                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521846
________________________________

PHILWOLD LLC et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
INERGY LP, Doing Business as
   BURNWELL GAS, et al.,
                    Respondents,
                    et al.,
                    Defendants.
________________________________

Calendar Date:   April 18, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                             __________


      Whiteman Osterman & Hanna LLP, Albany (Neil L. Levine of
counsel), for appellants.

      Drew, Davidoff & Edwards LLP, Monticello (Michael Davidoff
of counsel), for Inergy LP and others, respondents.

                             __________


McCarthy, J.

      Appeal from an order of the Supreme Court (McGuire, J.),
entered January 13, 2015 in Sullivan County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint.

      Plaintiff Philwold LLC is the owner of an insulated, heated
building (hereinafter referred to as the tortoise house) within
which its managing member, plaintiff Stuart Salenger, kept and
maintained a number of tortoises. The tortoise house served as a
winter residence for the tortoises. The gas fired, thermostat
controlled heating system used within the tortoise house was
manufactured by defendant Modine Manufacturing Company.
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Plaintiffs requested defendants Inergy LP, Inergy Holdings, LP,
Burnwell Gas Corporation and Inergy Propane LLC (hereinafter
collectively referred to as Inergy) to repair and service the
heaters, wiring and thermostats that it had previously installed.
Defendant Gary McBride, an employee of Inergy, serviced the
heating system at the tortoise house and, upon inspection,
determined that the old thermostats did not work due to a roach
infestation. When McBride could not resolve the issue with one
of the thermostats, he installed a new thermostat (hereinafter
the thermostat), which was manufactured by defendant Robertshaw
Controls Company. The next morning, an associate of plaintiffs
arrived at the tortoise house to find that the temperature in the
tortoise house had risen to approximately 110 degrees as a result
of the thermostat's malfunction and that, as a further result, 23
tortoises had died and others were injured.

      Thereafter, plaintiffs commenced this action alleging,
among other things, that Inergy "negligently repaired, and/or
furnished and installed heaters and thermostats" within the
tortoise house. Specifically, plaintiffs claimed that the
thermostat installed by McBride was "defective and failed in its
intended purpose[] to control the supply and degree of heat
furnished" to plaintiffs' tortoise house and that McBride
negligently installed the thermostat.

      Inergy and McBride, Robertshaw and Modine each moved for
summary judgment dismissing the complaint against them. Supreme
Court granted defendants' motions for summary judgment dismissing
the complaint in its entirety. In doing so, the court rejected
as "illogical" the theory put forth by an expert for plaintiffs –
a mechanical engineer with over 50 years of professional
experience and approximately 40 years of experience teaching on
that subject at the Massachusetts Institute of Technology – that
the improper installation of the thermostat caused its
malfunction. Plaintiffs appeal and argue that summary judgment
dismissing the complaint was improper as to Inergy and McBride
(hereinafter collectively referred to as defendants). We agree
with plaintiffs and modify to that extent.

      Defendants failed to put forth prima facie evidence
establishing that there were not material issues of fact as to
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whether their negligent installation of the thermostat caused its
malfunction. Although defendants put forth certain evidence,
including expert evidence, that supported a conclusion that the
malfunction occurred as the result of the thermostat becoming
infested with cockroaches, their remaining submissions raised
questions of fact as to whether negligent installation caused the
malfunction. Notably, defendants' submissions established that
the thermostat was designed to be mounted through the use of two
screws, but McBride testified that he had actually mounted the
thermostat through the use of three screws. Further evidence
tended to suggest that at least one of the screws used to install
the unit was of a different size than those supplied with the
thermostat and designed to be used for mounting it. Further, the
director of product risk engineering for the parent company of
Robertshaw explained that Robertshaw supplied installers with
particular screws in order to avoid impediments that could affect
the operation of the thermostat. Finally, in describing the type
of malfunction that would have had to occur to permit the
thermostat to continue to run the heater in the manner that it
did, a mechanical engineer opined that there was "some
possibility that somehow a current was allowed to flow through
the screws or something based on the way it was mounted."
Viewing this evidence in the light most favorable to plaintiffs,
defendants' submissions failed to eliminate all material issues
of fact regarding the theory that improper installation, based on
mounting the thermostat with a third unintended screw, caused the
thermostat's malfunction. Accordingly, summary judgment should
have been denied as to defendants regardless of plaintiffs'
opposition papers (see Markel Ins. Co. v Bottini Fuel, 116 AD3d
1143, 1148 [2014]; Cokeng v Ogden Cap Props., LLC, 104 AD3d 550,
550 [2013]).

      Even if it were not the case that defendants failed to meet
their prima facie burden, plaintiffs' submissions in opposition
to summary judgment raised material issues of fact requiring a
trial. Namely, plaintiffs provided the expert opinion of Igor
Paul, an experienced mechanical engineer and a longtime professor
on that topic. Paul opined, to a reasonable degree of scientific
certainty, that the improper use of a third, oversized mounting
screw – in contravention of the thermostat's intended design and
instructions for installation – broke the internal mechanisms of
                              -4-                521846

the thermostat in a manner that allowed it to continue to run the
heater despite over-temperature conditions. In reaching this
conclusion, Paul relied on, among other things, thermostat models
identical to the thermostat, examination of the installation
point on the tortoise house wall, installation instructions and
other technical materials related to the design of the
thermostat, and tests related to mounting exemplars of the
thermostat into the three holes present at the installation point
of the thermostat. Paul's affidavit provides a detailed
explanation of how he reached his conclusion regarding the cause
of the thermostat's malfunction based on facts, inferences and
reasoning. The affidavit provides a similarly detailed
explanation of why Paul found defendants' roach causation theory
of malfunction implausible and why his own conclusion was
consistent with McBride's failure to discover the damage that he
had caused during the installation based on the manner in which
he thereafter tested the thermostat. Considering this affidavit,
we find that Paul's expert opinion is admissible evidence that
raises material issues of fact as to whether defendants' improper
installation of the thermostat caused damages to plaintiffs (see
O'Brien v Couch, 124 AD3d 975, 977 [2015]; Sutherland v Thering
Sales & Serv., Inc., 38 AD3d 967, 968 [2007]). Accordingly,
summary judgment should have been denied as to defendants. The
remaining issues are either academic or without merit.

     Lahtinen, J.P., Garry, Rose and Aarons, JJ., concur.
                              -5-                  521846

      ORDERED that the order is modified, on the law, with costs
to plaintiffs, by reversing so much thereof as granted motions by
defendants Inergy LP, Inergy Holdings, LP, Burnwell Gas
Corporation, Inergy Propane LLC and Gary McBride for summary
judgment dismissing the complaint against them; said motions
denied; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
