Upon the following papers read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by defendant Corcoran Electrical, Inc., dated September 21, 2018; Answering Affidavits and supporting papers by plaintiffs, dated December 7, 2018; and Replying Affidavits and supporting papers by defendant Corcoran Electric, dated January 9, 2019, it is ORDERED that the motion of Corcoran Electrical, Inc. for summary judgment dismissing the complaint against it is denied. The plaintiffs commenced this action seeking recovery for damage to their residence from a house fire that occurred on June 15, 2012. In their verified pleadings, the plaintiffs allege that the negligence of the defendants caused the fire and that defendants Corcoran Electric, Inc. (Corcoran), Boesch Electric, Inc. (Boesch Electric) and Michael Boesch also breached their contract with the plaintiffs. They further allege that the defendants were negligent in failing to maintain and properly inspect the electrical wiring that Boesch Electric and Corcoran installed in the plaintiffs’ home located at 499 Grove Avenue in Patchogue, New York, and that the doctrine of res ipsa loquitur applies to the case. The record shows that in December 2010, the plaintiffs hired Boesch Electric, which was owned by Michael Boesch, to complete electrical work at their Grove Avenue residence. Boesch Electric assigned the project to Corcoran. Approximately one year after the job was completed and the required electrical inspections conducted, there was a fire at the residence. The plaintiffs claim that Boesch Electrical and Corcoran negligently wired the residence and that the Town of Brookhaven and Electrical Inspectors, Inc. negligently inspected the wiring. The court notes that the Town and Electric Inspectors, Inc. are no longer a part of this litigation and that Boesch Electric and Boesch are not represented by counsel. Corcoran now moves for summary judgment dismissing the complaint on the ground that the cause of the fire could not be identified and that neither it nor Boesch Electric were negligent in wiring the house. The deposition testimony of plaintiff Joan Franzone (Joan) reveals that there was a fire at the Grove Avenue premises in 2005, which required the complete demolition of the residence. In 2009, Joan started the rebuilding process, hiring contractors to complete the various components of the project. Michael Boesch and Joan had served in the military together, and in 2010, she hired him to complete the electrical work. Joan testified that she did not know the owner of Corcoran, but when she hired Boesch, he was employed by Corcoran. After the electrical work was completed, two electrical inspections were conducted. Drywall, flooring, and kitchen cabinets were installed after that, and the construction was completed by August 2011. That month, according to Ms. Franzone, Hurricane Irene caused approximately two feet of flooding in the garage and lower level of the house, which contained the laundry room and the family room. The kitchen was located on the level of the home above the level where the flooding occurred. Richard Franzone gave deposition testimony paralleling that of his wife concerning the damage to the house caused by Hurricane Irene, estimating the height of the flooding in the lower level at about three feet. He testified that drywall only up to approximately that height from the floor was replaced. He recalled that there was a loss of electricity because of the hurricane; however, electrical service was restored within a week, and there was no need for any electrical work to be performed prior to having the electricity restored. He testified that approximately two weeks before the fire, he had experienced issues with one switch in the kitchen area. He recalled that he had had to turn on the circuit breaker for that switch — circuit breaker number 9 — on more than one occasion. He had attempted to contact Boesch about the issue but had not received a response. Philip Goehring, the owner of Electrical Inspectors, Inc., testified that his employee conducted a rough visual inspection of the completed electrical work at the premises. The inspection involved “looking at wire sizes,…breaker sizes,…grounding,…[and] neutrals,” and no testing was conducted. A final inspection was conducted after the light fixtures and electrical devices were in place. According to Goehring, the electrical work at the property passed inspection. The inspector, Edward Scavelli, testified that he would not have approved the electrical work if there were code violations; however, he would have approved the work even if it was “sloppy.” Robert Berretta testified that he was employed by the Suffolk County Police Department as an arson investigator and that he investigated the fire. Based upon his investigation, Berretta concluded that the fire originated in the wall behind the kitchen cabinets and traveled up to the second floor of the residence. The wall extended from the lower level up to the second floor. Berretta observed that there was “beading and arcing” in the electrical line in the wall, which indicated that there was electricity in the line when the line failed. He testified that he did not observe any staples that were “too tight” in the electrical wiring, and there was nothing to indicate that the manner of wiring had caused the fire. He ultimately found that the cause of the fire was “undetermined,” and that it was accidental, that is, not intentionally set. In an affidavit, James Corcoran states that he supervised all the electrical work at the plaintiffs’ residence and that the wiring had been installed in accordance with applicable codes. There was no “over-tensioning” or improper “kinks or bends in the wiring.” According to Corcoran, the wiring was properly grounded, and even if there was some deficiency in the connection to the ground rod, it would have been immaterial “since the [circuit breaker] panel, and consequently the building’s electrical system, was also grounded.” In addition, prior to providing electricity to the residence, the electric company inspected the electrical system, and it would not have turned on the electricity if the system was not properly grounded with “two means of grounding.” Corcoran completed the electrical work approximately a year before the fire occurred, and there was no agreement among the parties calling for Corcoran to maintain or inspect the electrical system at the residence continually after completion of the project. Corcoran further states that the flooding of the lower level of the plaintiffs’ home because of Hurricane Irene occurred after the electrical work had been completed and that the plaintiffs had never contacted Corcoran to re-inspect or replace any wiring in the home. Salvatore Salvato avers in his affidavit that he is a professional fire investigator and that he inspected the fire at the plaintiffs’ home. He determined that the fire originated in a wall cavity located in the center wall of the house, between the floor level and the ceiling of the kitchen; although he could determine the origination site for the fire, he could not determine the cause of the fire, and because the wall cavity contained electrical wiring, Larry Wharton, a licensed professional engineer, was retained. Wharton avers in his affidavit that he investigated the fire on October 12 and December 18, 2012, and again on May 5, 2015. In accord with Salvato, Wharton states in his affidavit that the fire started inside a cavity in the central wall of the house. Wharton identified three electrical cables inside that cavity and opines that for two of those cables, there was no evidence of any adverse electrical activity that could have caused the fire and that the damage to those wires was caused by the fire. However, he concedes that the third cable had “possibly” been damaged as a result of adverse electrical activity. Wharton states that he found no evidence of kinking or over-tensioning of the wiring when it was installed. He further opines that even though the cables in the bay where the fire started may not have been directly exposed to salt water as a result of the flooding that was caused by Hurricane Irene, the corrosive effect of the salt water and ensuing moisture in the wall below the wiring cannot be eliminated as a cause of deterioration of the wires. He ultimately opines, among other things, that there is no evidence that the wiring was improperly installed. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). If the proponent succeeds in doing so, the burden then shifts to the party opposing the motion, which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v. Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v. Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v. Town of Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). However, the moving party must demonstrate its entitlement to summary judgment affirmatively in order to shift the burden to the opposing party; thus, “[a] movant fails to satisfy its prima facie burden by merely pointing out gaps in the plaintiff’s case” (Blackwell v. Mikevin Mgt. III, LLC, supra, 88 AD3d at 837 [2d Dept 2011], citing Englington Med., P.C. v. Motor Veh. Acc. Indem. Corp., 81 AD3d 223 [2d 2011]; Shafi v. Motta, 73 AD3d 729, 730 [2d 2010]; Doe v. Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388 [2004]). The failure of the moving party to make a prima facie showing requires the denial of the motion without regard to the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Further, as the court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto, supra; O’Neill v. Town of Fishkill, supra). Corcoran has made the necessary prima facie showing of entitlement to judgment as a matter of law: Scavelli testified that he inspected the electrical work before the project was completed, found that the wiring was installed in accordance with the electrical code and issued the approval certificate for the electrical work. James Corcoran testified that he inspected the electrical wiring installed on the premises and, like Scavelli, determined that it was up to code. Corcoran’s expert fire investigators have opined in their affidavits that there is no evidence of that there had been improper wiring where the fire originated. Further, one of those experts, Wharton, has averred that there was no indication that the electrical work, which was completed by Corcoran almost one year prior to the fire, was improperly performed. Furthermore, Detective Berretta stated that he did not observe any wires that were “too tight,” and both James Corcoran and Wharton have averred that even if the wiring in the area where the fire occurred was not grounded, the lack of grounding was immaterial to the cause of the fire. Nonetheless, and notwithstanding the arguments pressed by counsel for Corcoran in his reply affirmation, none of the defendants’ witnesses seriously dispute Detective Berretta’s conclusion that the fire was the result of an “electrical event,” nor do any of them credibly point to any other plausible, non-speculative cause. The burden now shifts to the plaintiffs to raise a triable issue of fact. Plaintiffs have demonstrated through their submissions the existence of triable material issues of fact bearing on the cause of the fire and on whether allegedly careless installation of the electrical wiring and completion of that wiring in violation of electrical and fire codes proximately caused the fire to occur. First, although Wharton opines that the “corrosive effect” of moisture from salt water in the wall below the implicated wiring, resulting from the flooding that Hurricane Irene had caused nearly a year earlier, cannot be eliminated as a cause of the deterioration of the wiring in the wall cavity in the second level of the residence, plaintiffs aver that the flooding was confined to the lower level of the house and rose no higher than three feet; that the water did not directly “touch[] the circuit/panel box” in their home; that they promptly pumped the water out and used fans and dehumidifies to “remove all the water, moisture, and humidity” in the affected area; and that they had a contractor remove all of the wet sheet rock and replace it with Wonderboard. Second, plaintiffs’ experts implicate improper installation of both the home’s wiring and the grounding cable as causes of the fire. John Tinghitella, a fire investigator retained by plaintiffs, conducted, among other things, site examinations at the plaintiffs’ Grove Avenue residence on October 12, November 16 and December 18, 2012; an evidence identification, collection and retention examination on March 8, 2013; and a series of witness interviews. In his October 11, 2013 report, Tinghitella concluded, inter alia, that the fire originated in the framing bay between the kitchen and living room of the residence; that it was caused by heat from electrical wiring; that it was slow burning and smoldering; and that it “originated with the burning of the electrical wire insulation and extending to the wood studs of the framing bay.” Among his factual findings was that a Romex electrical supply cable located in the framing bay in which the fire originated and situated two-feet, four inches above the floor level of a bedroom, located a half-story above the level of the kitchen, “exhibited evidence of electrical activity” and that one of its conductors “was severed and exhibited arcing, severed conductors and re-solidified metal”; that a section of the cable had been “pulled tight between two framing studs” rather than being properly routed through holes drilled in the studs1; and that the cable was connected to circuit breaker number 9, the same circuit breaker that defendants’ expert Wharton reported was found in the “tripped” position after the fire and that, according to Tinghitella, Richard Franzone had found tripped on two occasions prior to the fire. Tinghitella also found that the grounding wire running from the residence’s electrical service panel to the home’s grounding rod was not sufficiently clamped to the latter. Les Winter, the electrical engineering expert retained by the plaintiffs, also conducted a site examination on November 16, 2012, as well as an evidence examination on July 2, 2013. Based upon both Tinghitella’s findings and his own, Winter, in his report dated October 13, 2013, concluded, among other things, that the fire originated in the residence’s wiring; that it was caused by a so-called “high resistance ground fault,” a type of short circuit that produces “very high temperatures while drawing low currents”; that “[t]he combination of wiring damaged during installation and an improperly installed ground connection caused the fire”; that had the wiring been installed “as required by code and standard accepted practices, the arcing event and fire would not have occurred”; and “[h]ad the ground connection been properly made, the circuit breaker would have reliably acted and stopped the arcing before the fire began.” (Copies of the Tinghitella and Winter reports are attached both to the defendant’s moving papers and to the plaintiffs’ opposing papers, and the affidavits of both experts have been tendered by plaintiffs in opposition to the defendant’s current motion.) Thus, it is evident that there are triable issues of material fact that preclude the granting of Corcoran’s motion. The court has considered the other arguments and contentions of the parties and has determined that they do not support a different result. Accordingly, the motion is denied. This constitutes the decision and order of the court. Dated: 7/30/2019 Riverhead, New York ___FINAL DISPOSITION X NON-FINAL DISPOSITION
