Tuesday, February 23, 2010

Venue of Subrogation Action Left in County Where Fire Occurred -- Partial Summary Judgment on Negligence Liability Granted to Insurer

New York Mar. & Gen. Ins. Co. v. M. Rondon Constr. Corp.
(Sup. Ct., Suffolk Co., 2/18/2010)

Defendant's employee allegedly started a fire with the open flame of a torch being used for plumbing work at the Bohemia, New York residential motel owned by plaintiff's subrogor.  The fire spread to other parts of the premises causing damages for which plaintiff paid its insured over $1,000,000.

Most of this decision relates to the parties' dispute over venue.  Although the court agreed with defendant that plaintiff had improperly venued this insurance subrogation action in Suffolk County because neither party was a resident of Suffolk County, the convenience of certain municipal employee and volunteer firefighter witnesses likely to be called to testify in the action supported keeping the action in Suffolk County, rather than changing it to Queens County.

On plaintiff's motion for summary judgment on liability, defendant did not dispute that its employee was responsible for having started the fire, but argued that the extent of the fire damage was due to plaintiff's subrogor's negligent failure to have fire stops and incombustible material in place to retard the spreading of the fire, which were required by law.  The lack of these required items, according to defendant's engineering expert, “greatly increased the speed of propagation and intensity of the fire to the point where the workmen could not extinguish it.”

In granting plaintiff partial summary judgment on negligence liability but not damages, Suffolk County Supreme Court Justice Paul Baisley held: 
While this submission does not refute the plaintiff's contention that the defendant was responsible for the origin of the fire, it does raise issues as to whether the plaintiff's subrogor was responsible, either in whole or in part, for the extent of the damages.

Accordingly, summary judgment is granted insofar as the court finds that the defendant was negligently liable for the occurrence of the fire but as to extent of the damages caused by the fire and whether the plaintiff's subrogor was responsible to any degree for the extent of the damages, those issues are left for trial.

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