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Rosecrans v Dunn 2006 NY Slip Op 30140(U) March 31, 2006 Supreme Court, Cayuga County Docket Number: 0093571/9971 Judge: Mark H. Fandrich Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT STATE OF NEW YORK

COUNTY OF CAYUGA

BEATRICE ROSECRANS, CYNTHIA ROSECRANS, and LAWRENCE ROSECRANS, Individually and as Parents and Natural Guardians of DANIEL ROSECRANS,

DECISION Iodex No. 97-9357
Assigned Justice:

Plaintiffs,
VS.

MARK DUNN, DANIEL SOULES, SOULES & DUNN ASSOCIATES, and HARRY COOPER, Defendants.

Hon. Mark H. Fandrich

ANTHONY F. ENDIEVERl, ESQ. Attorney for Plaintiffs
5016 West Genesee Street

Camillus, New York 13031

ANTHONY J. VILLANI, P.C.
Attorney for Defendants

Mary Katherine Villani, Esq., of Counsel
66 William Street

Lyons, New York 14489

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Fandrich, Mark H., Acting Justice This action was commenced by plaintiffs for personal injuries allegedly suffered from carbon monoxide poisoning by reason of a defective furnace on premises at 309 South Seward Avenue in the City of Auburn, New York. Plaintiffs, Lawrence Rosecrans and Cynthia Rosecrans, purchased the premises from defendants, Mark Dunn and Daniel Soules, on December 14, 1994. According to the deposition of defendant Dunn, although the premises were titled to defendant Dunn, it was an asset of defendant, Soules & Dunn, a general partnership.
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Plaintiffs took pre-closing possession of the premises on September 23,

1994, at an agreed monthly rental, and continued to reside in the premises through the date of the closing of the transaction. Plaintiffs allege that the defendants made negligent repairs to the furnace, thereby causing plaintiffs' damages. Plaintiffs also maintain that defendants made misrepresentations concerning the safety of the furnace, via defendants' agent: defendant, Harry Cooper. Plaintiffs allege that defendant Cooper told plaintiffs that the furnace was "safe.,,2 Plaintiffs state that they turned on the furnace in September 1994 when they moved into the premises, and then again in November, 1994. Plaintiffs had an energy audit completed by NYSEG on December 23, 1994, which showed excess carbon monoxide levels of 50 ppm in the basement of the dwelling. Plaintiffs contacted Cayuga County Homesite, who replaced the furnace with a new one and disposed of the old furnace.

1 See Deposition of defendant, Mark Dunn, pp. 154, 155. 2 Plaintiffs submitted a paper dated Aug 26, on which there appears the following: "3) furnace - Radon, C.M. fine." According to plaintiffs, defendant Harry Cooper made this representation and initialed the paper, thereby representing to plaintiffs that the furnace was safe. (See, also, Deposition of plaintiff, Cynthia Rosecrans, pp. 5355). Defendant Cooper acknowledges initialing the paper. (See Deposition of defendant, Harry Cooper, pp. 202, 203.).

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Defendants make this motion for summary judgment, alleging, inter alia, that plaintiffs had a sufficient time to inspect the premises and took the premises in "as is" condition as recited in the purchase contract between the parties.] Defendants maintain that even if defendant Cooper made representations as to the condition of the furnace, there was no confidential or trust relationship between the defendants and the plaintiffs. Defendants also allege that the furnace in question is not available for inspection by defendants, and therefore, there is an issue of spoliation of evidence. In response to plaintiffs' allegations of negligent repair of the furnace, defendants state that plaintiffs have offered no evidence of negligent repair, and further that spoliation of the furnace has usurped defendants' ability to defend against such an allegation. Finally, defendants question plaintiffs' experts with respect to carbon monoxide poisoning and request Frve and Daubert hearings. The court finds that defendants' motion for summary judgment should be denied since there are "questions of fact to be detennined by the trier of fact." (Chilberz v. Chi/berz, 13 A.D.3d 1089,4'" Dept., 2004). A. Nefllizent Revair and Misrepresentation Plaintiffs have alleged that the defendants made negligent repairs to the furnace on the premises and that such repairs caused plaintiffs' damages. Defendant, Harry Cooper, admitted replacing several heating runs in the area ofthe furnace.4 The area of the house where carbon monoxide was found was in the basement after the repairs were made. Although there is no evidence in the record of carbon monoxide levels in other parts of the dwelling, a question of fact exists as to whether the repairs made by defendant Cooper contributed to the recorded

3 Under the heading of "INSPECTION", the Purchase and Sale Contract states the following: "I have inspected the premises and I understand that they are purchased 'as is' except as otherwise provided therein. I shan have the right to inspect the premises prior to closing with the reasonab1e notice to the seller." 4 See Deposition of defendant, Harry Cooper, pp. 212 - 215.

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carbon monoxide levels in the basement, which, in turn, caused plaintiffs' injuries. (Doster v. Binzhamton Gas Works, 197 Misc.2d 810, County Court, Broome County, 1950; Korcz v. Worthinzton Corv., 34 A.D.2d 721, 3rd Dept., 1970). The record indicates that plaintiffs did suffer from symptoms which could be attributed to carbon monoxide exposure and that there were substantial levels of carbon monoxide in the basement of the dwelling. (Doster v. Bin

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