Tuesday, June 17, 2008

Court Ices Subrogation Claim Against Sub-Zero Ice Maker Maker

Amer. International Ins. Co. v. Sub-Zero Freezer Co.
(Sup. Ct., New York Co., decided 6/9/2008)

An ice maker manufactured by Sub-Zero Freezer Company leaked and caused $144,224.83 in damages to a coop apartment one floor below. American International paid those damages and brought this subrogation action against the ice maker's manufacturers, as well as the general contractor and plumbing company responsible for installing the ice maker.

New York County Supreme Court Justice Judith Gische granted the manufacturers' motion for summary judgment but denied the motions of the GC and plumber.

Justice Gische rejected American International's argument that the doctrine of res ipsa loquitur against the manufacturers because "[e]ven 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 [the manufacturer]." The court held that since the manufacturer defendants had met their burden on their summary judgment motion, through EBT testimony and affidavits, and the parties who opposed that motion did not put forth any factual disputes that would require a trial, the claims and cross claims against the manufacturer defendants had to be dismissed.

In denying summary judgment to the general contractor and plumber, Justice Gische held:

The general contractor [Mark] 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. (citation omitted). 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.

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