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GREAT N. INS. CO. v. ESTELLE IRRIGATION CORP.

13905A, 105470/08, 600910/08, 590368/10, 13905.

124 A.D.3d 431 (2015)

GREAT NORTHERN INSURANCE COMPANY, as Subrogee of Aby Rosen, Respondent, v. ESTELLE IRRIGATION CORP. et al., Appellants, et al., Defendant. 5 EAST 80TH ST. LLC, Respondent, v. THE WINDOW BOX MG LTD. et al., Appellants and Third-Party Plaintiff-Appellant. TRI-STAR CONSTRUCTION LLC, Third-Party Defendant-Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 8, 2015.

There is no evidence of a written or oral contract that required Estelle to maintain, and thus winterize, plaintiffs' garden irrigation system. Nor is there evidence that Estelle, an "on call" irrigation company, assumed a duty to maintain the system (see Heard v City of New York, 82 N.Y.2d 66, 72 [1993]).

Window Box failed to show that plaintiffs lost or destroyed key evidence (see Mohammed v Command Sec. Corp., ...

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