Eaves Brooks Costume Co. v. Y.B.H. Realty Corp.

149 A.D.2d 652, 540 N.Y.S.2d 464, 1989 N.Y. App. Div. LEXIS 5336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1989
• Status: Published

Opinion

— In an action to recover damages for injury to property, the defendants Aprill and Wells Fargo Alarm Services separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Queens County (Joy, J.), dated August 15, 1988, as denied, in part, their respective motions for summary judgment dismissing the complaint insofar as it is asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, the appellants’ respective motions are granted in their entireties, and the complaint is dismissed insofar as it is asserted against the appellants.

The plaintiff, which is in the business of renting and selling theatrical costumes, alleged that it suffered property damage in excess of $1,000,000, when, as a result of a faulty sprinkler system, a large amount of water was released which destroyed numerous costumes which it had stored in a warehouse. An alarm system which was supposed to issue a warning when the sprinkler was activated proved defective and contributed to the extent of the loss. The defendants Aprill and Wells Fargo Alarm Services (hereinafter Wells Fargo) had entered into contracts with their codefendants, but not with the plaintiff, to inspect the sprinkler and alarm systems for defects.

The Supreme Court erred in denying the appellants’ respective motions for summary judgment dismissing the complaint insofar as it is asserted against them.

A review of the record indicates that Aprill’s actions consisted, at most, of a failure to properly inspect the sprinkler heads for age. It is also alleged that Wells Fargo similarly failed to inspect its alarm system on a timely basis and also improperly positioned a water paddle device which was to transmit a signal when leakage occurred.

The appellants’ alleged failure to properly and timely inspect the sprinkler and alarm systems were examples of nonfeasance, not of misfeasance. A plaintiff cannot recover in the absence of privity where an affirmative act of negligence has not been committed (see, Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57). Furthermore, the alleged improper placement of the water paddle by Wells Fargo was not a proximate cause of the failure of the alarm system. Mollen, P. J., Thompson, Lawrence and Kunzeman, JJ., concur.