By Jeffrey D. Schulman and Thomas M. Bona.
Court: Supreme Court of the State of New York, County of Westchester
Judge: Hon. William J. Giacomo
Case Type: Construction, General Liability
Caption: Philadelphia Indemnity Insurance Company as subrogee of Bet Am Shalom Synagogue v. Caldwell & Walsh Building Construction, Inc., SRI Fire Sprinkler, LLC, Albany Fire Protection, Inc. ABC Contractors 1-10 and John Does 1-10
Index No.: 5202912019
Decision Date: November 5, 2020
Decision: Early Dismissal of Complaint for Defendant
Clients often feel a case should not involve them, or it takes too long and can cost too much money. At PMT, we address our client’s concerns, and we scrutinize for alternatives in which an aggressive strategy can deliver an early dismissal. Recently, we obtained a dismissal that illustrates this perfectly.
In Philadelphia Indemnity Insurance Company as Subrogee of Bet Am Shalom Synagogue, Philadelphia Indemnity Insurance Company (PIIC) filed a subrogation claim for damages in the amount of $173,390.86, paid to Bet Am Shalom Synagogue (Synagogue), following two frozen pipes that burst. PIIC alleged negligence against all Defendants in the maintenance, installation and/or service of the subject piping within the Synagogue. On January 1, 2018, and January 8, 2018, two separate sprinkler system pipes froze and burst, releasing seemingly endless amounts of gushing water and causing significant property damage to a new addition to the original Mansion that was home to the Synagogue. The new addition was constructed and completed by Co-Defendant Caldwell & Walsh in or about 2006. Co-Defendant SRI Fire Sprinkler (SRI) performed sprinkler work in the new addition. Our client, Albany Fire Protection (Albany), performed sprinkler work in the existing Mansion, which underwent a total renovation, in or about 2005, during the construction of the new addition.
PIIC claimed that its Complaint was timely, relying upon the three-year statute of limitations for property damage, which PIIC asserted began to toll in May 2018, when PIIC reimbursed the Synagogue for its damages, and the lawsuit proceeded as against Caldwell & Walsh. Subsequently, SRI, and an employee of our client, were named additional Defendants in PIIC’s Amended Complaint. Service of PIIC’s Second Amended Complaint properly named our client, Albany, rather than our employee, as the correct Defendant. Despite the later discovery that established our client, Albany did not perform work in the new addition where the pipes burst, as well as our position that the statute of limitations had expired on PIIC’s negligence claim, PIIC declined to discontinue against our client. In lieu of answering the Second Amended Complaint, we immediately moved to dismiss PIIC’s Second Amended Complaint as untimely, based upon, inter alia, the three-year statute of limitations for negligence against contractors and architects, which begins to toll upon completion of the project. Both Caldwell & Walsh and SRI followed suit shortly after that and filed their motions to dismiss based upon the statute of limitations.
The Court found the Defendants established the cause of action accrued in 2006, when the addition to, and the renovation of, the Synagogue were completed. In turn, the Plaintiff failed to raise an issue of triable fact. The Court ultimately granted each Defendant’s motion to dismiss based upon the statute of limitations, setting forth that because subrogation claims are derivative of the underlying tort action, the cause of action accrues from the date of the accident, not the date of payment.
Once again, an aggressive defense delivers results and value with swift, cost-effective resolution of this matter for our client. Let us show you how PMT delivers results and value to you.
Should you have any questions, please call our office at (914) 703-6300 or contact:
Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com
Thomas M. Bona, Partner
tbona@pmtlawfirm.com