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Rozeena Ashraf and Khemwatee Sandham By Their Subrogee, the Cumberland v. Frederick Haleluk

August 31, 2012

ROZEENA ASHRAF AND KHEMWATEE SANDHAM BY THEIR SUBROGEE, THE CUMBERLAND INSURANCE GROUP, PLAINTIFFS,
v.
FREDERICK HALELUK, INDIVIDUALLY, FREDERICK HALELUK, D/B/A MR. ICE BUCKET AND STEVEN GOMEZ, DEFENDANTS, AND FREDERICK HALELUK, INDIVIDUALLY, FREDERICK HALELUK, D/B/A MR. ICE BUCKET, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
STEVEN GOMEZ, THIRD-PARTY DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7065-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2011

Before Judges Grall and Alvarez.

The civil action that led to this appeal was commenced by plaintiffs who settled prior to trial. On a third-party complaint alleging negligence proximately causing a fire in a commercial building, the jury awarded $790,861 to the tenant, defendants/third-party plaintiffs, Frederick Haleluk and his business, Mr. Ice Bucket (collectively Haleluk). The landlord, third-party defendant Steven Gomez, appeals from that judgment and the denial of his motions for involuntary dismissal, judgment notwithstanding the verdict and a new trial on liability. We affirm.

Gomez purchased the property, 87-89 Jersey Avenue in New Brunswick, from Haleluk in 2005. After the sale, Haleluk continued to operate his business in a portion of the building leased from Gomez.

Gomez also operated his business in the premises, a bar and a billiards room. Although the rooms were separated by a wall, there was a three-to-four-foot-wide "pass-through" in that wall that allowed bartenders to serve patrons in both rooms. Four or five times prior to the fire, the television, jukebox and lights in the billiards room lost electrical power at the same time. According to Mrs. Gomez, this generally happened during the day; she acknowledged that patrons had complained about it.

The building caught fire between 3:00 and 4:00 a.m. on August 18, 2006, and the three-alarm fire was not brought under control until 8:00 a.m., after the roof had collapsed. The fire was sufficiently extensive to require demolition of the building, and it destroyed Haleluk's supplies and equipment, which had a value equivalent to the judgment.

William Petry, New Brunswick's fire official, concluded that the fire originated in the billiards room. First, the deepest char-patterns left by the fire were in the billiards room. Second, A DVD recording made by a surveillance camera located in the billiards room captured the eruption of the fire high on the wall of that room, and the slow progress it made as it spread into the ceiling and its "bow string truss."*fn1

The recording showed a flame jump out from the wall in the billiards room near the spot where Petry found a metal electrical panel box, or the breaker box, on the floor. The breaker box was warped and charred inside. From its condition and proximity to the spot where the fire started, Petry concluded the fire was caused by "an unspecified short circuit" or "electrical malfunction" inside it. Although he could not identify the malfunction, he noted that a "short" in an appliance powered from the panel should have tripped the breaker and that there was "something internal to that box." Moreover, there were no signs of any other cause for the fire, such as accelerants, which would have caused a fast fire, or a fire originating in furnishings, which would have left different charring patterns.

Haleluk's expert also viewed the DVD. He was unable to inspect the building because it had been demolished before he was retained. In his view, the DVD provided "good data" about the cause of the fire and helped him eliminate potential causes such as accelerants. He concluded that the "probable" cause of the fire was "some type of electrical malfunction," but he could not identify a particular component of the electrical system that malfunctioned.

There was conflicting testimony about the breaker box in the billiards room - when it was installed, whether it was on the bar or billiards room side of the same wall and whether that electrical panel or one in the portion of the building occupied by Haleluk controlled the wires powering the lights, television and jukebox. According to Haleluk, there was no electrical box on the wall where Petry said it was when Haleluk sold the building to Gomez, but according to Gomez, it was always there.

On this record, the significance of the discrepancy in the testimony about the location of the electrical panel and its proximity to the wall on which the fire erupted is difficult to discern. The witnesses marked locations of various features and furnishings on diagrams and photographs during their testimony but were not asked to describe their relative positions. Although plaintiffs have provided us with only two of the numerous photographs in evidence, they both depict the same area - the "pass-through."

Eight days before the fire, fire officials inspected the premises and identified several violations. The experts acknowledged that none ...


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