Pasternak v. Arrow Exterminating Co. Inc.

               2039/06

  SUPREME COURT OF NEW YORK, NASSAU COUNTY

  2008 N.Y. Misc. LEXIS 709; 239 N.Y.L.J. 27


  January 28, 2008, Decided

NOTICE:

   THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE
RELEASE OF THE FINAL PUBLISHED VERSION.

COUNSEL: Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, Attorneys for
Plaintiffs.

Catalano Gallardo & Petrepoulos, LLP, Attorneys for Defendant Arrow
Exterminating Co., Inc.

JUDGES: Justice LaMarca

OPINION BY: LaMarca

OPINION

   Requested Relief

   Defendant, ARROW EXTERMINATING CO., INC. (hereinafter referred to as
"ARROW"), moves for an order, pursuant to CPLR §3212, granting it summary
judgment dismissing plaintiffs' complaint. Plaintiffs, HERBERT PASTERNAK and
ANNE PASTERNAK, oppose the motion and cross-move for an order, pursuant to CPLR
§3025(b), granting plaintiffs leave to serve an amended complaint to assert a
cause of action for gross negligence. The motion and cross-motion are determined
as follows:

   Background

   Plaintiffs commenced this action for property damages sustained in their
residence located at 854 Briar Place, Wood-mere, N.Y. (hereinafter referred to
as the "premises"), due to termite infestation. Plaintiffs allege that, from
December 1989 until January 1, 2005, ARROW had been contracted to control/stop
any termite infestation at the premises. Plaintiffs allege that, if ARROW had
conducted the careful and thorough inspections it claims to have performed, the
plaintiffs' premises would not have sustained the extensive damages that
occurred therein, culminating in plaintiff ANNE PASTERNAK'S foot going through
the dining room floor at the premises, allegedly due to termite infestation.
Plaintiffs allege that the termite damage is so extensive that the plaintiffs
can no longer safely reside in the premises, and that the cost to repair the
termite damage is approximately $ 900,000.00.

   In support of the motion to dismiss the complaint, ARROW contends that the
operative agreement between ARROW and the plaintiffs, over the seventeen (17)
year span, only requires ARROW to supply additional treatment if termite damage
is found. (Exhibit "G" to the moving papers). ARROW contends that any negligence
on its part does not make it responsible for structural damages to plaintiffs'
premises. ARROW alleges the plaintiffs' claim for negligence on the part of
ARROW is barred by the terms of the parties agreement.

   A review of the one (1) page contract of the parties, executed on December
12, 1989, reflects that in PC, it was agreed that "[f]or each succeeding year,
upon payment of the fee as outlined hereafter on or before the anniversary date,
Arrow will inspect the building to check for the presence of termites, and
supply labor and materials to treat any area where any new termite infestation
has been detected. If such inspection reveals termite reinfestation in an area
previously treated by Arrow, additional treatment will be made by Arrow during
the year covered by such fee at no additional charge to the Customer". In "PH,
the agreement provides that "[n]o representation is made at any time as to the
structural soundness of the building, and the services of Arrow are only for
treatment or additional treatment as called for by the terms herein. Other than
as provided herein, this agreement does not cover and Arrow is not responsible
for any termite damage to the premises which occurred before or after Arrow's
treatment". Additionally, in PG, the agreement states that "[w]aterleakage in
treated areas, and leakage in interior areas or through the roof or exterior
walls of the identified property, may destroy the effectiveness of Arrow"s
treatment and is conducive to new infestation. It is ARROW's position that it
made no warranty of merchantability or fitness with respect to goods sold or
used per the agreement, that the PASTERNAKS had a flood in their basement
sometime between 1991 and 1995, and that the agreement exempts them from
liability for any termite damage to the premises. Counsel cites Anunziatta v.
Orkin Extermination Co., Inc., 180 F. Supp.2d 353 (NDNY 2001), for the
proposition that exculpatory clauses in contracts are enforceable, provided such
clauses are clear, unambiguous and understandable. Moreover, counsel for ARROW
argues that plaintiffs' cause of action for negligence must fail because the
agreement exculpates ARROW from damages caused by termites and to recover,
notwithstanding said exclusion, plaintiffs must show that ARROW was grossly
negligent, a claim that has not been asserted in the complaint.

   In opposition to the motion to dismiss and in support of the cross-motion,
plaintiffs submit the affidavit of Thomas A. Parker, PhD. an entomologist who
claims to be an expert in the areas of wood destroying organism identification,
damage recognition, inspections, treatment control and prevention. Mr. Parker
relates that the premises was initially treated for subterranean termites by
ARROW in 1988 and was purchased by the PASTERNAKS in 1989. He states that
plaintiffs later discovered extensive damage and termite activity at the
premises which had taken place over many years. Mr. Parker inspected the
premises on February 1, 2007, and found that ARROW had ample opportunities to
find active termites over the years if ARROW had performed proper inspections.
Mr. Parker claims that some of the baiting system used by ARROW was useless in
eliminating the termite presence. It is plaintiffs' position that ARROW is
guilty of gross negligence in performing its termite treatment over the years
and argue that they should be permitted to amend their compliant to reflect the
alleged gross negligence of ARROW.

   The Law

   Contracts may not be construed to exempt parties from the consequences of
their own negligence in the absence of express language to that effect (Lago v.
Krollage, 78 NY2d 95, 571 NYS2d 689, 575 NE2d 107 [C.A. 1991]). New York law
frowns upon contracts intended to exculpate a party from the consequences of his
own negligence and the provisions of the contract will be strictly construed
against the drafter. However, absent a statute or public policy to the contrary,
a contractual provision absolving a party from its own ordinary negligence will
be enforced (Anunziatta v. Orkin Exterminating Co., Inc., supra; (Lago v.
Krollage, supra). However, a party may not insulate itself from damages caused
by grossly negligent conduct (Sommers v. Federal Signal Corp., 79 NY2d 540, 583
NYS2d 957, 593 NE2d 365 [CA 1992]; Amica Mutual Insurance Co. v. Hart Alarm
Systems, Inc., 218 AD2d 835, 629 NYS2d 874 [3rd Dept. 1995]; Anunziatta v. Orkin
Exterminating Co., Inc., supra; Lago v. Krollage, supra).

   In Somers, the Court found that a burglar alarm agreement which contained an
exculpatory clause shielded the burglar alarm company from liability only for
ordinary negligence, but not for gross negligence. Gross negligence is conduct
which smacks of intentional wrongdoing or evinces a reckless indifference to the
rights of others (Sommers v. Federal Signal Corp., supra; Adler v. Columbia
Savings and Loan Association, 26 AD3d 349, 811 NYS2d 737 [2nd Dept. 2006]).

   Thus, gross negligence when invoked to pierce an agreed-upon limitation of
liability in a commercial contract must smack of intentional wrongdoing (
Kalish-Jarcho, Inc. v. City of New York, 58 NY2d 377,461 NYS2d 746, 448 NE2d 413
[CA. 1983]). An exculpatory agreement, no matter how flat and unqualified its
terms, will not exonerate a party from liability under all circumstances. Under
announced public policy, it will not apply to the exemption of wilful or grossly
negligent acts (Kalish-Jarcho, Inc. v. City of New York, supra). Thus, although
New York law generally enforces contractual provisions in contracts absolving a
party from its own negligence, public policy prohibits a party's attempt to
escape liability, through a contractual clause, for damages occasioned by
grossly negligent conduct (Colnaghi, U.S.A., Ltd. v. Jewelers Protection
Services Ltd., 81 NY2d 821,595 NYS2d 381, 611 NE2d 282 [CA. 1993]; Federal
Insurance Co. v. Honeywell, Inc., 243 AD2d 605, 663 NYS2d 247 [2nd Dept. 1997]).

   It is well settled on a motion for summary judgment that, after movant has
made a prima facie showing that they are entitled to judgment as a matter of
law, the other party must establish the existence of material Facts of
sufficient import to create a triable issue of fact. See, Hellinger v. Law
Capital, Inc., 124 AD2d 182, 509 NYS2d 50 (2nd Dept. 1986); Shaw v. Time-Life
Records, 38 NY2d 201, 379 NYS2d 390, 341 NE2d 817 (CA. 1975).

   Discussion

   After a careful reading of the submission herein, it is the judgment of the
Court that plaintiffs have raised a triable issues of fact exist as to whether
ARROW was grossly negligent in treating plaintiffs' residence for termites which
precludes granting ARROWs motion for summary judgment. Based on the record
before the Court, a dispute as to the appropriate level of negligence to be
imputed to ARROW precludes the granting of summary judgment (see, United B
International Corp. v. UTI United States, Inc., 798 NYS2d 714, 2004 NY Misc.
LEXIS 2136 (Supreme Kings Co. 2004]): Whether or not ARROW'S conduct amounted to
gross negligence is a question for the trier of fact to determine.

   As to the Cross-Motion

   Authority to grant leave to amend pleadings is committed to the discretion of
the court (Edenwald Contr. Co., Inc. v. City of New York, 60 NY2d 957, 471 NYS2d
55, 459 NE2d 164 [C.A. 1983]; Selective Insurance Co. v. Northeast Fire
Protection Systems, Inc., 300 AD2d 883, 752 NYS2d 145 [3rd Dept. 2002]). Leave
to amend pleadings shall be freely granted unless the amendment sought is
palpably improper or insufficient as to a matter of law, or unless prejudice or
surprise directly results from delay in seeking such amendment (Amica Mutual
Ins. Co. v. Hart Alarm Systems, Inc., supra). Mere lateness in seeking to amend
pleadings is not a bar to amend; it must be lateness coupled with significant
prejudice to the adversary (Harding v. Filancia, 144 AD2d 538, 534 NYS2d 219
[2nd Dept. 1988]).

   Plaintiffs note that the note of issue herein has been vacated and, thus, the
case is not now certified ready for trial. The Court finds that ARROWs
"lateness" argument is unavailing. Nor has ARROW articulated any viable
"prejudice" that would befall it if plaintiffs are allowed to amend their
complaint. Prejudice and surprise mean the loss of some special right, some
change of position or some significant trouble or expense that could have been
avoided had the original pleading contained what the amended pleading seeks to
add (Smith v. Industrial Leasing Corp., 124 AD2d 413, 507 NYS2d 511 [3rd Dept.
1986]; Barstow v. Hospital for Special Surgery, 169 AD2d 385, 563 NYS2d 418 [1st
Dept. 1991]). Prejudice is not found in the mere exposure of the defendant to a
greater liability. For prejudice to be present, there must be some indication
that the defendant has been hampered in the preparation of his case or has been
prevented from taking some measure in support of his position (Loomis v. Civetta
Corinno Construction Corp. 54 NY2d 18, 444 NYS2d 571, 429 NE2d 90 [C.A. 1981]).
Based on the foregoing, it is hereby

   ORDERED, that ARROW'S motion for summary judgment dismissing the complaint is
denied; and it is further

   ORDERED, that plaintiffs' cross-motion for permission to amend the complaint
to assert a claim for gross negligence is granted. The proposed amended
complaint, (Exhibit "A" annexed to the cross motion) shall be deemed served upon
service of a copy of this order upon ARROW, with notice of entry.

   All further requested relief not specifically granted is denied.

   This constitutes the decision and order of the Court.