                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   518158
________________________________

TAMMY MILLER, as Administrator
   of the Estate of CLIFFORD J.
   MILLER, Deceased, et al.,
                    Respondents,
      v

GENOA AG CENTER, INC.,                      MEMORANDUM AND ORDER
                    Defendant
                    and Third-
                    Party
                    Plaintiff-
                    Appellant;

S&V REFINISHING, LLC,
                    Third-Party
                    Defendant-
                    Appellant.
________________________________


Calendar Date:   November 12, 2014

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Brady J.
O'Malley of counsel), for defendant and third-party plaintiff-
appellant.

      Michael Miliano, State Insurance Fund, New York City (Fred
J. Hutchinson of Donohue, Sabo, Varley & Huttner, LLP, Albany, of
counsel), for third-party defendant-appellant.

      Greene & Reid, PLLC, Syracuse (Eugene W. Lane of counsel),
for respondents.

                             __________
                               -2-                518158

Devine, J.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered July 11, 2013 in Tompkins County, which denied
defendant's and third-party defendant's motions for, among other
things, summary judgment dismissing the complaint.

      Clifford J. Miller (hereinafter decedent) was an employee
of third-party defendant, which operated its propane tank
refinishing business in a building owned by defendant. On the
date of the accident at issue in this action, third-party
defendant's owner, Douglas VanBenshoten, informed the employees,
among other things, that they were not to allow a new employee to
work with the propane tanks until VanBenshoten could provide that
employee with the necessary training. Despite such directive,
after VanBenshoten left the premises, the new employee attempted
to remove a supply valve from one of the tanks while inside the
building. The employee was unable to remove the valve and asked
decedent to assist him. As the valve was loosened, a cloud of
propane gas emanated from the tank and met with an ignition
source inside the building, causing an explosion that severely
burned decedent and ultimately caused his death.

      Plaintiffs commenced this wrongful death action against
defendant in November 2010. Thereafter, defendant commenced a
third-party action seeking, among other things, common-law and
contractual indemnification. Following joinder of issue,
defendant and third-party defendant each filed separate motions
for, among other things, summary judgment dismissing plaintiffs'
complaint against defendant. Supreme Court, among other things,
denied the motions to the extent that they demanded the dismissal
of plaintiffs' complaint. Defendant and third-party defendant
now appeal.1


     1
        Although Supreme Court also denied defendant's motion for
summary judgment as to its contractual indemnification claim
against third-party defendant, any issues with respect thereto
are deemed abandoned by defendant's failure to raise said issues
in its brief (see Mills v Chauvin, 103 AD3d 1041, 1044 n 2
[2013]).
                              -3-                518158

      In regard to defendant's and third-party defendant's
argument that, as an out-of-possession landlord, defendant owed
no legal duty of care to decedent, it is well established that,
generally, "once possession has been transferred to a tenant, an
out-of-possession landlord will not be held responsible for
dangerous conditions existing upon leased premises" (Stickles v
Fuller, 9 AD3d 599, 600 [2004] [internal quotation marks and
citation omitted]; see Inger v PCK Dev. Co., LLC, 97 AD3d 895,
896 [2012], lv denied 19 NY3d 816 [2012]; Davison v Wiggand, 247
AD2d 700, 701 [1998]). Exceptions to the general rule do exist,
including situations where the landlord retains control over the
leased premises, has agreed to repair or maintain the premises or
"has affirmatively created the dangerous condition" (Boice v PCK
Dev. Co., LLC, 121 AD3d 1246, 1247 [2014]; see Vanderlyn v Daly,
97 AD3d 1053, 1055 [2012], lv denied 20 NY2d 853 [2012]; Henness
v Lusins, 229 AD2d 873, 874 [1996]).

      While the record does not reveal that defendant exercised
the requisite control over the building or agreed, pursuant to
the lease agreement, to make repairs or maintain the interior
mechanical installations or electrical systems that have been
cited as the cause of the explosion (see Hart v O'Brien, 72 AD3d
1257, 1258-1260 [2010]; Grady v Hoffman, 63 AD3d 1266, 1268
[2009]), we agree with Supreme Court's finding that defendant
affirmatively created a dangerous condition that caused
decedent's injuries. Timothy Rouse, the lead investigator who
assessed the building after the explosion, opined that the
building was outfitted with numerous fire ignition sources,
including a hanging heating unit, metal-halide lighting,
florescent lighting, an electric air compressor, paint booth
lighting and an exhaust fan motor located in the paint booth.
Rouse also opined that the explosion was most likely caused by an
electrical spark from the exhaust fan motor and halide lighting,
as both were in operation at the time of the accident. It is
uncontroverted that, in the mid-1990s, defendant converted the
building from a pole barn to a propane tank refinishing facility,
and that the equipment serving as ignition sources had been
installed by defendant prior to third-party defendant's
occupation of the property. Plaintiffs' expert averred that
defendant's shift of its use of the building from agricultural
purposes to propane tank refinishing heightened the risk of fire
                              -4-                518158

to a "high hazard" and that the equipment it used was in
violation of safety standards that pertain to facilities where
propane gas emissions are likely to occur. In fact, third-party
defendant was cited by the Occupational Safety and Health
Administration for the failure of its employees, on the date of
decedent's accident, to ensure that propane tanks were empty
before bringing them inside the building "where unapproved
electrical equipment was present." This evidence, viewed in a
light most favorable to plaintiffs, creates an issue of fact as
to whether defendant's installation of ignition sources
affirmatively created the allegedly dangerous condition that led
to decedent's demise (see Stickles v Fuller, 9 AD3d at 600-601;
Garramone v Pickett, 291 AD2d 629, 629-630 [2002]; Arvanete v
Green St. Realty, 241 AD2d 909, 909 [1997]).

      Next, defendant and third-party defendant assert that the
reckless conduct of third-party defendant's employees was the
sole proximate cause of the explosion and that defendant cannot
be held liable to plaintiffs merely because it allegedly
furnished the condition that allowed for the accident. In order
to sever the causal connection in this matter, it must be
demonstrated that the employees' actions were "extraordinary
under the circumstances, not foreseeable in the normal course of
events, or independent of or far removed from [third-party]
defendant's conduct" (Markel Ins. Co. v Bottini Fuel, 116 AD3d
1143, 1147 [2014], quoting Derdiarian v Felix Contr. Corp., 51
NY2d 308, 315 [1980]; see Ranaudo v Key, 83 AD3d 1315, 1318
[2011]). Certainly, the act of third-party defendant's new
employee of bringing a tank that was not marked as empty into the
building – against the direct instructions of his supervisor –
was negligent. Nonetheless, defendant and third-party defendant
have failed to show that such conduct was unforeseeable, thereby
"sever[ing] any causal link between [defendant's] negligence and
[decedent's] injuries" (Litts v Best Kingston Gen. Rental, 7 AD3d
949, 951 [2004]). Notably, the record demonstrates that the date
of decedent's accident was not the first time that a tank
containing propane had been brought inside the building. That
third-party defendant expressly prohibited its employees from
bringing tanks into the building until it was confirmed that they
were empty did not make it any less foreseeable that a tank
containing propane gas might be brought inside and exposed to the
                              -5-                  518158

facility's ignition sources, thereby creating a risk of an
explosion like the one that occurred here. Inasmuch as it cannot
be established as a matter of law that third-party defendant's
employees' "actions were unforeseeable or unexpected," summary
judgment was properly denied (Carson v Dudley, 25 AD3d 983, 984
[2006]; see Derdiarian v Felix Contr. Corp., 51 NY2d at 316;
Markel Ins. Co. v Bottini Fuel, 116 AD3d at 1147). Plaintiffs'
alternate arguments for affirmance have been rendered academic by
our decision.


     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
