Preview
INDEX NO. 11671972007
(FILED: NEW YORK COUNTY CLERK 6271872011)
NYSCEF DOC. NO. 119 RECEIVED NYSCEF 02/18/2011
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST
75™ STREET, INC.,
Plaintiff,
NOTICE OF APPEAL
-against-
Index No.: 116719/2007
JEFFREY BOLTON, TINA BOLTON, RCT
CONSTRUCTION CORP. D/B/A RCT, INC., and
MARIAN KAZMIERCZAK D/B/A MARIO
INTERIORS, STARK CARPET CORP., BAJRO
MUSANOVIC D/B/A BARRY CARPET SERVICE,
BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A
ACCURATE ELECTRICAL,
Defendants,
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COUNSELORS:
PLEASE TAKE NOTICE, that defendants JEFFREY BOLTON and TINA BOLTON
hereby appeal to the Supreme Court, Appellate Division, First Department from each and every
part of the Decision and Order of the Supreme Court of the State of New York, County of New
York (einman, P.) dated January 10, 2011 and entered in the office of the clerk of the court on
January 11, 2011, wherein the Court denied defendants JEFFREY and TINA BOLTON’S
motion for summary judgment, and all orders that are adverse to this appellant, both on the law
and the facts.
Dated: New York, New York
February 18, 2011
Yours, ete,
LAW PRICE OF JAMES J. TOOMEY
By: inn
KENNETH BROWN
le~—
Le
Attorneys for Defendant/Appellant
JEFFREY BOLTON and TINA BOLTON
Office & P.O. Address
A 1)
485 Lexington Avenue, 7 Floor
New York, NY 10017
(917) 778-6600
Matter No.: 0917150KB
TO:
David Zwerin, Esq.
WENIG & WENIG, ESQS.
Attomeys for Plaintiff
ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75" STREET, INC
150 Broadway, Suite 911
New York, NY 10038
(212) 374-9840
John Guglielmo, Esq.
ARMIENTI, DEBELLIS, GUGLIELMO & RHODENM, LLP.
Attorneys for Defendant
MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS
170 Old Country Road, Suite 607
Mineola, NY 11501
(516) 877-1202
Jessica Molinares, Esq.
FAUST, GOETZ, SCHENKER & BLEE, LLP
Attorneys for Defendant
RCT CONSTRUCTION CORP. D/B/A RCT, INC
2 Rector Street, 20" Floor
New York, NY, 10006
(212) 363-6900
George Gambeski, Esq.
LAW OFFICE OF DONALD L. FRUM
Attorneys for Defendant
BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE
565 Taxter Road, Suite 150
Elmsford, NY 10523
(914) 347-5522
Milagros Perez, Esq.
PEREZ & VARVARO
Attorneys for Defendant
STARK CARPET CORP
333 Earle Ovington Boulevard
P.O, Box 9372
Uniondale, NY 11553
(516) 745-8310
Tracy L. Frankel, Esq.
FABER, BROCKS & ZANE, LLP
Attorneys for Defendant
BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL
51 Charles Street, 2"! Floor
Mineola, NY 11501
(516) 739-5100
WARSHAW, BURNSTEIN, COHEN, SCHLESINGER & KUH, LLP.
Attomeys for Plaintiff in Related Matter
JEFFREY BOLTON and TINA BOLTON
$55 Fifth Avenue
New York, NY, 10017
(212) 809-7044
Robert J. Finn, Esq.
GWERTZMAN, LEFKOWITZ, BURMAN, SMITH & MARCUS
Attorneys for Plaintiff in Related Matter
AMERICAN INTERNATIONAL INSURANCE COMPANY
A/S/O VICTOR KIAM AND ELENA HAHN
80 Broad Street, 16" Floor
New York, NY 10004
Attorneys for Attorney for Plaintiff in Related Matter
(212) 968-1001
TAKVORIAN & ASSOCIATES, LLC
Attorneys for Plaintiff in Related Matter
PACIFIC INDEMNITY INSURANCE COMPANY A/S/O DAVID ORENTREICH
415 East 80" Street, Suite 1F
New York, NY 10021
(212) 838-3324
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST
757" STREET, INC.,
Plaintiff,
PRE-ARGUMENT
-against- STATEMENT
JEFFREY BOLTON, TINA BOLTON, RCT Index No.: 116719/2007
CONSTRUCTION CORP. D/B/A RCT, INC., and
MARIAN KAZMIERCZAK D/B/A MARIO
INTERIORS, STARK CARPET CORP., BAJRO
MUSANOVIC D/B/A BARRY CARPET SERVICE,
BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A
ACCURATE ELECTRICAL,
Defendants,
--X
SIRS
The title of this action is as set forth above.
2 The full names of the original parties are set forth hereinabove.
3 Counsel for Appellant:
Kenneth B. Brown, Esq.
LAW OFFICE OF JAMES J. TOOMEY
Attorneys for Defendants
JEFFREY BOLTON and TINA BOLTON
485 Lexington Avenue, 7” Floor
New York, NY 10017
(917) 778-6600
4 Counsel for Respondents:
David Zwerin, Esq.
WENIG & WENIG, ESQS.
Attorneys for Plaintiff
ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 757%
STREET, INC
150 Broadway, Suite 911
New York, NY 10038
(212) 374-9840
John Guglielmo, Esq.
ARMIENTI, DEBELLIS, GUGLIELMO & RHODENM, LLP.
Attorneys for Defendant
MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS
170 Old Country Road, Suite 607
Mineola, NY 11501
(516) 877-1202
Jessica Molinares, Esq.
FAUST, GOETZ, SCHENKER & BLEE, LLP
Attorneys for Defendant
RCT CONSTRUCTION CORP. D/B/A RCT, INC
2 Rector Street, 20" Floor
New York, NY, 10006
(212) 363-6900
George Gambeski, Esq.
LAW OFFICE OF DONALD L. FRUM
Attorneys for Defendant
BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE
565 Taxter Road, Suite 150
Elmsford, NY 10523
(914) 347-5522
Milagros Perez, Esq.
PEREZ & VARVARO
Attorneys for Defendant
STARK CARPET CORP
333 Earle Ovington Boulevard
P.O. Box 9372
Uniondale, NY 11553
(516) 745-8310
Tracy L. Frankel, Esq.
FABER, BROCKS & ZANE, LLP
Attorneys for Defendant
BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A
ACCURATE ELECTRICAL
51 Charles Street, 2"4 Bloor
Mineola, NY 11501
(516) 739-5100
5 Counsel for Parties in Related Matter:
WARSHAW, BURNSTEIN, COHEN, SCHLESINGER & KUH
Attorneys for Plaintiffin Related Matter
JEFFREY BOLTON and TINA BOLTON
555 Fifth Avenue
New York, NY, 10017
(212) 809-7044
Robert J. Finn, Esq.
GWERTZMAN, LEFKOWITZ, BURMAN, SMITH & MARCUS
Attorneys for Plaintiff in Related Matter
AMERICAN INTERNATIONAL INSURANCE COMPANY
A/S/O VICTOR KIAM AND ELENA HAHN
80 Broad Street, 16" Floor
New York, NY 10004
Attorneys for Attorney for Plaintiff in Related Matter
(212) 968-1001
TAKVORIAN & ASSOCIATES, LLC
Attorneys for Plaintiff in Related Matter
PACIFIC INDEMNITY INSURANCE COMPANY A/S/O
DAVID ORENTREICH
415 East 80” Street, Suite 1F
New York, NY 10021
(212) 838-3324
6 This appeal is from the decision and order of the Supreme Court of the State of
New York, New York County (Hon. Paul G. Feinman, J.8.C.) dated January 10, 2011, and filed
and entered in the office of the County Clerk of the said Court on January 11,2011. A copy of
said order with the purported Notice of Entry is attached as Exhibit “A”.
7 The nature and object of the cause of action or special proceeding is as follows:
The action is for, among other things, reimbursement of insurance benefits allegedly paid by
plaintiff to its subrogor, 14 East 75" Street, Inc. in connection with a fire that took place on
October 7, 2006 (hereinafter referred to as “the fire”), which originated in condominium unit 8A
(hereinafter referred to as “The Bolton Apartment”) within 14 Hast 75" Street, New York, NY
(hereinafter referred to as “the building”).
8 This appeal is from the decision and order of the Supreme Court of the State of
New York, New York County (Hon. Paul G. Feinman, J.S.C.) that: (V) denied Summary
Judgment to JEFFREY BOLTON and TINA BOLTON (hereinafter referred to as “BOLTON”)
on all claims and cross-claims.
9 BOLTON contends the Trial Court erred in denying the BOLTON’S motion for
Summary Judgment. There is no evidence the BOLTON’S were negligent or that the
BOLTON'S caused the fire at issue. Furthermore, there is no evidence upon which to find the
BOLTON’S vicariously liable for the tort of any contractors involved in this action. In addition,
the BOLTON’S did not spoiliate evidence.
Dated: New York, New York
February 18, 2011
Yours, etc.
Aap
A
LAW, QBFICE OF JAMES J. TOOMEY
By:
KENNETH BROWN
Attorneys for Defendant/Appellant
JEFFREY BOLTON and TINA BOLTON
Office & P.O. Address
485 Lexington Avenue, 7" Floor
New York, NY 10017
(917) 778-6600
Matter No.: 0917150KB
TO:
David Zwerin, Esq.
WENIG & WENIG, ESQS.
Attorneys for Plaintiff
ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75 STREET, INC
150 Broadway, Suite 911
New York, NY 10038
(212) 374-9840
John Guglielmo, Esq.
ARMIENTI, DEBELLIS, GUGLIELMO & RHODENM, LLP.
Attorneys for Defendant
MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS
170 Old Country Road, Suite 607
Mineola, NY 11501
(516) 877-1202
Jessica Molinares, Esq.
FAUST, GOETZ, SCHENKER & BLEE, LLP
Attomeys for Defendant
RCT CONSTRUCTION CORP. D/B/A RCT, INC
2 Rector Street, 20" Floor
New York, NY, 10006
(212) 363-6900
George Gambeski, Esq.
LAW OFFICE OF DONALD L. FRUM
Attorneys for Defendant
BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE
565 Taxter Road, Suite 150
Elmsford, NY 10523
(914) 347-5522
Milagros Perez, Esq.
PEREZ & VARVARO
Attorneys for Defendant
STARK CARPET CORP
333 Earle Ovington Boulevard.
P.Q, Box 9372
Uniondale, NY 11553
(516) 745-8310
Tracy L, Frankel, Esq.
FABER, BROCKS & ZANE, LLP
Attorneys for Defendant
BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A. ACCURATE ELECTRICAL
51 Charles Street, 2"! Floor
Mineola, NY 11501
(516) 739-5100
WARSHAW, BURNSTEIN, COHEN, SCHLESINGER & KUH, LLP.
Attorneys for Plaintiff in Related Matter
JEFFREY BOLTON and TINA BOLTON
555 Fifth Avenue
New York, NY, 10017
(212) 809-7044
Robert J. Finn, Esq,
GWERTZMAN, LEFKOWITZ, BURMAN, SMITH & MARCUS
Attorneys for Plaintiff in Related Matter
AMERICAN INTERNATIONAL INSURANCE COMPANY
A/S/O VICTOR KIAM AND ELENA HAHN
80 Broad Street, 16" Floor
New York, NY 10004
Attorneys for Attorney for Plaintiff in Related Matter
(212) 968-1001
TAKVORIAN & ASSOCIATES, LLC
Attomeys for Plaintiff in Related Matter
PACIFIC INDEMNITY INSURANCE COMPANY A/S/O DAVID ORENTREICH
415 East 80" Street, Suite 1F
New York, NY 10021
(212) 838-3324
EXHIBIT A
PILED: NEW YORK COUNTY CLERK 0 0 19/2007
THE sa RECooNT {2012
NYSCEF DOC.
SUPR EME COURT OF LA ARNY VORIE Some
HON. PAUL G. PART
-PBESENT
9/2007
Index Number: 11 671
| ADMIRAL INDEMNITY INDEX NO, [OF 9/20FEe
| BOLTON, JEFFREY MOTION DATE
605
Sequence Number 005 I MOTION SEQ. NO.
T
SUMMARY JUDGEMEN IMOTION CAL. NO.
‘The folowing papers, numbered 1 to were read or this mation to/for
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits Exhibits
Answering Affidavits — Exhibits
Replying Affidavits
Cross-Motion: G Yes C¥’No
Upon the foregoing papets, it Is orderad that this motion
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Check one (1 FINAL DISPOSITION NON FINAL DISPOSITION
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SUPREME COURT OF THE STATE OF NEW YORE
COUNTY OF NEW YORK: CIVIL TERM: PART i2
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ADMIRAL INDEMNITY COMPANY AISIO 14 EAST Index.No. 116719/07E
5* STREET, INC., ‘Mot. Seq. Nos.
Plaintiff, 05, 006, &.
go?
~ against-
DECISION and ORDER
JEFFREY BOLTON, TINA BOLTON, RCT
CONSTRUCTION CORP. D/B/A RCT, INC. and
MARIAN KAZMIERCZAK D/B/A MARIO
INTERIORS., STARK CARPET CORP., BAIRO
MUSANOVIC D/B/A BARRY CARPET SERVICE,
BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A
ACCURATE ELECTRICAL,
Defendants.
— — eee x
‘Appearances:
For Plato For Defendants Jeffrey Holton and Tina Botton:
Wenig & Wenig, Bsqs. Law OBce of James J. ‘Toomey
By: Kevin Carle, Esq. and David Zwerin, Esq. By: Kenneth Brown, Esq.
550 Broadway, Suite 911 485 Lexington Avenue, 7 Floor
‘New York, NY 10038 ‘New York, NY 10017
For Defendant RCT Corstructlon Carp, a/Wda RCT For Defendant Stark Carpet Corp.:
Construction, Ine. afta RCT, Inc: Perez& Varvaro
Faust Goutz Schenker & ies, LL? By; Alex.M. Terople, Esq,
‘By: Jessica Melineres, Esq. 333 Barle Ovington Boulevard
2Rector Street, 20” Floor P.O. Box 9372
‘New York, NY 10006 Uniondale, NY 11553
or Defendant Marian Karireek iv
“Marjo Interlars:
For Defendant Accurate Electrical sfh/a
Benjamin Drebin and Joseph Drebin d/b/a Accurate
‘Arend, DeBelis,Goplema & Rhoden, LL? Blectrical:
By: John’, Gugligimo, Bsq. Barter Brocks & Zane, LLP
44 Wall Street, 18% Floor By, Tracy L, Frankel, Esq.
New York, NY 10005 St Charies Street, 2% Floor
Mineola, NY 11501
Papers coasidered in review of these motions:
‘Motion Sequence aumber 002:
Papers Emiing Document Number
‘Nolice of motion
‘Affiemation in support 7
‘Affirmation in opposition and exkibits
Exhibits tee, 47-35, $8-67, 6-72,
‘Transeript of oral argament 1
‘Motlon Sequence namber 003:
Papers E-Riling Document Number
Page 1 of 8
Notice of motion 4
“Affirmation in suppan as eshte 4S
Aifiraation in opposit 7
Reply Amimation 103
Motion Sequence number 004:
‘apers E Fling Document Number
Notice of motion
Affirmation in sepport and exhibits an
Memo of law in support
Motion Sequence number 005:
Papers E-Filng Document Number
‘Notice of motion and affirmation in support
‘Memo of Law and exhibits nm
Affirmation in opposition
Motion Sequence number 008:
ers E-Fiting Document Number
Notice of motion, affimation in support and
exhibits 83
Affirraation in opposition 99
Reply affirmation Jo
‘Motion Sequence number 007:
pers E-Filing Document Number
Notice of motion and effismetion in support and
exhibits 8685
‘Affirmation in gpposition 300
Reply affirmation and exbibits ior
PAUL G. FEINMAN, J:
Motions bearing sequence numbers 002, 003, 004, 005, 006, and 007 are consolidated for
the purpose of this decision and order.
‘By motion bearing sequence number 002, plaintiff moves to strike the answer of
defendants Jeffrey Bolton and Tina Bolton on the ground of spoliation of evidence (see CPLR
3126 (3)
By motion bearing sequence number 003, RCT moves for summary judgment dismissing
the complaint and cross claims asserted against it. :
' Plaintiff characterizes the motion as one forsummary judement but the primary relief
sought is the striking of the Boltons* answer on the ground of spoliation of evidence. The court
will, accordingly, treat it as such.
Page 20f 8
By motion bearing sequence number 004, Accurate also moves for summary judgment
seeking to dismiss the complaint and cross claims asserted against it
By motion bearing sequence number 005, Mario moves for summary judgment seeking to
dismiss the complaint and cross claims asserted against it.
By motion bearing sequence number 006, Stark moves for summary judgment seeking to
dismiss the complaint and cross claims asserted against it .
By motion bearing sequence number 007, Jefitsy Bolton and Tina Bolton (*oltons”)
move to dismiss the complaint and cross claims asserted against them.
For the reasons discussed below, each and every one of the motions is denied in part and
granted in part.
Background
‘The facts of this case are fully set forth in the decision and order issued by this court in
the related matter, Bolton v RCT Const. Corp, Sup Ct, NY County, Jan. 10, 2011, Feinman, J.
index No. 108271/07B,
In short, this negligence action arises out of ire thet occurred on October 7, 2006 which
originated in apartment 8A owned by defendants Jeffrey Bolton and Tina Bolton, Plaintiff
Admiral Indemnity settled a claim by its subrogor, 14 East 75" Street, Inc. and commenced this
action which was later joined with Bolten v RCT Const. Corp., index No. 108271/07E, Pac.
Indem, Ins, Co, v RCT Const. Corp., 109287/09, and Am. Intl, Ins, Co. v RCT Inc., 106500/07 for
the purposes of trial and discovery (Dot. 64). Now, despite the fact that the record is replete with
questions of fact, plaintiff, RCT, Mario, Accurate, Stark, and the Boltons have each sought
summary judginent.
Page of 8
Analysis
Motion Sequence Number 002
Plaintiff characterizes its motion as one “pursuant to CPLR §3212 granting summary’
judgment in favor of the plaintiff and striking the answer of defendants Hefizey) Blolton] and
T[ina} B[olton} on the grounds of spoliation of evidence” (Doc. 57 4 2). Because the primery
telief sought is to strike a pleading forspotiation of evidence, this court will treat the motion as
‘one made pursuantto CPLR 3126 (3).
Essentially, plaintiff argues that the Bolton answer should stricken because “Admital
Indemnity has been severely prejudiced such that it is unable to prove its claim with incisive
evidence as a result of the Bolton's spoliation” Doc, 57 | 26).
“(T]he determination of an appropriate sanction pursuant to.CPLR 3126 lies in the trial
courts disoretion and should not be set aside absenta clear abuse of discretion” (De Socio v 136
E, S6ih St. Owners, Inc., 74 ADSd 606, 607 [Ist Dept 2010]). Such sanctions range fom the
imposition of costs, preclusion of evidence, or entitlement to an appropriate jury charge.
Intentional or even negligent disposal of “crucial items of evidence” could warrantthe striking of
a pleading (Baldwin v Gerard Ave,, LLC, 58 AD3d 484, 485 [1st Dept 2010], quoting Kirklandv
New York City Hous. Auth, 236 AD2d 176, 173 [1st Dept 1977]). "In gauging the severity of the
sanction to impose on a spoliator, the court must examine the extent that the spoliation of the
evidence may prejudice a party and whether a dismissal will be necessary as a matterof
elementary fairaess” (PII 1:90, comment).
In opposition, the Boltons argues that the law of the case dootrine precludes this court
from granting plaintiff's motion because the court “has already ruled on the purported
.
Page
4 of 8
‘spoliation’ claims, end held, es a remedy, thet the Bolton's were required to produced their
expert reports and also to produce their experts for depositions" (Doc. #11).
This court has elready addressed why this argument is unpersuasive in the decision and
order of the related matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan, 10, 2011,
Feinman, J. index No. 108271/07E and the pertinent reasoning and analysis of that decision is
deemed fully incorporated herein, in short, this argument misconstrues this court's order dated
March 20, 2010, which was not by any means prescribing a remedy, let alone the sole remedy as
plaintiffs would argue, for the spoliation.
Nevertheless, as this court has also already determined, the ypoliation is not attributable
to Jeffrey and Tina Boltonto such an extent as to warrant the striking of a pleading. Such a
sanction would be too harsh because the record before this court dees not indicate that plaintiffs
conduct constituted intentional spoliation. The court appreciates how plaintiff's ability to
prosecute its claims has been impeired, but a trier of fact should determine whether the plaintiff
has met its burden, Instead, (he court finds that e proper balancewould be found by granting
plaintif's motion only to the extent that plaintiff shal be entitled to an appropriate jury
instruction, to be crafted by the trial judge, be it an adverse inference charge, or otherwise (see
PIV1:77).
Th Motion Sequence Number 003 :
RCT moves for summary judgment dismissing the coraplaint and cross claims as against
it, arguing that “plaintiff
has failed to establish a specific cause of the subject fire” (Doc. 45 9
2}-22), RCT’s motion is denied for same reasons that branch of RCT’s motion was denied in the
related matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J, index
Page Sof 8
‘No. 108271/07E and the pertinent reasoning and anelysis ofthat decision is deemed fully
incorporated herein. Specifically, RCT improperly attempts to place the initial burden onto
plaintiffs despite the fact that RCT is the summary judgment movant and there are strong
indications that RCT was the project's general contractor and performed services on the premises
on October 6, 2006, the day before the incident.
m1. Motion Sequence Number 004
* Accurate also moves for summary judgment seeking to dismiss the complaint and crass
claims asserted against it (Doc. 80). Accurate’s motion is denied for same reasons that branch of
its motion was denied in the related matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan.
10, 2011, Feinman, J. index No. 108271/07E and the pertinent reasoning and analysis of that
decision is deemed fully incorporated herein. Namely, Accurate’s focus on those portions of the
experts reports that indicate that the fire was not caused by electrical issues is unpersuasive
because the experts reports are conslcting, inconclusive, and certainly lend themselves to varying
interpretations.
WwW, Motion Sequence Number 005
Mario moves for summary judgment seeking to dismiss the complaint and cross claims as
against it. Mario’s motion is denied for same reasons that branch of its motion was denied in the
elated matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J. index
No. 108271/07E and the pertineut reasoning and analysis of that decision is dgemed fully
incorporated herein, Specifically, there are questions offact with respect to the cause of ignition
and/or the exacerbation thereafter which may or may not be atizibutable, in whole or in part to
Matio in light of Upstate’s report and the Scala affidavit which identify and explain the
Page6 of 8
a
composition of the debris left In the laundry room. Mario's focus on the allegedly speculative
nature of plaintiff's allegations are also unavailing inasmuch as it is Marios burden, as the
movant, to establish a prima facie entitlement to summary judgment as a matter of law which it
has not done.
ve Motion Sequence Number 006
Stark moves for summary judgment seeking to distass the complaint as agains it and all
cross claims, Stark’s motion is denied for same reasons that branch of its motion was denied in
the related matter Bolton v RCT Const, Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J.
index No, 108271/07E and the pertinent reasoning and analysis of that decision is deemed fully
incorporated herein. Aside from Stark’s improper atterapt to place the initial burden upon
plaintiffs, an issue of fact exists over the entity or entities who were responsible for placing the
debris in the laundry room, There are indications that Bary installed carpeting at the apartment
on the day of the fire and despite Stark’s conclusory and self-serving assertions that Bary was an
independent contractor, the extent of Stark's control and/or supervision over theic conduct has
not been determined as a matter of law (Doc, 83 17). Because carpeting debris or scraps may
have caused the fire, and given the indications that both Bary and Stark may have shared the
responsibility for removing the same, issves of fact preclude summary judgment, Causation
cannot be determined on the extant record and Stark's motion for summary judgment must be
denied.
VI. Motion Sequence Number 007
The Boitons also move for summary judgaent seekingto dismiss the complaint as
against them and cross claims. Whether, as the complaint alleges the Boltons’ “agents, servants
Page
7 of 8
a
andlor employees” were negligent and whether the Bollos are therefore vicariously iable isan
unresolved question of fact despite tHe fact that it is undisputed that at the time of the fire the
Boltons had never moved into the apartment and were in Washington D.C. when the fire
occurred (Doc. 3 $5). Notwithstanding the {uct thet plaintif’s entiré opposition is premised
upon the Boltons’ alleged spoliation of evidence, the Boltons’ motion must be denied,
Accordingly, itis
ORDERED that motions bearing sequence numbers 002, 003, 004, 005, 006, and 007 are
denied in their entirety excep/ to the extent that parties having claims or cross claims against
Jeffrey Bolton and Tina Bolion are entitled (o en appropriate jury instruction, to be crafted by the
trial judge, be itan adverse inference charge or otherwise; and it is further
ORDERED that themovants shall serve a copy of this order on all partics, third-parties,
and upon the Clerks of Trial Support and Motion Support; and it is further
ORDERED that the parties are directed to appear before Mediation-I as scheduled on
Jenuary
21, 2011 at 10 an.
fener
ut A
‘This constitutes the decision and order of the court,
Dated: January 10, 201}
New York, New York JISC.
cg yn 290 08 8 30
Page 8 of 8
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No. :108271/07
“ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75TH STRE , INC, |. ~~~
Plaintiff,
-against-
JEFFREY BOLTON, TINA BOLTON, RCT CONSTRUCTION CORP. D/B/A RCT, INC. AND
MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS, STARK CARPET CORP., BAJRO
MUSANOVIC D/B/A BARRY CARPET SERVICE, BENJAMIN DREBIN AND JOSEPH DREBIN
D/B/A ACCURATE ELECTRICAL,
Defendants.
NOTICE OF APPEAL AND PRE-ARGUMENT STATEMENT
Law Office of
JAMES J. TOOMEY
Attorneys for Defendants
JEFFREY BOLTON AND TINA BOLTON
Office & P.O. Address
485 Lexington Avenue, 7‘» Floor
New York, New York 10017
Tel. No.: (917) 778-6600
Fax No.: (917) 778-7020
(917) 778-7022
Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New
York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained
in the annexed document are not frivolous.
Dated: Signature:
Print Signer’s Names: KENNETH B. BROWN, ESQ.
Service of a copy of the within is hereby admitted.
Dated:
Attorneys for JEFFREY BOLTON AND TINA BOLTON
NOTICE OF ENTRY:
PLEASE TAKE NOTICE that the within is a true copy of an order entered in office of the Clerk of the above
Court on the day of 200
NOTICE OF SETTLEMENT:
PLEASE TAKE NOTICE that the within proposed order will be presented for settlement and entry at the
Courthouse on the day of 200 at 10:00 a.m. at the office of the Clerk of the Part of this Court
where the within described motion was heard.
Dated: New York, New York Law Office of
JAMES J. TOOMEY
Attorneys for Defendants
As Designated Above
Preview
INDEX NO. 11671972007 (FILED: NEW YORK COUNTY CLERK 6271872011) NYSCEF DOC. NO. 119 RECEIVED NYSCEF 02/18/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK mene eee ne een een n ene ne enn een ee nineteen eee eee nena ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75™ STREET, INC., Plaintiff, NOTICE OF APPEAL -against- Index No.: 116719/2007 JEFFREY BOLTON, TINA BOLTON, RCT CONSTRUCTION CORP. D/B/A RCT, INC., and MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS, STARK CARPET CORP., BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE, BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL, Defendants, wanna nnn nn nanan in nen nen eee nae nnnnnennnenenene COUNSELORS: PLEASE TAKE NOTICE, that defendants JEFFREY BOLTON and TINA BOLTON hereby appeal to the Supreme Court, Appellate Division, First Department from each and every part of the Decision and Order of the Supreme Court of the State of New York, County of New York (einman, P.) dated January 10, 2011 and entered in the office of the clerk of the court on January 11, 2011, wherein the Court denied defendants JEFFREY and TINA BOLTON’S motion for summary judgment, and all orders that are adverse to this appellant, both on the law and the facts. Dated: New York, New York February 18, 2011 Yours, ete, LAW PRICE OF JAMES J. TOOMEY By: inn KENNETH BROWN le~— Le Attorneys for Defendant/Appellant JEFFREY BOLTON and TINA BOLTON Office & P.O. Address A 1) 485 Lexington Avenue, 7 Floor New York, NY 10017 (917) 778-6600 Matter No.: 0917150KB TO: David Zwerin, Esq. WENIG & WENIG, ESQS. Attomeys for Plaintiff ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75" STREET, INC 150 Broadway, Suite 911 New York, NY 10038 (212) 374-9840 John Guglielmo, Esq. ARMIENTI, DEBELLIS, GUGLIELMO & RHODENM, LLP. Attorneys for Defendant MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS 170 Old Country Road, Suite 607 Mineola, NY 11501 (516) 877-1202 Jessica Molinares, Esq. FAUST, GOETZ, SCHENKER & BLEE, LLP Attorneys for Defendant RCT CONSTRUCTION CORP. D/B/A RCT, INC 2 Rector Street, 20" Floor New York, NY, 10006 (212) 363-6900 George Gambeski, Esq. LAW OFFICE OF DONALD L. FRUM Attorneys for Defendant BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE 565 Taxter Road, Suite 150 Elmsford, NY 10523 (914) 347-5522 Milagros Perez, Esq. PEREZ & VARVARO Attorneys for Defendant STARK CARPET CORP 333 Earle Ovington Boulevard P.O, Box 9372 Uniondale, NY 11553 (516) 745-8310 Tracy L. Frankel, Esq. FABER, BROCKS & ZANE, LLP Attorneys for Defendant BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL 51 Charles Street, 2"! Floor Mineola, NY 11501 (516) 739-5100 WARSHAW, BURNSTEIN, COHEN, SCHLESINGER & KUH, LLP. Attomeys for Plaintiff in Related Matter JEFFREY BOLTON and TINA BOLTON $55 Fifth Avenue New York, NY, 10017 (212) 809-7044 Robert J. Finn, Esq. GWERTZMAN, LEFKOWITZ, BURMAN, SMITH & MARCUS Attorneys for Plaintiff in Related Matter AMERICAN INTERNATIONAL INSURANCE COMPANY A/S/O VICTOR KIAM AND ELENA HAHN 80 Broad Street, 16" Floor New York, NY 10004 Attorneys for Attorney for Plaintiff in Related Matter (212) 968-1001 TAKVORIAN & ASSOCIATES, LLC Attorneys for Plaintiff in Related Matter PACIFIC INDEMNITY INSURANCE COMPANY A/S/O DAVID ORENTREICH 415 East 80" Street, Suite 1F New York, NY 10021 (212) 838-3324 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK meen teen nnn ne ee een eee ane ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 757" STREET, INC., Plaintiff, PRE-ARGUMENT -against- STATEMENT JEFFREY BOLTON, TINA BOLTON, RCT Index No.: 116719/2007 CONSTRUCTION CORP. D/B/A RCT, INC., and MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS, STARK CARPET CORP., BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE, BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL, Defendants, --X SIRS The title of this action is as set forth above. 2 The full names of the original parties are set forth hereinabove. 3 Counsel for Appellant: Kenneth B. Brown, Esq. LAW OFFICE OF JAMES J. TOOMEY Attorneys for Defendants JEFFREY BOLTON and TINA BOLTON 485 Lexington Avenue, 7” Floor New York, NY 10017 (917) 778-6600 4 Counsel for Respondents: David Zwerin, Esq. WENIG & WENIG, ESQS. Attorneys for Plaintiff ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 757% STREET, INC 150 Broadway, Suite 911 New York, NY 10038 (212) 374-9840 John Guglielmo, Esq. ARMIENTI, DEBELLIS, GUGLIELMO & RHODENM, LLP. Attorneys for Defendant MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS 170 Old Country Road, Suite 607 Mineola, NY 11501 (516) 877-1202 Jessica Molinares, Esq. FAUST, GOETZ, SCHENKER & BLEE, LLP Attorneys for Defendant RCT CONSTRUCTION CORP. D/B/A RCT, INC 2 Rector Street, 20" Floor New York, NY, 10006 (212) 363-6900 George Gambeski, Esq. LAW OFFICE OF DONALD L. FRUM Attorneys for Defendant BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE 565 Taxter Road, Suite 150 Elmsford, NY 10523 (914) 347-5522 Milagros Perez, Esq. PEREZ & VARVARO Attorneys for Defendant STARK CARPET CORP 333 Earle Ovington Boulevard P.O. Box 9372 Uniondale, NY 11553 (516) 745-8310 Tracy L. Frankel, Esq. FABER, BROCKS & ZANE, LLP Attorneys for Defendant BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL 51 Charles Street, 2"4 Bloor Mineola, NY 11501 (516) 739-5100 5 Counsel for Parties in Related Matter: WARSHAW, BURNSTEIN, COHEN, SCHLESINGER & KUH Attorneys for Plaintiffin Related Matter JEFFREY BOLTON and TINA BOLTON 555 Fifth Avenue New York, NY, 10017 (212) 809-7044 Robert J. Finn, Esq. GWERTZMAN, LEFKOWITZ, BURMAN, SMITH & MARCUS Attorneys for Plaintiff in Related Matter AMERICAN INTERNATIONAL INSURANCE COMPANY A/S/O VICTOR KIAM AND ELENA HAHN 80 Broad Street, 16" Floor New York, NY 10004 Attorneys for Attorney for Plaintiff in Related Matter (212) 968-1001 TAKVORIAN & ASSOCIATES, LLC Attorneys for Plaintiff in Related Matter PACIFIC INDEMNITY INSURANCE COMPANY A/S/O DAVID ORENTREICH 415 East 80” Street, Suite 1F New York, NY 10021 (212) 838-3324 6 This appeal is from the decision and order of the Supreme Court of the State of New York, New York County (Hon. Paul G. Feinman, J.8.C.) dated January 10, 2011, and filed and entered in the office of the County Clerk of the said Court on January 11,2011. A copy of said order with the purported Notice of Entry is attached as Exhibit “A”. 7 The nature and object of the cause of action or special proceeding is as follows: The action is for, among other things, reimbursement of insurance benefits allegedly paid by plaintiff to its subrogor, 14 East 75" Street, Inc. in connection with a fire that took place on October 7, 2006 (hereinafter referred to as “the fire”), which originated in condominium unit 8A (hereinafter referred to as “The Bolton Apartment”) within 14 Hast 75" Street, New York, NY (hereinafter referred to as “the building”). 8 This appeal is from the decision and order of the Supreme Court of the State of New York, New York County (Hon. Paul G. Feinman, J.S.C.) that: (V) denied Summary Judgment to JEFFREY BOLTON and TINA BOLTON (hereinafter referred to as “BOLTON”) on all claims and cross-claims. 9 BOLTON contends the Trial Court erred in denying the BOLTON’S motion for Summary Judgment. There is no evidence the BOLTON’S were negligent or that the BOLTON'S caused the fire at issue. Furthermore, there is no evidence upon which to find the BOLTON’S vicariously liable for the tort of any contractors involved in this action. In addition, the BOLTON’S did not spoiliate evidence. Dated: New York, New York February 18, 2011 Yours, etc. Aap A LAW, QBFICE OF JAMES J. TOOMEY By: KENNETH BROWN Attorneys for Defendant/Appellant JEFFREY BOLTON and TINA BOLTON Office & P.O. Address 485 Lexington Avenue, 7" Floor New York, NY 10017 (917) 778-6600 Matter No.: 0917150KB TO: David Zwerin, Esq. WENIG & WENIG, ESQS. Attorneys for Plaintiff ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75 STREET, INC 150 Broadway, Suite 911 New York, NY 10038 (212) 374-9840 John Guglielmo, Esq. ARMIENTI, DEBELLIS, GUGLIELMO & RHODENM, LLP. Attorneys for Defendant MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS 170 Old Country Road, Suite 607 Mineola, NY 11501 (516) 877-1202 Jessica Molinares, Esq. FAUST, GOETZ, SCHENKER & BLEE, LLP Attomeys for Defendant RCT CONSTRUCTION CORP. D/B/A RCT, INC 2 Rector Street, 20" Floor New York, NY, 10006 (212) 363-6900 George Gambeski, Esq. LAW OFFICE OF DONALD L. FRUM Attorneys for Defendant BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE 565 Taxter Road, Suite 150 Elmsford, NY 10523 (914) 347-5522 Milagros Perez, Esq. PEREZ & VARVARO Attorneys for Defendant STARK CARPET CORP 333 Earle Ovington Boulevard. P.Q, Box 9372 Uniondale, NY 11553 (516) 745-8310 Tracy L, Frankel, Esq. FABER, BROCKS & ZANE, LLP Attorneys for Defendant BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A. ACCURATE ELECTRICAL 51 Charles Street, 2"! Floor Mineola, NY 11501 (516) 739-5100 WARSHAW, BURNSTEIN, COHEN, SCHLESINGER & KUH, LLP. Attorneys for Plaintiff in Related Matter JEFFREY BOLTON and TINA BOLTON 555 Fifth Avenue New York, NY, 10017 (212) 809-7044 Robert J. Finn, Esq, GWERTZMAN, LEFKOWITZ, BURMAN, SMITH & MARCUS Attorneys for Plaintiff in Related Matter AMERICAN INTERNATIONAL INSURANCE COMPANY A/S/O VICTOR KIAM AND ELENA HAHN 80 Broad Street, 16" Floor New York, NY 10004 Attorneys for Attorney for Plaintiff in Related Matter (212) 968-1001 TAKVORIAN & ASSOCIATES, LLC Attomeys for Plaintiff in Related Matter PACIFIC INDEMNITY INSURANCE COMPANY A/S/O DAVID ORENTREICH 415 East 80" Street, Suite 1F New York, NY 10021 (212) 838-3324 EXHIBIT A PILED: NEW YORK COUNTY CLERK 0 0 19/2007 THE sa RECooNT {2012 NYSCEF DOC. SUPR EME COURT OF LA ARNY VORIE Some HON. PAUL G. PART -PBESENT 9/2007 Index Number: 11 671 | ADMIRAL INDEMNITY INDEX NO, [OF 9/20FEe | BOLTON, JEFFREY MOTION DATE 605 Sequence Number 005 I MOTION SEQ. NO. T SUMMARY JUDGEMEN IMOTION CAL. NO. ‘The folowing papers, numbered 1 to were read or this mation to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause — Affidavits Exhibits Answering Affidavits — Exhibits Replying Affidavits Cross-Motion: G Yes C¥’No Upon the foregoing papets, it Is orderad that this motion we es eran AOE WTR, oo panera s REE‘DECISION undiky 22 AN ae ou THE pra, 6% us Fo az ge co G9 Bo werd ozo! ak pry Dated: i[ofeon a ASE, Check one (1 FINAL DISPOSITION NON FINAL DISPOSITION Check if appropriate: OC Do NOT Post UO REFERENCE SUPREME COURT OF THE STATE OF NEW YORE COUNTY OF NEW YORK: CIVIL TERM: PART i2 stent ce cnet aX ADMIRAL INDEMNITY COMPANY AISIO 14 EAST Index.No. 116719/07E 5* STREET, INC., ‘Mot. Seq. Nos. Plaintiff, 05, 006, &. go? ~ against- DECISION and ORDER JEFFREY BOLTON, TINA BOLTON, RCT CONSTRUCTION CORP. D/B/A RCT, INC. and MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS., STARK CARPET CORP., BAIRO MUSANOVIC D/B/A BARRY CARPET SERVICE, BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL, Defendants. — — eee x ‘Appearances: For Plato For Defendants Jeffrey Holton and Tina Botton: Wenig & Wenig, Bsqs. Law OBce of James J. ‘Toomey By: Kevin Carle, Esq. and David Zwerin, Esq. By: Kenneth Brown, Esq. 550 Broadway, Suite 911 485 Lexington Avenue, 7 Floor ‘New York, NY 10038 ‘New York, NY 10017 For Defendant RCT Corstructlon Carp, a/Wda RCT For Defendant Stark Carpet Corp.: Construction, Ine. afta RCT, Inc: Perez& Varvaro Faust Goutz Schenker & ies, LL? By; Alex.M. Terople, Esq, ‘By: Jessica Melineres, Esq. 333 Barle Ovington Boulevard 2Rector Street, 20” Floor P.O. Box 9372 ‘New York, NY 10006 Uniondale, NY 11553 or Defendant Marian Karireek iv “Marjo Interlars: For Defendant Accurate Electrical sfh/a Benjamin Drebin and Joseph Drebin d/b/a Accurate ‘Arend, DeBelis,Goplema & Rhoden, LL? Blectrical: By: John’, Gugligimo, Bsq. Barter Brocks & Zane, LLP 44 Wall Street, 18% Floor By, Tracy L, Frankel, Esq. New York, NY 10005 St Charies Street, 2% Floor Mineola, NY 11501 Papers coasidered in review of these motions: ‘Motion Sequence aumber 002: Papers Emiing Document Number ‘Nolice of motion ‘Affiemation in support 7 ‘Affirmation in opposition and exkibits Exhibits tee, 47-35, $8-67, 6-72, ‘Transeript of oral argament 1 ‘Motlon Sequence namber 003: Papers E-Riling Document Number Page 1 of 8 Notice of motion 4 “Affirmation in suppan as eshte 4S Aifiraation in opposit 7 Reply Amimation 103 Motion Sequence number 004: ‘apers E Fling Document Number Notice of motion Affirmation in sepport and exhibits an Memo of law in support Motion Sequence number 005: Papers E-Filng Document Number ‘Notice of motion and affirmation in support ‘Memo of Law and exhibits nm Affirmation in opposition Motion Sequence number 008: ers E-Fiting Document Number Notice of motion, affimation in support and exhibits 83 Affirraation in opposition 99 Reply affirmation Jo ‘Motion Sequence number 007: pers E-Filing Document Number Notice of motion and effismetion in support and exhibits 8685 ‘Affirmation in gpposition 300 Reply affirmation and exbibits ior PAUL G. FEINMAN, J: Motions bearing sequence numbers 002, 003, 004, 005, 006, and 007 are consolidated for the purpose of this decision and order. ‘By motion bearing sequence number 002, plaintiff moves to strike the answer of defendants Jeffrey Bolton and Tina Bolton on the ground of spoliation of evidence (see CPLR 3126 (3) By motion bearing sequence number 003, RCT moves for summary judgment dismissing the complaint and cross claims asserted against it. : ' Plaintiff characterizes the motion as one forsummary judement but the primary relief sought is the striking of the Boltons* answer on the ground of spoliation of evidence. The court will, accordingly, treat it as such. Page 20f 8 By motion bearing sequence number 004, Accurate also moves for summary judgment seeking to dismiss the complaint and cross claims asserted against it By motion bearing sequence number 005, Mario moves for summary judgment seeking to dismiss the complaint and cross claims asserted against it. By motion bearing sequence number 006, Stark moves for summary judgment seeking to dismiss the complaint and cross claims asserted against it . By motion bearing sequence number 007, Jefitsy Bolton and Tina Bolton (*oltons”) move to dismiss the complaint and cross claims asserted against them. For the reasons discussed below, each and every one of the motions is denied in part and granted in part. Background ‘The facts of this case are fully set forth in the decision and order issued by this court in the related matter, Bolton v RCT Const. Corp, Sup Ct, NY County, Jan. 10, 2011, Feinman, J. index No. 108271/07B, In short, this negligence action arises out of ire thet occurred on October 7, 2006 which originated in apartment 8A owned by defendants Jeffrey Bolton and Tina Bolton, Plaintiff Admiral Indemnity settled a claim by its subrogor, 14 East 75" Street, Inc. and commenced this action which was later joined with Bolten v RCT Const. Corp., index No. 108271/07E, Pac. Indem, Ins, Co, v RCT Const. Corp., 109287/09, and Am. Intl, Ins, Co. v RCT Inc., 106500/07 for the purposes of trial and discovery (Dot. 64). Now, despite the fact that the record is replete with questions of fact, plaintiff, RCT, Mario, Accurate, Stark, and the Boltons have each sought summary judginent. Page of 8 Analysis Motion Sequence Number 002 Plaintiff characterizes its motion as one “pursuant to CPLR §3212 granting summary’ judgment in favor of the plaintiff and striking the answer of defendants Hefizey) Blolton] and T[ina} B[olton} on the grounds of spoliation of evidence” (Doc. 57 4 2). Because the primery telief sought is to strike a pleading forspotiation of evidence, this court will treat the motion as ‘one made pursuantto CPLR 3126 (3). Essentially, plaintiff argues that the Bolton answer should stricken because “Admital Indemnity has been severely prejudiced such that it is unable to prove its claim with incisive evidence as a result of the Bolton's spoliation” Doc, 57 | 26). “(T]he determination of an appropriate sanction pursuant to.CPLR 3126 lies in the trial courts disoretion and should not be set aside absenta clear abuse of discretion” (De Socio v 136 E, S6ih St. Owners, Inc., 74 ADSd 606, 607 [Ist Dept 2010]). Such sanctions range fom the imposition of costs, preclusion of evidence, or entitlement to an appropriate jury charge. Intentional or even negligent disposal of “crucial items of evidence” could warrantthe striking of a pleading (Baldwin v Gerard Ave,, LLC, 58 AD3d 484, 485 [1st Dept 2010], quoting Kirklandv New York City Hous. Auth, 236 AD2d 176, 173 [1st Dept 1977]). "In gauging the severity of the sanction to impose on a spoliator, the court must examine the extent that the spoliation of the evidence may prejudice a party and whether a dismissal will be necessary as a matterof elementary fairaess” (PII 1:90, comment). In opposition, the Boltons argues that the law of the case dootrine precludes this court from granting plaintiff's motion because the court “has already ruled on the purported . Page 4 of 8 ‘spoliation’ claims, end held, es a remedy, thet the Bolton's were required to produced their expert reports and also to produce their experts for depositions" (Doc. #11). This court has elready addressed why this argument is unpersuasive in the decision and order of the related matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan, 10, 2011, Feinman, J. index No. 108271/07E and the pertinent reasoning and analysis of that decision is deemed fully incorporated herein, in short, this argument misconstrues this court's order dated March 20, 2010, which was not by any means prescribing a remedy, let alone the sole remedy as plaintiffs would argue, for the spoliation. Nevertheless, as this court has also already determined, the ypoliation is not attributable to Jeffrey and Tina Boltonto such an extent as to warrant the striking of a pleading. Such a sanction would be too harsh because the record before this court dees not indicate that plaintiffs conduct constituted intentional spoliation. The court appreciates how plaintiff's ability to prosecute its claims has been impeired, but a trier of fact should determine whether the plaintiff has met its burden, Instead, (he court finds that e proper balancewould be found by granting plaintif's motion only to the extent that plaintiff shal be entitled to an appropriate jury instruction, to be crafted by the trial judge, be it an adverse inference charge, or otherwise (see PIV1:77). Th Motion Sequence Number 003 : RCT moves for summary judgment dismissing the coraplaint and cross claims as against it, arguing that “plaintiff has failed to establish a specific cause of the subject fire” (Doc. 45 9 2}-22), RCT’s motion is denied for same reasons that branch of RCT’s motion was denied in the related matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J, index Page Sof 8 ‘No. 108271/07E and the pertinent reasoning and anelysis ofthat decision is deemed fully incorporated herein. Specifically, RCT improperly attempts to place the initial burden onto plaintiffs despite the fact that RCT is the summary judgment movant and there are strong indications that RCT was the project's general contractor and performed services on the premises on October 6, 2006, the day before the incident. m1. Motion Sequence Number 004 * Accurate also moves for summary judgment seeking to dismiss the complaint and crass claims asserted against it (Doc. 80). Accurate’s motion is denied for same reasons that branch of its motion was denied in the related matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J. index No. 108271/07E and the pertinent reasoning and analysis of that decision is deemed fully incorporated herein. Namely, Accurate’s focus on those portions of the experts reports that indicate that the fire was not caused by electrical issues is unpersuasive because the experts reports are conslcting, inconclusive, and certainly lend themselves to varying interpretations. WwW, Motion Sequence Number 005 Mario moves for summary judgment seeking to dismiss the complaint and cross claims as against it. Mario’s motion is denied for same reasons that branch of its motion was denied in the elated matter Bolton v RCT Const. Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J. index No. 108271/07E and the pertineut reasoning and analysis of that decision is dgemed fully incorporated herein, Specifically, there are questions offact with respect to the cause of ignition and/or the exacerbation thereafter which may or may not be atizibutable, in whole or in part to Matio in light of Upstate’s report and the Scala affidavit which identify and explain the Page6 of 8 a composition of the debris left In the laundry room. Mario's focus on the allegedly speculative nature of plaintiff's allegations are also unavailing inasmuch as it is Marios burden, as the movant, to establish a prima facie entitlement to summary judgment as a matter of law which it has not done. ve Motion Sequence Number 006 Stark moves for summary judgment seeking to distass the complaint as agains it and all cross claims, Stark’s motion is denied for same reasons that branch of its motion was denied in the related matter Bolton v RCT Const, Corp., Sup Ct, NY County, Jan. 10, 2011, Feinman, J. index No, 108271/07E and the pertinent reasoning and analysis of that decision is deemed fully incorporated herein. Aside from Stark’s improper atterapt to place the initial burden upon plaintiffs, an issue of fact exists over the entity or entities who were responsible for placing the debris in the laundry room, There are indications that Bary installed carpeting at the apartment on the day of the fire and despite Stark’s conclusory and self-serving assertions that Bary was an independent contractor, the extent of Stark's control and/or supervision over theic conduct has not been determined as a matter of law (Doc, 83 17). Because carpeting debris or scraps may have caused the fire, and given the indications that both Bary and Stark may have shared the responsibility for removing the same, issves of fact preclude summary judgment, Causation cannot be determined on the extant record and Stark's motion for summary judgment must be denied. VI. Motion Sequence Number 007 The Boitons also move for summary judgaent seekingto dismiss the complaint as against them and cross claims. Whether, as the complaint alleges the Boltons’ “agents, servants Page 7 of 8 a andlor employees” were negligent and whether the Bollos are therefore vicariously iable isan unresolved question of fact despite tHe fact that it is undisputed that at the time of the fire the Boltons had never moved into the apartment and were in Washington D.C. when the fire occurred (Doc. 3 $5). Notwithstanding the {uct thet plaintif’s entiré opposition is premised upon the Boltons’ alleged spoliation of evidence, the Boltons’ motion must be denied, Accordingly, itis ORDERED that motions bearing sequence numbers 002, 003, 004, 005, 006, and 007 are denied in their entirety excep/ to the extent that parties having claims or cross claims against Jeffrey Bolton and Tina Bolion are entitled (o en appropriate jury instruction, to be crafted by the trial judge, be itan adverse inference charge or otherwise; and it is further ORDERED that themovants shall serve a copy of this order on all partics, third-parties, and upon the Clerks of Trial Support and Motion Support; and it is further ORDERED that the parties are directed to appear before Mediation-I as scheduled on Jenuary 21, 2011 at 10 an. fener ut A ‘This constitutes the decision and order of the court, Dated: January 10, 201} New York, New York JISC. cg yn 290 08 8 30 Page 8 of 8 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. :108271/07 “ADMIRAL INDEMNITY COMPANY A/S/O 14 EAST 75TH STRE , INC, |. ~~~ Plaintiff, -against- JEFFREY BOLTON, TINA BOLTON, RCT CONSTRUCTION CORP. D/B/A RCT, INC. AND MARIAN KAZMIERCZAK D/B/A MARIO INTERIORS, STARK CARPET CORP., BAJRO MUSANOVIC D/B/A BARRY CARPET SERVICE, BENJAMIN DREBIN AND JOSEPH DREBIN D/B/A ACCURATE ELECTRICAL, Defendants. NOTICE OF APPEAL AND PRE-ARGUMENT STATEMENT Law Office of JAMES J. TOOMEY Attorneys for Defendants JEFFREY BOLTON AND TINA BOLTON Office & P.O. Address 485 Lexington Avenue, 7‘» Floor New York, New York 10017 Tel. No.: (917) 778-6600 Fax No.: (917) 778-7020 (917) 778-7022 Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: Signature: Print Signer’s Names: KENNETH B. BROWN, ESQ. Service of a copy of the within is hereby admitted. Dated: Attorneys for JEFFREY BOLTON AND TINA BOLTON NOTICE OF ENTRY: PLEASE TAKE NOTICE that the within is a true copy of an order entered in office of the Clerk of the above Court on the day of 200 NOTICE OF SETTLEMENT: PLEASE TAKE NOTICE that the within proposed order will be presented for settlement and entry at the Courthouse on the day of 200 at 10:00 a.m. at the office of the Clerk of the Part of this Court where the within described motion was heard. Dated: New York, New York Law Office of JAMES J. TOOMEY Attorneys for Defendants As Designated Above