212, for summary judgment in its favor against defendant Sciascia Electrical Corp. (Sciascia) (motion seq. No. 007).

Sciascia, in turn, moves, pursuant to CPLR 3212, to dismiss the complaint and all cross-claims against it (motion seq. No. 008).

632 Hudson owns a mixed-use building located at 632 Hudson Street, New York County, containing commercial and residential tenants (the building).

In 2008, 632 Hudson engaged defendant LMD Designs, Inc. (LMD), as general contractor, to perform various construction and renovation work at the building. LMD then subcontracted with Sciascia for electrical work in the construction of a roof deck on the building.

On April 18, 2008, a fire damaged the building. In adjustment of 632 Hudson's insurance claim subsequently, NY Marine paid 632 Hudson, its insured, $649,551.24 for the fire damage.

The original action commenced on April 20, 2009, with NY Marine as subrogee claiming that Sciascia and LMD were each negligent and LMD breached its contract with 632 Hudson. Sciascia then commenced a third-party action against 632 Hudson and Karen Lashinsky, the principal of 632 Hudson, demanding contribution and/or indemnification, and alleging breach of contract.

In 2009, NY Marine, as subrogee, brought this action claiming that Sciascia and LMD were each negligent and that LMD breached its contract with 632 Hudson. In 2010, Utica First Insurance Company (Utica) a/s/o Eva Scrivo Salon, Inc. Salon) commenced an action against 632 Hudson, LMD and Sciascia alleging that the negligence of such defendants resulted in property damage to Salon, a commercial tenant in the building who was its insured. By Order dated November 22, 2010, the actions were consolidated for joint discovery and trial. By Order dated December 9, 2013, the court granted NY Marine's motion for a default judgment as against LMD, with damages to be determined at time of trial.

NY Marine moves, pursuant to CPLR 3212, for summary judgment in its favor on the complaint against Sciascia.

Lashinsky testified that she purchased the building in 1991 or 1992. The building was an abandoned sausage factory, which she gutted completely and renovated over the next several years. She rented parts of the building for events, including catered affairs and photo shoots. At the time of the occurrence, she lived in the building.

In 2005, she undertook new construction projects at the building, including pointing bricks and work on the roof. She hired LMD to build the wooden roof deck, which was to be on two levels, three or four steps above the roof. She recalled that LMD and Sciascia installed rope lighting under all of the steps between the roof and the deck. She denied that the use of rope lighting was her idea or at her direction. She presumed that LMD and Sciascia made the decision. She was unable to offer any other facts about the installation, use or maintenance of the rope lighting. She testified that there never was any problem with the rope lighting until the incident.

Lashinsky testified that she was at home in the building when the fire started and that a wedding party was taking place [*2]at the same time.

At his deposition on behalf of Sciascia, Paul Sciascia, the company's president, testified about his experience and that he personally installed rope lighting one other time, in the partially-covered patio area of a restaurant before he did the work at the property in question.

Engaged by LMD, when the roof deck was initially installed in 2005, Sciascia continued to install electrical service. He worked at the direction of LMD at 632 Hudson, with LMD providing verbal instructions. He never discussed the work with Lashinsky or met with her alone. In meetings with Lashinsky and Louis Delgado, LMD's owner, "Louis was the overseer, so I would always refer to Louis."

He installed two outlets on the roof deck, connected to a junction box affixed to the building on the roof. Each outlet, intended for the rope lighting, was wired to the junction box, was installed through its own conduit by Sciascia,. The outlets were under the planks of the roof deck. The rope lighting was plugged into the outlets rather than being hardwired to the junction box, which according to Sciascia "was the application." He did not know the useful life of the rope lighting.

Sciascia identified an invoice for 150 feet of rope lighting, dated September 12, 2005. The rope lighting was cut into four sections, one to be fastened under each of four steps on the wooden deck. The rope lighting was placed so that it would not be kicked by someone on the steps, and was designated as indoor/outdoor. He asserted that he used no extension cords on the roof deck.An outside agency, engaged to investigate by NY Marine, found that the fire originated in a wooden section of a rooftop deck. In support of its motion, NY Marine submits an affidavit by John Ferro (Ferro), a certified fire investigator, who concluded that "the origin and cause of the fire was the improper use of flexible rope lights and [extension] cords to power rope lights." Ferro's analysis of the fire includes an admission that "when the above wiring was shown to our insured, Ms. Lashinsky, she was unable to confirm that this was the precise wiring installed by Sciascia Electric Corp."

Larry A. Wharton (Wharton), a professional engineer engaged by NY Marine, also visited the premises and investigated the cause of the fire. He concluded "that the April 18, 2008 fire occurred as a direct result of the negligent use of an indoor rated extension cord to permanently connect rope lighting strings mounted within or under the exterior roof deck to a source of electrical power." A report by the New York Fire Department stated that the fire originated in the wooden deck on the rooftop, caused by "Electrical Wiring."

NY Marine contends that "Ms. Lashinsky was not informed of, [*3]and did not consent to, the illegal electrical work. She was never given any directions or warning about the rope lighting." Paul Sciascia testified that Lashinsky attended meetings with him and LMD where the electrical work was discussed, although decisions emanated from LMD.

Both Ferro and Wharton point to the improper use of an extension cord as one or the only cause of the fire. Paul Sciascia denied that he used any extension cords in the lighting arrangement of the roof deck. NY Marine claims that Sciascia "continued to perform electrical work upon the Premises until February 2007," fourteen months before the fire occurred. Lashinsky testified that "[n]o one including members of my family, staff . . . or myself ever operated those lights by plugging them in or out[;] nor did we touch them in any way."

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007), citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980). "If there is any doubt as to the existence of a triable issue, the motion should be denied." Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 (1st Dept 2002). "But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment." Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).

There is no evidence that Sciascia installed any extension cord in setting up the rope lighting on the roof deck. Assuming that NY Marine's experts are correct in identifying an inadequate extension cord as the cause of the fire, NY Marine has failed to produce evidence probative on the liability of Sciascia. While Paul Sciascia acknowledged that the outlets for the rope lighting were not easily accessible, they were not permanently sealed off. Even if they were beyond the ordinary reach of Lashinsky or anyone associated with her, there are no facts challenging the benign condition of the rope lighting arrangement as installed by Sciascia. In fact, Lashinsky was unable to identify the faulty wiring as Sciascia's work, in discussion with NY Marine's expert. Therefore, summary judgment against Sciascia, therefore, is not warranted.

Sciascia moves, pursuant to CPLR 3212, for summary judgment dismissing NY Marine's complaint, Utica's complaint and all cross-claims against it. It argues that there is no evidence of [*4]its negligence in this matter. Sciascia states that under its subcontract with LMD, it had no duty to plaintiffs' subrogors, since it cannot be said to have launched an instrument of harm, assumed service or maintenance of the rope lighting installation, or had notice of an unknown party's use of an extension cord after Sciascia's initial installation of the rope lighting.

While it is undisputed that Sciascia originally installed the rope lighting on the roof deck at 632 Hudson, NY Marine does not counter Sciascia's evidence that it was not negligent. The fire, occurring more than two years after Sciascia's installation and traced to a faulty extension cord, which Sciascia denied he ever used, NY Marine does not raise any issues of fact with respect to Sciascia's prima defense. Nor does Sciascia on its own motion have any burden to establish who else might have been responsible for the electrical connections on the roof deck at the time of the fire, which was more than a year after Sciascia left the job. Under these circumstances, Sciascia cannot be found to be negligent and its motion for summary judgment shall be granted.

Accordingly, it is

ORDERED that the Clerk shall enter judgment accordingly.