Arthur Richards, Inc. v. 79 Fifth Avenue Co.

88 A.D.2d 517, 450 N.Y.S.2d 13, 1982 N.Y. App. Div. LEXIS 16652

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1982
• Status: Published

Opinions

— Judgment, Supreme Court, New York County (Lee, J.), entered November 24, 1980, which, inter alia, held (i) appellants 79 Fifth Avenue Company and Orda Management to be 20% liable, and (ii) defendant L & D Outerwear to be 80% liable for the occurrence, modified, on the law, by vacating so much thereof as held appellants to be 20% liable, by finding Outerwear to be 100% liable for all the damages and, as modified, affirmed, with costs. The jury found the tenant, L & D Outerwear Co., Inc., to be 80% liable for the overflow that occurred on the sixteenth floor in the building. The jury found 79 Fifth Avenue Company and Orda Management Corporation, the owner and managing agent, to be 20% responsible for the damages. We would hold L & D to be 100% liable for the property damage. The evidence indicates that the appellants informed L & D’s president, Isaac Wertman, that the water would be turned off on Friday. Wertman, in turn, instructed his employee, Norman Glickman, to make sure that all faucets were turned off. However, one faucet was left open in L & D’s premises on the sixteenth floor. As a result, plaintiff’s property on the lower floors was damaged. L & D’s president, Wertman, knew that the water would be turned on before he reopened his shop on that following Monday. Since the appellants did not have access to L & D’s premises on the sixteenth floor, it was L & D’s responsibility to be particularly careful in closing all the faucets. (Cf. Simon-Reigel Cigar Co. v Gordon-Burnham Battery Co., 20 Misc 598.) L & D’s failure to turn off all its faucets is the proximate and sole cause of the flooding. Concur — Murphy, P. J., Silverman and Ross, JJ.