The following e-filed documents, listed by NYSCEF document number (Motion 004) 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER. DECISION + ORDER ON MOTION Upon the foregoing documents, plaintiffs motion for partial summary judgment on the issue of liability and directing an inquest on damages, motion sequence 004, is denied. In this action, plaintiff P.J.’s of Little Italy, Inc., d/b/a Pellegrino’s Restaurant (“plaintiff and/or PJ’s”), alleges claims of negligence and breach of contract against defendant Mulberry Condominium Associates, LLC. (“defendant and/or Mulberry”). The claims relate to an incident that occurred on January 11, 2017, when water drained from a tank located on the roof of the building leaked into the restaurant located on the ground floor and allegedly damaged PJ’s restaurant causing it to cease operations. It is alleged that PJs operated its restaurant pursuant to a lease with discontinued defendant Mulberry Street Commercial Properties LLC and that the building was owned by defendant Mulberry. (NYSCEF Doc. Nos. 91, 89). On November 21, 2019, this court consolidated for joint discovery and trial, a subrogation action commenced by Everest National Insurance Company, under Index No. 653851/2019, directing that each action shall maintain its own index number. (NYSCEF Doc. No. 57). Plaintiff discontinued its claims against defendant Everest National Insurance Company on January 9, 2019 (NYSCEF Doc. No. 41); plaintiff discontinued its claims against defendant Mulberry Street Commercial Properties LLC on October 14, 2020 (NYSCEF Doc. No. 66). On April 26, 2021, Everest discontinued its claims against defendant Rosenwach Tank Co., in the subrogation action. (NYSCEF Doc. No. 8). Both actions remain pending against defendant Mulberry Condominium Associates LLC. Plaintiff argues that it is entitled to summary judgment on liability, invoking the doctrine of res ipsa loquitor. It claims that the undisputed evidence shows that Mulberry negligently drained the water tank located on the roof of the building and then failed to monitor the process which led to ice falling off the tank. Plaintiff contends that it has satisfied the elements of res ipsa and that defendant’s negligence caused a “massive flood” in its restaurant which was located on the ground floor and basement. Mulberry opposes the motion claiming that issues of fact exist that must be decided by a jury. Mulberry argues that plaintiff has not met its burden to prove a res ipsa case and there are issues as to whether Mulberry breached a duty. Mulberry denies plaintiff’s claim that a chunk of ice fell off the water tank and ruptured a hole in the roof and maintains that there is no evidence that the procedure used to drain the tank was flawed. (NSYCEF Doc. No. 104,
