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NITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-61958-SINGHAL/VALLE
ANNETTE DAVIS,
Plaintiff,
v.
GREAT NORTHERN INSURANCE
COMPANY and FEDERAL INSURANCE
COMPANY,
Defendant.
___________________________________/
OPINION AND ORDER
THIS CAUSE is before the Court upon Plaintiff<66>s Motion for Judgment on the
Pleadings on Count I of the Amended Complaint based upon Defendant<6E>s Breach of
Contract, filed on January 27, 2022 (the <20>Motion<6F>) (DE [32]). Defendant (<28>Defendant<6E> or
<EFBFBD>Chubb<EFBFBD>) filed a Response on March 1, 2022 (the <20>Response<73>) (DE [46]). Plaintiff filed a
Reply on March 8, 2022 (the <20>Reply<6C>) (DE [51]). An In-Person Hearing on the Motion was
held on March 15, 2022. The Motion is now ripe for consideration.
I. BACKGROUND
This action involves an insurance coverage dispute related to injuries Plaintiff
allegedly suffered from exposure to toxic mold in her home. Plaintiff owned and resided
in The Tides at Bridgeside Square Condominium (the <20>Tides<65>). See Am. Compl. <20> 4 (DE
[23]). Plaintiff sued Akam On-Site, Inc. (<28>Akam<61>), the property manager of Tides, and
several other entities alleging negligent property management services in connection with
annual maintenance work on a water-cooling tower at the Tides (DE [25], at 10). The
botched maintenance work is alleged to have allowed water to infiltrate the condominium,
causing a rampant mold infestation. Id. Under Akam<61>s property management contract,
Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 1 of 5
2
Tides designated Akam as a <20>named insured<65> under its liability policies (DE [1-8], at 267).
At issue are two separate liability policies of Tides. The first policy, by AmTrust
International Underwriters (<28>AmTrust<73>), insured Tides under a primary commercial
general liability policy (DE [46]), at 2. The AmTrust Policy contains an <20>Organic Pathogen
Exclusion,<2C> which excludes bodily injury, <20>which would not have occurred . . . but for . . .
exposure to . . . any . . . <20>[o]rganic pathogen,<2C><> which includes <20>any type of mold . . . .<2E> See
Am. Compl. <20> 34.
The second policy, by Great Northern Insurance Company (<28>Great Northern<72>) and
Federal Insurance Company (<28>Federal) (together the <20>Chubb Insurers<72> and <20>Chubb
Policies<EFBFBD>), insured Tides under primary insurance policies issued by Great Northern and
excess and umbrella policies issued by Federal. See Am. Compl. <20><> 1, 35 (DE [23]).
Based on the AmTrust and Chubb policies<65> respective <20>other insurance<63> provisions, the
Chubb policies were afforded excess priority to the primary AmTrust policies (DE [25], at
8). Chubb advised Akam of the priority of coverages and agreed to handle the matter
under a reservation of rights. Id. at 7. Akam did not dispute this reservation for nearly two
years. Id. at 9.
Plaintiff filed a negligence lawsuit against Akam and other defendants in state court
(<28>the Underlying Lawsuit<69>) (DE [32], at 2). On December 10, 2020, as trial was
approaching, Chubb advised Akam it was electing its right to associate in skilled trial
counsel to help defend Akam (DE [25], at 11). However, Akam objected to Chubb<62>s
attempt to associate counsel. Id. Plaintiff, Akam, and Tides subsequently entered into a
settlement of the Underlying Lawsuit (the <20>Coblentz Agreement<6E>) (DE [48-2]). The
Coblentz Agreement included a payment in the sum of $250,000 to be made to Plaintiff,
which included $100,000 to be paid directly from Akam and $150,000 to be paid by
Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 2 of 5
3
AmTrust on Akam<61>s behalf. Id. at 7. Curiously, AmTrust was not a party to the Coblentz
Agreement. Id. at 1. Second, the Coblentz Agreement assigned to Plaintiff all of Akam<61>s
claims against the Chubb Insurers arising out of their alleged denial of coverage for, and
alleged refusal to defend Akam against, Plaintiff<66>s negligence claims in the Underlying
Lawsuit. Id. at 7. Third, the Coblentz Agreement included a consent judgment in favor of
Plaintiff for $14.5 million and specified that <20>Davis<69> right to seek satisfaction of the Consent
Judgment [was] solely against [the Chubb Insurers] and the [Chubb Policies].<2E> Id. at 8.
Plaintiff now moves for Judgment on the Pleadings on Count I of the Amended Complaint.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(c), after the pleadings are closed,
a party may move for judgment on the pleadings if no material facts remain at issue and
the parties<65> dispute can be resolved on the pleadings and those facts of which the court
can take judicial notice. See Fed. R. Civ. P. 12(c); Hawthorne v. Mac Adjustment, Inc.,
140 F.3d 1367, 1370 (11th Cir. 1998). <20>In determining whether a party is entitled to
judgment on the pleadings, we accept as true all material facts alleged in the non-moving
party's pleading, and we view those facts in the light most favorable to the non-moving
party.<2E> Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). <20>If a comparison
of the averments in the competing pleadings reveals a material dispute of fact, judgment
on the pleadings must be denied.<2E> Id.
III. DISCUSSION
Plaintiff focuses her argument on whether the AmTrust primary policy provided
coverage for her claim, and specifically, whether the Organic Pathogen exclusion applied.
See Motion, at 9<>11. According to Plaintiff, the Organic Pathogen exclusion did apply and
thereby released AmTrust from its duty to defend and indemnify Akam. Id. This, in turn,
Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 3 of 5
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activated the Chubb Policies, requiring that the Chubb Insurers provide a defense and
indemnity to Akam Id. However, the Chubb Insurers allege in their answer, affirmative
defenses, and counterclaim, that AmTrust did in fact defend and indemnify Akam. See
(DE [25], at 1<>9). Six of Chubb<62>s denials specifically relate to Plaintiff<66>s allegations
regarding coverage under the AmTrust policy and whether the Organic Pathogen
exclusion applied. See (DE [25] <20><> 32<33>34, 37, 41, 44). Moreover, Chubb alleges several
affirmative defenses providing factual information concerning AmTrust<73>s primary
coverage. See (DE [25], at 7<>8). Specifically, Chubb alleges it had no duty to defend and
indemnify Akam because the AmTrust policies are primary to the Chubb Policies, and
AmTrust was in fact fully defending and indemnifying Akam. See Response, at 7.
Moreover, Chubb alleges that it, at no time, denied its duty to defend or the possibility of
coverage. Id. Chubb further states it handled the Underlying Lawsuit under a complete
reservation of rights, which was accepted by Akam. Id.
In considering the Motion, the Court must not only accept the nonmovant Chubb<62>s
allegations as true but must also view those allegations in the light most favorable to
Chubb. See Perez, 774 F.3d at 1335. And if a comparison in the pleadings reveals a
material dispute of fact, judgment must be denied. Id. Here, the pleadings directly butt
heads on whether AmTrust did in fact defend Akam. Plaintiff argues that, even though
AmTrust contributed funds to Plaintiff on Akam<61>s behalf in connection with settling the
Underlying Action, as indicated in the Coblentz Agreement, this did not constitute a
defense of Akam, but rather a voluntary payment to settle the matter. In Plaintiff<66>s view,
AmTrust<EFBFBD>s policy did not provide coverage because of the Organic Pathogen exclusion.
Defendant argues the fact that AmTrust contributed funds to Plaintiff on Akam<61>s behalf in
connection with settling the Underlying Action, as indicated in the Coblentz Agreement,
Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 4 of 5
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necessarily means that AmTrust did in fact defend Akam and impliedly waive the Organic
Pathogen exclusion. Defendant further alleges that AmTrust fully defended Akam and
assumed the primary responsibility for the Underlying Action. See (DE [48-1], at 9<>10).
Viewed in the light most favorable to Chubb, and accepting all of Chubb<62>s allegations as
true, the Court finds AmTrust defended Akam by contributing funds to Plaintiff on Akam<61>s
behalf in connection with settling the Underlying Action, as indicated in the Coblentz
Agreement. And in doing so, AmTrust necessarily waived the Organic Pathogen
exclusion. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff<66>s Motion for Judgment on the Pleadings
on Count I of the Amended Complaint based upon Defendant<6E>s Breach of Contract (DE
[32]) is DENIED.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 16th day of
March 2022

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718.113 Maintenance; limitation upon improvement; display of flag; hurricane protection; display of religious decorations.<2E>
(1) Maintenance of the common elements is the responsibility of the association, except for any maintenance responsibility for limited common elements assigned to the unit owner by the declaration. The association shall provide for the maintenance, repair, and replacement of the condominium property for which it bears responsibility pursuant to the declaration of condominium. After turnover of control of the association to the unit owners, the association must perform any required maintenance identified by the developer pursuant to s. 718.301(4)(p) and (q) until the association obtains new maintenance protocols from a licensed professional engineer or architect or a person certified as a reserve specialist or professional reserve analyst by the Community Associations Institute or the Association of Professional Reserve Analysts. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements.
(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.
(b) There shall not be any material alteration of, or substantial addition to, the common elements of any condominium operated by a multicondominium association unless approved in the manner provided in the declaration of the affected condominium or condominiums as originally recorded or as amended under the procedures provided therein. If a declaration as originally recorded or as amended under the procedures provided therein does not specify a procedure for approving such an alteration or addition, the approval of 75 percent of the total voting interests of each affected condominium is required before the material alterations or substantial additions are commenced. This subsection does not prohibit a provision in any declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein requiring the approval of unit owners in any condominium operated by the same association or requiring board approval before a material alteration or substantial addition to the common elements is permitted. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.
(c) There shall not be any material alteration or substantial addition made to association real property operated by a multicondominium association, except as provided in the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein. If the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein do not specify the procedure for approving an alteration or addition to association real property, the approval of 75 percent of the total voting interests of the association is required before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.
(3) A unit owner shall not do anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of the association property or condominium property which is to be maintained by the association.
(4) Any unit owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, Patriot Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 4 1/2 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard, regardless of any declaration rules or requirements dealing with flags or decorations.
(5) To protect the health, safety, and welfare of the people of the state and to ensure uniformity and consistency in the hurricane protections installed by condominium associations and unit owners, this subsection applies to all residential and mixed-use condominiums in the state, regardless of when the condominium is created pursuant to the declaration of condominium. Each board of administration of a residential condominium or mixed-use condominium must adopt hurricane protection specifications for each building within each condominium operated by the association which may include color, style, and other factors deemed relevant by the board. All specifications adopted by the board must comply with the applicable building code. The installation, maintenance, repair, replacement, and operation of hurricane protection in accordance with this subsection is not considered a material alteration or substantial addition to the common elements or association property within the meaning of this section.
(a) The board may, subject to s. 718.3026 and the approval of a majority of voting interests of the residential condominium or mixed-use condominium, install or require that unit owners install hurricane protection that complies with or exceeds the applicable building code. A vote of the unit owners to require the installation of hurricane protection must be set forth in a certificate attesting to such vote and include the date that the hurricane protection must be installed. The board must record the certificate in the public records of the county in which the condominium is located. Once the certificate is recorded, the board must mail or hand deliver a copy of the recorded certificate to the unit owners at the owners<72> addresses, as reflected in the records of the association. The board may provide to unit owners who previously consented to receive notice by electronic transmission a copy of the recorded certificate by electronic transmission. The failure to record the certificate or send a copy of the recorded certificate to the unit owners does not affect the validity or enforceability of the vote of the unit owners. A vote of the unit owners under this paragraph is not required if the installation, maintenance, repair, and replacement of the hurricane protection, or any exterior windows, doors, or other apertures protected by the hurricane protection, is the responsibility of the association pursuant to the declaration of condominium as originally recorded or as amended, or if the unit owners are required to install hurricane protection pursuant to the declaration of condominium as originally recorded or as amended. If hurricane protection that complies with or exceeds the current applicable building code has been previously installed, the board may not install the same type of hurricane protection or require that unit owners install the same type of hurricane protection unless the installed hurricane protection has reached the end of its useful life or unless it is necessary to prevent damage to the common elements or to a unit.
(b) The board may operate hurricane protection without permission of the unit owners only if such operation is necessary to preserve and protect the condominium property or association property.
(c) Notwithstanding any other provision in the residential condominium or mixed-use condominium documents, if approval is required by the documents, a board may not refuse to approve the installation or replacement of hurricane protection by a unit owner which conforms to the specifications adopted by the board. However, a board may require the unit owner to adhere to an existing unified building scheme regarding the external appearance of the condominium.
(d) Unless otherwise provided in the declaration as originally recorded, or as amended, a unit owner is not responsible for the cost of any removal or reinstallation of hurricane protection, including exterior windows, doors, or other apertures, if its removal is necessary for the maintenance, repair, or replacement of other condominium property or association property for which the association is responsible. The board shall determine if the removal or reinstallation of hurricane protection must be completed by the unit owner or the association if the declaration as originally recorded, or as amended, does not specify who is responsible for such costs. If such removal or reinstallation is completed by the association, the costs incurred by the association may not be charged to the unit owner. If such removal or reinstallation is completed by the unit owner, the association must reimburse the unit owner for the cost of the removal or reinstallation or the association must apply a credit toward future assessments in the amount of the unit owner<65>s cost to remove or reinstall the hurricane protection.
(6) An association may not refuse the request of a unit owner for a reasonable accommodation for the attachment on the mantel or frame of the door of the unit owner of a religious object not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep.
(7) Notwithstanding the provisions of this section or the governing documents of a condominium or a multicondominium association, the board of administration may, without any requirement for approval of the unit owners, install upon or within the common elements or association property solar collectors, clotheslines, or other energy-efficient devices based on renewable resources for the benefit of the unit owners.
(8) The Legislature finds that the use of electric and natural gas fuel vehicles conserves and protects the state<74>s environmental resources, provides significant economic savings to drivers, and serves an important public interest. The participation of condominium associations is essential to the state<74>s efforts to conserve and protect the state<74>s environmental resources and provide economic savings to drivers. For purposes of this subsection, the term <20>natural gas fuel<65> has the same meaning as in s. 206.9951, and the term <20>natural gas fuel vehicle<6C> means any motor vehicle, as defined in s. 320.01, that is powered by natural gas fuel. Therefore, the installation of an electric vehicle charging station or a natural gas fuel station shall be governed as follows:
(a) A declaration of condominium or restrictive covenant may not prohibit or be enforced so as to prohibit any unit owner from installing an electric vehicle charging station or a natural gas fuel station within the boundaries of the unit owner<65>s limited common element or exclusively designated parking area. The board of administration of a condominium association may not prohibit a unit owner from installing an electric vehicle charging station for an electric vehicle, as defined in s. 320.01, or a natural gas fuel station for a natural gas fuel vehicle within the boundaries of his or her limited common element or exclusively designated parking area. The installation of such charging or fuel stations is subject to the provisions of this subsection.
(b) The installation may not cause irreparable damage to the condominium property.
(c) The electricity for the electric vehicle charging station or natural gas fuel station must be separately metered or metered by an embedded meter and payable by the unit owner installing such charging or fuel station or by his or her successor.
(d) The cost for supply and storage of the natural gas fuel must be paid by the unit owner installing the natural gas fuel station or by his or her successor.
(e) The unit owner who is installing an electric vehicle charging station or a natural gas fuel station is responsible for the costs of installation, operation, maintenance, and repair, including, but not limited to, hazard and liability insurance. The association may enforce payment of such costs under s. 718.116.
(f) If the unit owner or his or her successor decides there is no longer a need for the electric vehicle charging station or natural gas fuel station, such person is responsible for the cost of removal of such charging or fuel station. The association may enforce payment of such costs under s. 718.116.
(g) The unit owner installing, maintaining, or removing the electric vehicle charging station or natural gas fuel station is responsible for complying with all federal, state, or local laws and regulations applicable to such installation, maintenance, or removal.
(h) The association may require the unit owner to:
1. Comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property.
2. Comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station or natural gas fuel station, provided that such standards may not prohibit the installation of such charging or fuel station or substantially increase the cost thereof.
3. Engage the services of a licensed and registered firm familiar with the installation or removal and core requirements of an electric vehicle charging station or a natural gas fuel station.
4. Provide a certificate of insurance naming the association as an additional insured on the owner<65>s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station or natural gas fuel station within 14 days after receiving the association<6F>s approval to install such charging or fuel station or notice to provide such a certificate.
5. Reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station or natural gas fuel station within 14 days after receiving the association<6F>s insurance premium invoice.
(i) The association provides an implied easement across the common elements of the condominium property to the unit owner for purposes of electric vehicle charging station or natural gas fuel station installation, and the furnishing of electrical power or natural gas fuel supply, including any necessary equipment, to such charging or fuel station, subject to the requirements of this subsection.
(9) The board of administration of an association may make available, install, or operate an electric vehicle charging station or a natural gas fuel station upon the common elements or association property and establish the charges or the manner of payments for the unit owners, residents, or guests who use the electric vehicle charging station or natural gas fuel station. For the purposes of this section, the installation, repair, or maintenance of an electric vehicle charging station or natural gas fuel station under this subsection does not constitute a material alteration or substantial addition to the common elements or association property.
History.<2E>s. 1, ch. 76-222; s. 1, ch. 89-161; s. 8, ch. 90-151; s. 6, ch. 91-103; s. 5, ch. 91-426; s. 4, ch. 92-49; s. 8, ch. 94-350; s. 43, ch. 95-274; s. 855, ch. 97-102; s. 54, ch. 2000-302; s. 10, ch. 2002-27; s. 1, ch. 2003-28; s. 9, ch. 2008-28; s. 26, ch. 2008-191; s. 89, ch. 2009-21; s. 59, ch. 2010-176; s. 4, ch. 2011-196; s. 4, ch. 2013-188; s. 2, ch. 2014-74; s. 3, ch. 2018-96; s. 5, ch. 2021-99; s. 18, ch. 2022-183; s. 1, ch. 2023-64; s. 8, ch. 2023-203; s. 10, ch. 2024-244; s. 9, ch. 2025-175.

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718.1265 Association emergency powers.<2E>
(1) To the extent allowed by law, unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with s. 617.0830, the board of administration, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may exercise the following powers:
(a) Conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, electronic transmission, public service announcements, and conspicuous posting on the condominium property or association property or any other means the board deems reasonable under the circumstances. Notice of decisions also may be communicated as provided in this paragraph.
(b) Cancel and reschedule any association meeting.
(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.
(d) Relocate the association<6F>s principal office or designate alternative principal offices.
(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan or an emergency plan before, during, or following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.
(g) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the condominium property or association property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.
(h) Require the evacuation of the condominium property in the event of an evacuation order in the locale in which the condominium is located. If a unit owner or other occupant of a condominium fails or refuses to evacuate the condominium property or association property for which the board has required evacuation, the association is immune from liability or injury to persons or property arising from such failure or refusal.
(i) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the condominium property, association property, or any portion thereof can be safely inhabited, accessed, or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(j) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.
(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further injury, contagion, or damage to the condominium property or association property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property, and the sanitizing of the condominium property or association property, as applicable.
(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.
(m) Without unit owners<72> approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.
(2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners<72> family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage, injury, or contagion and make emergency repairs.
(3) Notwithstanding paragraphs (1)(f)-(i), during a state of emergency declared by executive order or proclamation of the Governor pursuant to s. 252.36, an association may not prohibit unit owners, tenants, guests, agents, or invitees of a unit owner from accessing the unit and the common elements and limited common elements appurtenant thereto for the purposes of ingress to and egress from the unit and when access is necessary in connection with:
(a) The sale, lease, or other transfer of title of a unit; or
(b) The habitability of the unit or for the health and safety of such person unless a governmental order or determination, or a public health directive from the Centers for Disease Control and Prevention, has been issued prohibiting such access to the unit. Any such access is subject to reasonable restrictions adopted by the association.
History.<2E>s. 15, ch. 2008-28; s. 9, ch. 2021-99; s. 10, ch. 2025-175.

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718.303 Obligations of owners and occupants; remedies.<2E>
(1) Each unit owner, tenant and other invitee, and association is governed by, and must comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws which are expressly incorporated into any lease of a unit. Actions at law or in equity, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:
(a) The association.
(b) A unit owner.
(c) Directors designated by the developer, for actions taken by them before control of the association is assumed by unit owners other than the developer.
(d) Any director who willfully and knowingly fails to comply with these provisions.
(e) Any tenant leasing a unit, and any other invitee occupying a unit.
The prevailing party in any such action or in any action in which the purchaser claims a right of voidability based upon contractual provisions as required in s. 718.503(1)(a) is entitled to recover reasonable attorney fees. A unit owner prevailing in an action between the association and the unit owner under this subsection, in addition to recovering his or her reasonable attorney fees, may recover additional amounts as determined by the court to be necessary to reimburse the unit owner for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. Actions arising under this subsection are not considered actions for specific performance.
(2) A provision of this chapter may not be waived if the waiver would adversely affect the rights of a unit owner or the purpose of the provision, except that unit owners or members of a board of administration may waive notice of specific meetings in writing if provided by the bylaws. Any instruction given in writing by a unit owner or purchaser to an escrow agent may be relied upon by an escrow agent, whether or not such instruction and the payment of funds thereunder might constitute a waiver of any provision of this chapter.
(3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit. A fine may be levied by the board on the basis of each day of a continuing violation, with a single notice and opportunity for hearing before a committee as provided in paragraph (b). However, the fine may not exceed $100 per violation, or $1,000 in the aggregate.
(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner<65>s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. This paragraph does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.
(b) A fine or suspension levied by the board of administration may not be imposed unless the board first provides at least 14 days<79> written notice to the unit owner and, if applicable, any tenant, licensee, or invitee of the unit owner sought to be fined or suspended, and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the committee does not approve the proposed fine or suspension by majority vote, the fine or suspension may not be imposed. If the proposed fine or suspension is approved by the committee, the fine payment is due 5 days after notice of the approved fine is provided to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner. The association must provide written notice of such fine or suspension by mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner.
(4) If a unit owner is more than 90 days delinquent in paying a fee, fine, or other monetary obligation due to the association, the association may suspend the right of the unit owner or the unit<69>s occupant, licensee, or invitee to use common elements, common facilities, or any other association property until the fee, fine, or other monetary obligation is paid in full. This subsection does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators. The notice and hearing requirements under subsection (3) do not apply to suspensions imposed under this subsection.
(5) An association may suspend the voting rights of a unit owner or member due to nonpayment of any fee, fine, or other monetary obligation due to the association which is more than $1,000 and more than 90 days delinquent. Proof of such obligation must be provided to the unit owner or member 30 days before such suspension takes effect. At least 90 days before an election, an association must notify a unit owner or member that his or her voting rights may be suspended due to a nonpayment of a fee or other monetary obligation. A voting interest or consent right allocated to a unit owner or member which has been suspended by the association shall be subtracted from the total number of voting interests in the association, which shall be reduced by the number of suspended voting interests when calculating the total percentage or number of all voting interests available to take or approve any action, and the suspended voting interests shall not be considered for any purpose, including, but not limited to, the percentage or number of voting interests necessary to constitute a quorum, the percentage or number of voting interests required to conduct an election, or the percentage or number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. The suspension ends upon full payment of all obligations currently due or overdue the association. The notice and hearing requirements under subsection (3) do not apply to a suspension imposed under this subsection.
(6) All suspensions imposed pursuant to subsection (4) or subsection (5) must be approved at a properly noticed board meeting. Upon approval, the association must notify the unit owner and, if applicable, the unit<69>s occupant, licensee, or invitee by mail or hand delivery.
(7) The suspensions permitted by paragraph (3)(a) and subsections (4) and (5) apply to a member and, when appropriate, the member<65>s tenants, guests, or invitees, even if the delinquency or failure that resulted in the suspension arose from less than all of the multiple units owned by a member.
(8) A receiver may not exercise voting rights of any unit owner whose unit is placed in receivership for the benefit of the association pursuant to this chapter.
History.<2E>s. 1, ch. 76-222; s. 1, ch. 77-174; s. 12, ch. 84-368; s. 16, ch. 90-151; s. 14, ch. 91-103; s. 5, ch. 91-426; s. 11, ch. 92-49; s. 864, ch. 97-102; s. 14, ch. 2003-14; s. 20, ch. 2008-28; s. 16, ch. 2010-174; s. 8, ch. 2011-196; s. 6, ch. 2013-188; s. 10, ch. 2015-97; s. 7, ch. 2017-188; s. 7, ch. 2018-96; s. 11, ch. 2021-99; s. 19, ch. 2024-244.

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718.501 Authority, responsibility, and duties of Division of Florida Condominiums, Timeshares, and Mobile Homes.<2E>
(1) The division may enforce and ensure compliance with this chapter and rules relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units and complaints. In performing its duties, the division has complete jurisdiction to investigate complaints and enforce compliance with respect to associations that are still under developer control or the control of a bulk assignee or bulk buyer pursuant to part VII of this chapter and complaints against developers, bulk assignees, or bulk buyers involving improper turnover or failure to turnover, pursuant to s. 718.301. However, after turnover has occurred, the division has jurisdiction to review records and investigate complaints related only to:
(a)1. Procedural aspects and records relating to financial issues, including annual financial reporting under s. 718.111(13); assessments for common expenses, fines, and commingling of reserve and operating funds under s. 718.111(14); use of debit cards for unintended purposes under s. 718.111(15); the annual operating budget and the allocation of reserve funds under s. 718.112(2)(f); financial records under s. 718.111(12)(a)11.; and any other record necessary to determine the revenues and expenses of the association.
2. Elections, including election and voting requirements under s. 718.112(2)(b) and (d), recall of board members under s. 718.112(2)(l), electronic voting under s. 718.128, and elections that occur during an emergency under s. 718.1265(1)(a).
3. The maintenance of and unit owner access to association records under s. 718.111(12).
4. The procedural aspects of meetings, including unit owner meetings, quorums, voting requirements, proxies, board of administration meetings, and budget meetings under s. 718.112(2).
5. The disclosure of conflicts of interest under ss. 718.111(1)(a) and 718.3027, including limitations contained in s. 718.111(3)(f).
6. The removal of a board director or officer under ss. 718.111(1)(a) and (15) and 718.112(2)(p) and (q).
7. The procedural completion of structural integrity reserve studies under s. 718.112(2)(g) and the milestone inspections under s. 553.899.
8. Completion of repairs required by a milestone inspection under s. 553.899.
9. Any written inquiries by unit owners to the association relating to such matters, including written inquiries under s. 718.112(2)(a)2.
10. The requirement for associations to maintain an insurance policy or fidelity bonding for all persons who control or disperse funds of the association under s. 718.111(11)(h).
11. Board member education requirements under s. 718.112(2)(d)5.b.
12. Reporting requirements for structural integrity reserve studies under subsection (3) and under s. 718.112(2)(g)12.
(b)1. The division may make necessary public or private investigations within or outside this state to determine whether any person has violated this chapter or any rule or order hereunder, to aid in the enforcement of this chapter, or to aid in the adoption of rules or forms.
2. The division may submit any official written report, worksheet, or other related paper, or a duly certified copy thereof, compiled, prepared, drafted, or otherwise made by and duly authenticated by a financial examiner or analyst to be admitted as competent evidence in any hearing in which the financial examiner or analyst is available for cross-examination and attests under oath that such documents were prepared as a result of an examination or inspection conducted pursuant to this chapter.
(c) The division may require or permit any person to file a statement in writing, under oath or otherwise, as the division determines, as to the facts and circumstances concerning a matter to be investigated.
(d) For the purpose of any investigation under this chapter, the division director or any officer or employee designated by the division director may administer oaths or affirmations, subpoena witnesses and compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. Upon the failure by a person to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all affected persons, the division may apply to the circuit court for an order compelling compliance.
(e) Notwithstanding any remedies available to unit owners and associations, if the division has reasonable cause to believe that a violation of any provision of this chapter or related rule has occurred, the division may institute enforcement proceedings in its own name against any developer, bulk assignee, bulk buyer, association, officer, or member of the board of administration, or its assignees or agents, as follows:
1. The division may permit a person whose conduct or actions may be under investigation to waive formal proceedings and enter into a consent proceeding whereby orders, rules, or letters of censure or warning, whether formal or informal, may be entered against the person.
2. The division may issue an order requiring the developer, bulk assignee, bulk buyer, association, developer-designated officer, or developer-designated member of the board of administration, developer-designated assignees or agents, bulk assignee-designated assignees or agents, bulk buyer-designated assignees or agents, community association manager, or community association management firm to cease and desist from the unlawful practice and take such affirmative action as in the judgment of the division carry out the purposes of this chapter. If the division finds that a developer, bulk assignee, bulk buyer, association, officer, or member of the board of administration, or its assignees or agents, is violating or is about to violate any provision of this chapter, any rule adopted or order issued by the division, or any written agreement entered into with the division, and presents an immediate danger to the public requiring an immediate final order, it may issue an emergency cease and desist order reciting with particularity the facts underlying such findings. The emergency cease and desist order is effective for 90 days. If the division begins nonemergency cease and desist proceedings, the emergency cease and desist order remains effective until the conclusion of the proceedings under ss. 120.569 and 120.57.
3. If a developer, bulk assignee, or bulk buyer fails to pay any restitution determined by the division to be owed, plus any accrued interest at the highest rate permitted by law, within 30 days after expiration of any appellate time period of a final order requiring payment of restitution or the conclusion of any appeal thereof, whichever is later, the division must bring an action in circuit or county court on behalf of any association, class of unit owners, lessees, or purchasers for restitution, declaratory relief, injunctive relief, or any other available remedy. The division may also temporarily revoke its acceptance of the filing for the developer to which the restitution relates until payment of restitution is made.
4. The division may petition the court for appointment of a receiver or conservator. If appointed, the receiver or conservator may take action to implement the court order to ensure the performance of the order and to remedy any breach thereof. In addition to all other means provided by law for the enforcement of an injunction or temporary restraining order, the circuit court may impound or sequester the property of a party defendant, including books, papers, documents, and related records, and allow the examination and use of the property by the division and a court-appointed receiver or conservator.
5. The division may apply to the circuit court for an order of restitution whereby the defendant in an action brought under subparagraph 4. is ordered to make restitution of those sums shown by the division to have been obtained by the defendant in violation of this chapter. At the option of the court, such restitution is payable to the conservator or receiver appointed under subparagraph 4. or directly to the persons whose funds or assets were obtained in violation of this chapter.
6. The division may impose a civil penalty against a developer, bulk assignee, or bulk buyer, or association, or its assignee or agent, for any violation of this chapter or related rule. The division may impose a civil penalty individually against an officer or board member who willfully and knowingly violates this chapter, an adopted rule, or a final order of the division; may order the removal of such individual as an officer or from the board of administration or as an officer of the association; and may prohibit such individual from serving as an officer or on the board of a community association for a period of time. The term <20>willfully and knowingly<6C> means that the division informed the officer or board member that his or her action or intended action violates this chapter, a rule adopted under this chapter, or a final order of the division and that the officer or board member refused to comply with the requirements of this chapter, a rule adopted under this chapter, or a final order of the division. The division, before initiating formal agency action under chapter 120, must afford the officer or board member an opportunity to voluntarily comply, and an officer or board member who complies within 10 days is not subject to a civil penalty. A penalty may be imposed on the basis of each day of continuing violation, but the penalty for any offense may not exceed $5,000. The division shall adopt by rule penalty guidelines applicable to possible violations or to categories of violations of this chapter or rules adopted by the division. The guidelines must specify a meaningful range of civil penalties for each such violation of the statute and rules and must be based upon the harm caused by the violation, upon the repetition of the violation, and upon such other factors deemed relevant by the division. For example, the division may consider whether the violations were committed by a developer, bulk assignee, or bulk buyer, or owner-controlled association, the size of the association, and other factors. The guidelines must designate the possible mitigating or aggravating circumstances that justify a departure from the range of penalties provided by the rules. It is the legislative intent that minor violations be distinguished from those which endanger the health, safety, or welfare of the condominium residents or other persons and that such guidelines provide reasonable and meaningful notice to the public of likely penalties that may be imposed for proscribed conduct. This subsection does not limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, agreed settlement, or consent order. All amounts collected shall be deposited with the Chief Financial Officer to the credit of the Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund. If a developer, bulk assignee, or bulk buyer fails to pay the civil penalty and the amount deemed to be owed to the association, the division shall issue an order directing that such developer, bulk assignee, or bulk buyer cease and desist from further operation until such time as the civil penalty is paid or may pursue enforcement of the penalty in a court of competent jurisdiction. If an association fails to pay the civil penalty, the division shall pursue enforcement in a court of competent jurisdiction, and the order imposing the civil penalty or the cease and desist order is not effective until 20 days after the date of such order. Any action commenced by the division shall be brought in the county in which the division has its executive offices or in the county in which the violation occurred.
7. If a unit owner presents the division with proof that the unit owner has requested access to official records in writing by certified mail, and that after 10 days the unit owner again made the same request for access to official records in writing by certified mail, and that more than 10 days has elapsed since the second request and the association has still failed or refused to provide access to official records as required by this chapter, the division shall issue a subpoena requiring production of the requested records at the location in which the records are kept pursuant to s. 718.112. Upon receipt of the records, the division must provide to the unit owner who was denied access to such records the produced official records without charge.
8. In addition to subparagraph 6., the division may seek the imposition of a civil penalty through the circuit court for any violation for which the division may issue a notice to show cause under paragraph (t). The civil penalty shall be at least $500 but no more than $5,000 for each violation. The court may also award to the prevailing party court costs and reasonable attorney fees and, if the division prevails, may also award reasonable costs of investigation.
9. The division may issue citations and promulgate rules to provide for citation bases and citation procedures in accordance with this paragraph.
(f) The division may prepare and disseminate a prospectus and other information to assist prospective owners, purchasers, lessees, and developers of residential condominiums in assessing the rights, privileges, and duties pertaining thereto.
(g) The division may adopt rules to administer and enforce this chapter.
(h) The division shall establish procedures for providing notice to an association and the developer, bulk assignee, or bulk buyer during the period in which the developer, bulk assignee, or bulk buyer controls the association if the division is considering the issuance of a declaratory statement with respect to the declaration of condominium or any related document governing such condominium community.
(i) The division shall furnish each association that pays the fees required by paragraph (2)(a) a copy of this chapter, as amended, and the rules adopted thereto on an annual basis.
(j) The division shall annually provide each association with a summary of declaratory statements and formal legal opinions relating to the operations of condominiums which were rendered by the division during the previous year.
(k) The division shall provide training and educational programs for condominium association board members and unit owners. The training may, in the division<6F>s discretion, include web-based electronic media and live training and seminars in various locations throughout the state. The division may review and approve education and training programs for board members and unit owners offered by providers and shall maintain a current list of approved programs and providers and make such list available to board members and unit owners in a reasonable and cost-effective manner. The division shall provide the division-approved provider with the template certificate for issuance directly to the association<6F>s board of directors who have satisfactorily completed the requirements under s. 718.112(2)(d). The division shall adopt rules to implement this section.
(l) The division shall maintain a toll-free telephone number accessible to condominium unit owners.
(m) The division shall develop a program to certify both volunteer and paid mediators to provide mediation of condominium disputes. The division shall provide, upon request, a list of such mediators to any association, unit owner, or other participant in alternative dispute resolution proceedings under s. 718.1255 requesting a copy of the list. The division shall include on the list of volunteer mediators only the names of persons who have received at least 20 hours of training in mediation techniques or who have mediated at least 20 disputes. In order to become initially certified by the division, paid mediators must be certified by the Supreme Court to mediate court cases in county or circuit courts. However, the division may adopt by rule additional factors for the certification of paid mediators, which must be related to experience, education, or background. Any person initially certified as a paid mediator by the division must, in order to continue to be certified, comply with the factors or requirements adopted by rule.
(n) If a complaint is made, the division must conduct its inquiry with due regard for the interests of the affected parties. Within 30 days after receipt of a complaint, the division shall acknowledge the complaint in writing and notify the complainant whether the complaint is within the jurisdiction of the division and whether additional information is needed by the division from the complainant. The division shall conduct its investigation and, within 90 days after receipt of the original complaint or of timely requested additional information, take action upon the complaint. However, the failure to complete the investigation within 90 days does not prevent the division from continuing the investigation, accepting or considering evidence obtained or received after 90 days, or taking administrative action if reasonable cause exists to believe that a violation of this chapter or a rule has occurred. If an investigation is not completed within the time limits established in this paragraph, the division shall, on a monthly basis, notify the complainant in writing of the status of the investigation. When reporting its action to the complainant, the division shall inform the complainant of any right to a hearing under ss. 120.569 and 120.57. The division may adopt rules regarding the submission of a complaint against an association.
(o) Condominium association directors, officers, and employees; condominium developers; bulk assignees, bulk buyers, and community association managers; and community association management firms have an ongoing duty to reasonably cooperate with the division in any investigation under this section. The division shall refer to local law enforcement authorities any person whom the division believes has altered, destroyed, concealed, or removed any record, document, or thing required to be kept or maintained by this chapter with the purpose to impair its verity or availability in the department<6E>s investigation. The division shall refer to local law enforcement authorities any person whom the division believes has engaged in fraud, theft, embezzlement, or other criminal activity or when the division has cause to believe that fraud, theft, embezzlement, or other criminal activity has occurred.
(p) The division director or any officer or employee of the division and the condominium ombudsman or any employee of the Office of the Condominium Ombudsman may attend and observe any meeting of the board of administration or any unit owner meeting, including any meeting of a subcommittee or special committee, which is open to members of the association for the purpose of performing the duties of the division or the Office of the Condominium Ombudsman under this chapter.
(q) The division may:
1. Contract with agencies in this state or other jurisdictions to perform investigative functions; or
2. Accept grants-in-aid from any source.
(r) The division shall cooperate with similar agencies in other jurisdictions to establish uniform filing procedures and forms, public offering statements, advertising standards, and rules and common administrative practices.
(s) The division shall consider notice to a developer, bulk assignee, or bulk buyer to be complete when it is delivered to the address of the developer, bulk assignee, or bulk buyer currently on file with the division.
(t) In addition to its enforcement authority, the division may issue a notice to show cause, which must provide for a hearing, upon written request, in accordance with chapter 120.
(u) If the division receives a complaint regarding access to official records on the association<6F>s website or through an application that can be downloaded on a mobile device under s. 718.111(12)(g), the division may request access to the association<6F>s website or application and investigate. The division may adopt rules to carry out this paragraph.
(v) The division shall submit to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the chairs of the legislative appropriations committees an annual report that includes, but need not be limited to, the number of training programs provided for condominium association board members and unit owners, the number of complaints received by type, the number and percent of complaints acknowledged in writing within 30 days and the number and percent of investigations acted upon within 90 days in accordance with paragraph (n), and the number of investigations exceeding the 90-day requirement. The annual report must also include an evaluation of the division<6F>s core business processes and make recommendations for improvements, including statutory changes. After December 31, 2024, the division must include a list of the associations that have completed the structural integrity reserve study required under s. 718.112(2)(g). The report shall be submitted by September 30 following the end of the fiscal year.
(2)(a) Each condominium association that operates more than two units shall pay to the division an annual fee in the amount of $4 for each residential unit in condominiums operated by the association. If the fee is not paid by March 1, the association shall be assessed a penalty of 10 percent of the amount due, and the association will not have standing to maintain or defend any action in the courts of this state until the amount due, plus any penalty, is paid.
(b) All fees shall be deposited in the Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund as provided by law.
(c) On the certification form provided by the division, the directors of the association shall certify that each director of the association has completed the written certification and educational certificate requirements in 1s. 718.112(2)(d)4.b. This certification requirement does not apply to the directors of an association governing a timeshare condominium.
(d) Each condominium association must create and maintain an online account with the division, as required in subsection (3).
(3) On or before October 1, 2025, all condominium associations must create and maintain an online account with the division and provide information requested by the division in an electronic format determined by the division. The division shall adopt rules to implement this subsection. The division may require condominium associations to provide such information no more than once per year, except that the division may require condominium associations to update the contact information in paragraph (a) within 30 days after any change. The division shall provide a condominium association at least a 45-day notice of any requirement to provide any information after the condominium association initially creates an online account. The information that the division may require from condominium associations is limited to:
(a) Contact information for the association that includes:
1. Name of the association.
2. The physical address of the condominium property.
3. Mailing address and county of the association.
4. E-mail address and telephone number for the association.
5. Name and board title for each member of the association<6F>s board.
6. Name and contact information of the association<6F>s community association manager or community association management firm, if applicable.
7. The hyperlink or website address of the association<6F>s website, if applicable.
(b) Total number of buildings and for each building in the association:
1. Total number of stories, including both habitable and uninhabitable stories.
2. Total number of units.
3. Age of each building based on the certificate of occupancy.
4. Any construction commenced within the common elements within the calendar year.
(c) The association<6F>s assessments, including the:
1. Amount of assessment or special assessment by unit type, including reserves.
2. Purpose of the assessment or special assessment.
3. Name of the financial institution or institutions with which the association maintains accounts.
(d) A copy of any structural integrity reserve study and any associated materials requested by the department within 5 business days after such request, in a manner prescribed by the department.
History.<2E>s. 1, ch. 76-222; s. 1, ch. 77-174; s. 2, ch. 77-221; s. 4, ch. 78-323; ss. 4, 12, ch. 78-340; s. 32, ch. 79-4; s. 15, ch. 79-314; s. 1, ch. 81-28; ss. 1, 2, 3, ch. 81-54; s. 4, ch. 81-172; s. 6, ch. 81-185; s. 477, ch. 81-259; ss. 1, 4, ch. 82-46; s. 2, ch. 82-113; ss. 5, 7, ch. 82-199; s. 154, ch. 83-216; s. 16, ch. 84-368; s. 5, ch. 85-60; s. 8, ch. 86-175; s. 18, ch. 87-102; s. 16, ch. 91-103; s. 5, ch. 91-426; s. 12, ch. 92-49; s. 233, ch. 94-218; s. 299, ch. 96-410; s. 1774, ch. 97-102; s. 3, ch. 97-301; s. 221, ch. 98-200; s. 62, ch. 2000-302; s. 1891, ch. 2003-261; s. 21, ch. 2008-28; s. 4, ch. 2008-134; s. 48, ch. 2008-240; s. 90, ch. 2009-21; s. 17, ch. 2010-174; s. 13, ch. 2021-99; s. 22, ch. 2021-135; s. 10, ch. 2022-269; s. 119, ch. 2023-8; s. 22, ch. 2023-203; s. 21, ch. 2024-244; s. 16, ch. 2025-175.
1Note.<2E>Redesignated as s. 718.112(2)(d)5.b. by s. 8, ch. 2025-175.

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Patrick HAYES and Carmen Pacheco, Plaintiffs, v. AKAM ASSOCIATES, INC., Nazim Taipovic, The 350 East 62nd Street Condominium a/k/a 350 East 62nd Street Associates and Winfield Security Corporation, Defendants.
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Country of Origin: United States
Court Name: Supreme Court of New York, New York County
Primary Citation: No. 156457/2013, 2019 WL 4695713 (N.Y. Sup. Ct. Sep. 25, 2019)
Date of Decision: Wednesday, September 25, 2019
Judge Name: Robert D. Kalish, J.S.C.
Jurisdiction Level: New York
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Summary: In this case, plaintiffs sought recovery for property damage and for emotional distress and loss of companionship of their dog Toto, who died as a result of a fire in the building where plaintiffs resided. Plaintiffs were not home at the time of the fire. Upon their return, they learned their dog had died as a result of smoke inhalation. Plaintiffs found Toto<74>s body lying on the road, covered with a sheet. Plaintiffs alleged that their dog, who they considered a member of their family, had died as a consequence of the defendants<74> negligence in inspecting, maintaining, supervising, operating, and controlling the building. In its opinion, the court stated that there was a well-settled common law precedent that pets are personal property and for that reason, damages for emotional injury were not allowed when a companion animal dies. The court declined to follow the cases that considered loss of companionship in determining the value of a pet and dismissed the causes of action seeking damages for the emotional injuries the plaintiffs alleged were caused by the loss of their dog. Defendants' motion for summary judgment dismissing the complaint was granted.
Trial Order
Robert D. Kalish, J.S.C.
*1 In this action seeking damages for property damage, as well as damages for emotional distress and loss of companionship of a family pet, defendants Akam Associates, Inc. (Akam), Nazim Taipovic (Taipovic), The 350 East 62nd Street Condominium, and 350 East 62nd Street, Inc. s/h/a The 350 East 62nd Street Condominium a/k/a 350 East 62nd Street Associates (collectively, the Condo) together move for summary judgment dismissing the complaint as against them. Defendant Winfield Security Corporation (Winfield) also moves separately for summary judgment dismissing the complaint and all cross claims as against it.
Factual and Procedural Background
On July 16, 2012, a fire occurred in apartment 1A located at 350 East 62nd Street, New York, New York. The apartment is owned by plaintiff Carmen Pacheco (Pacheco) and her mother. Plaintiff Patrick Hayes (Hayes) is Pacheco's husband who also lives in the apartment. Defendants Akam and the Condo jointly managed and maintained the building. Defendant Taipovic1 is the **2 building's superintendent, and defendant Winfield provides security for the building. Non-party Cesar Peralta (Peralta), a Winfield employee, was providing security services for the building at the time of the fire.
Hayes and Pacheco were not home at the time of the fire, but upon their return, they learned that their 14-year-old dog, Toto,2 died as a result of the smoke condition from the fire. Toto was lying on the street under a white sheet when the plaintiffs approached their building. Hayes claims that Toto was a member of the family who went on vacations and to restaurants and football games.
Plaintiffs commenced this action on September 25, 2013 (see Moore affirmation, exhibit A). In their first cause of action, plaintiffs allege that defendants failed to inspect, maintain, supervise, operate or control the building allowing Toto to die, and they seek damages for the death of Toto. Plaintiffs' second cause of action seeks damages resulting from the emotional distress they suffered due to defendants' disregard of the fact that their apartment might be on fire, and that said negligence was the cause for the death of Toto. Plaintiffs' third cause of action also seeks damages for the emotional distress suffered by the death of Toto. Plaintiffs' fourth cause of action seeks damages for Taipovic, Akam, and Winfield's fraudulent acts of forging records and reports regarding the fire. Plaintiffs' fifth cause of action seeks damages for the loss of companionship of **3 Toto. Plaintiffs' sixth cause of action seeks damages for defendants' breach of a duty to plaintiffs to have properly trained personnel to handle the fire emergency. In their seventh cause of action, plaintiffs seek damages for defendants' failure to notify plaintiffs that their employees were not <20>fire trained and did not possessed [sic] the appropriate license.<2E> In their eighth cause of action, plaintiffs seek damages for the emotional distress they suffered when seeing Toto lying dead on the street under a white sheet. In their ninth and tenth causes of action, plaintiffs seek damages for the fact that Taipovic did side work during regular working hours, thereby breaching a duty to plaintiffs. In their eleventh cause of action, plaintiffs seek damages for the expenses they continually incur due to the loss of Toto's companionship. Plaintiffs' also assert, as styled, a second tenth cause of action (a <20>twelfth<74> cause of action) seeking damages for the fact that Winfield knew or should have known that Taipovic was doing side work and failed to report it to the Akam defendants, and that Taipovic's side work was a theft of services, and that such actions breached a duty to plaintiffs (See Moore affirmation, exhibit A).
*2 Issue was joined by the Akam defendants on October 16, 2013, and by defendant Winfield on October 22, 2013.
The Akam defendants now move for summary judgment dismissing the complaint on the ground that they are not liable for the fire and therefore are not responsible for any resulting damages. The Akam defendants argue that the fire was caused by plaintiffs placing clothing or other material on or too close to the light bulb in an overcrowded bedroom closet and then leaving the light on when they left the apartment. The Akam defendants argue that there is no proof of any defects in the electrical system or fixtures in the building, and that the building was safe and regularly inspected. Further, the Akam defendants argue that they did not commit fraud, and that **4 they acted with proper diligence and haste once the fire was detected. Finally, the Akam defendants argue that New York does not recognize a claim for emotional distress for the loss of a pet, but rather, that pets are considered personal property in the State of New York.
Winfield also moves for summary judgment dismissing the complaint on the ground that it did not owe a duty to the plaintiffs at the time of the fire. Winfield argues that, pursuant to its contract with the Condo, it was to provide security services to the Condo. Further, the language of the contract states that no other person is an intended third-party beneficiary under the agreement and that Winfield was not assuming a duty to protect any other persons or property. Therefore, according to Winfield, it owed no duty to safeguard plaintiffs from a fire or to insure plaintiffs' property, Toto, from harm. Moreover, Winfield argues that a security company does not have a common-law duty to protect the public from acts of third parties. Winfield also argues that it cannot be held liable for negligent training or hiring of security guards because Peralta's conduct did not cause plaintiffs' damages.
Winfield also argues that, even if Peralta altered the logs at the direction of Taipovic regarding the fire, such act would fail to satisfy any element of a cause of action for fraud. Winfield further argues that plaintiffs have not alleged how such an act, upon which they relied, caused them injury. Winfield argues that plaintiffs have not alleged how their reliance on an alleged after-the-fact altering of a log caused them injury.
Finally, Winfield argues that plaintiffs' claims for wrongful death, loss of companionship, and emotional distress as to Toto must be dismissed because pets are treated as property and no such causes of actions exist in New York.
In opposition to the motions, plaintiffs argue the Akam defendants have failed to **5 demonstrate prima facie entitlement to summary judgment. In support of that argument, plaintiffs contend that defendants had a common law duty to maintain the property in a reasonably safe condition, which they did not.
Plaintiffs submit the affidavit of nonparty Juan Erik Hernandez (Hernandez), who testified that he worked as a cook in the basement kitchen of Neely's restaurant located in the building (see Lugo affirmation, exhibit 14). At about 10:00 a.m., Hernandez smelled smoke in the basement kitchen and searched for its source. He then sent a co-worker, Alberto, to get Taipovic and bring him downstairs. When Taipovic did not appear after 10 minutes, Hernandez went upstairs and found Taipovic in the building lobby. Taipovic then accompanied Hernandez downstairs, looked inside a ceiling duct with a flashlight, and said that he saw smoke but did not know its origin. Hernandez states that Taipovic thought the smoke was coming from a cable or short. Taipovic told Hernandez to call the <20>company<6E> and have them check the cable. Hernandez stated that, while he continued to look for smoke, the smell became stronger. He then spoke with Peralta, the security guard, who told Hernandez that he also smelled smoke and called Taipovic. Taipovic then walked outside the building and again told Hernandez to call the <20>company.<2E> Hernandez then had a coworker, Cipriano, get Taipovic, but Taipovic told him they were crazy and to stop bothering him.
*3 Hernandez, and the workers of Neelys, became increasingly concerned about the smoke odor and again sought out Taipovic. Hernandez saw Taipovic in the lobby of the building opening the door to the first-floor apartment. According to Hernandez, when Taipovic opened the door to the apartment, black smoke came out. Taipovic immediately closed the apartment door and yelled at Hernandez to get out of the building and leave. Hernandez then saw firefighters enter apartment 1A and saw them carry out a small dog. A firefighter tried but failed to resuscitate the dog.
**6 Plaintiffs also rely on the affidavit of nonparty Lulu Silva (Silva), a building resident, who arrived at the building at about 10:30 a.m. (see Lugo affirmation, exhibit 14). When she arrived, she mentioned to Peralta that the building smelled of smoke. Peralta told her he also smelled smoke and had spoken to Taipovic.
As she walked to the elevators, she saw Taipovic and told him that she smelled smoke. Silva claims that Taipovic ignored her requests to investigate the smoke and entered the elevator. A while later, Silva saw Taipovic running down the hallway yelling that there was a fire on the first floor. Silva saw Taipovic open the door to the first-floor apartment and then observed smoke coming out of the apartment. Silva then called 911 from the building's front desk phone. According to Silva, Peralta requested that she make the 911 call because he was too nervous.
Silva also observed firefighters take a dog out of 1A and attempt to resuscitate it.
Plaintiffs also rely on the deposition testimony of Peralta (see Lugo affirmation, exhibit 4). At his deposition, Peralta testified that, when the men from the restaurant told him that they smelled smoke, he called Taipovic. He then saw Taipovic walking around outside and going to buy coffee. When the men from the restaurant returned to say they still smelled smoke, Peralta again called Taipovic. Peralta claims that he insisted Taipovic call the fire department, but Taipovic told him that the smoke was coming from electrical wires from the restaurant, which was the responsibility of the restaurant. At this time, Peralta did not smell smoke.
Peralta testified that Silva then told Peralta that there was smoke in the elevator and spoke to Taipovic who was now in the lobby. At some point, Peralta saw Taipovic open the door to apartment 1A and saw smoke coming out of that apartment. The fire department was then called.
Peralta testified that Toto was a quiet dog, but that on the day of the fire, he was barking. **7 Peralta also testified that Taipovic told him not to tell plaintiffs that Toto was barking. Peralta also testified that Taipovic told him, in the incident report, not to mention how many times the workers from the restaurant came to complain about smelling smoke.
Plaintiffs also rely on the deposition testimony of nonparty witness Andy Cabrera (Cabrera) (see Lugo affirmation, exhibit I). At his deposition, Cabrera testified that, at the time of the fire, he was the handyman/porter for the Building, and his supervisor was Taipovic. Cabrera testified that Taipovic did side work painting and plumbing for tenants while also working as the superintendent of the Building. On the day of the fire, Cabrera was working in the laundry room on the sixth floor. Cabrera smelled smoke but thought it was coming from the restaurant and ignored it. Cabrera then got a call from Peralta telling him that there was a fire on the first floor of the building. When he arrived on the first floor, he saw lots of smoke.
Plaintiffs also rely on the deposition testimony of Taipovic (see Lugo affirmation exhibit 6). At his deposition, Taipovic testified that, at the time he got the first call from Peralta, he was in apartment 2-0. He then went directly to the lobby and smelled smoke coming from the restaurant. He then searched the building looking for the fire. Taipovic stated that the tenant in 2-F told him there was smoke in the hallway and behind the building. He went into 2-F and looked out the window and saw smoke coming from apartment 1 A. Taipovic then got the emergency key for 1A, opened the door, saw the smoke, and called the fire department. Taipovic stated that he only received one call from Peralta. Taipovic also testified that he did not tell Peralta or Cabrera what to put in their reports.
*4 Based on this evidence, plaintiffs argue that Taipovic attempted to cover up his delay in calling the fire department and failing to respond timely to the fire emergency. Plaintiffs argue **8 that, even though there were complaints of smoke, it took Taipovic and Peralta 45-55 minutes to find the fire and call the fire department. Plaintiffs argue that their property damage and the loss of Toto could have been prevented had Taipovic and Peralta acted sooner.
Plaintiffs also argue that Winfield owed them a duty of care. Plaintiffs refer to a contract rider between Winfield and the Condo which states that plaintiffs were intended third-party beneficiaries of that contract (see Lugo affirmation, exhibit 8). Plaintiffs refer to the following rider language: <20>[Winfield] shall furnish unarmed uniformed protection services for the proper protection of the Premises and Persons<6E> (see Lugo affirmation, exhibit 8). Plaintiffs argue that this language clearly establishes that it was the intent of Winfield and the Condo to have Winfield protect the tenants. Plaintiffs argue further that the <20>Post Instructions<6E> for the position for which Peralta was employed (see Lugo affirmation, exhibit 9), clearly state that, as a Winfield security officer, it was Peralta's responsibility to detect, deter, and report criminal activity, fire hazards, and safety hazards at the Condo. Further, the <20>Post Instructions<6E> provided a detailed procedure for security guards to follow during a fire emergency that, plaintiffs argue, Peralta failed to follow.
Plaintiffs argue that Winfield failed to submit any evidence to establish that Peralta responded in a proper and timely manner to the fire emergency in their apartment. Plaintiffs argue that Peralta's negligence created and/or exacerbated the fire condition which caused their damages. Further, plaintiffs argue that Winfield owed them a duty to provide fire-trained personnel.
Plaintiffs argue that they have a valid claim of fraud against all the defendants because there is evidence that Taipovic and Peralta failed to enter the information about the fire in the logs properly. Plaintiffs claim that Taipovic and Peralta intentionally failed to document that the Neely's employees complained of smoke on three separate occasions. Instead, the logs indicate **9 that the Neely's employees complained of smoke on one occasion.
Plaintiffs argue that they have a valid claim for wrongful death, loss of companionship, and emotional distress regarding their loss of Toto. In support of this argument, plaintiffs argue that, while it is not the standard law in New York to permit such a recovery for the loss of a pet, other jurisdictions such as California, Texas, Hawaii, Alaska, and Florida have allowed it.
Finally, plaintiffs argue that there are issues of fact regarding whether Taipovic was performing side jobs as the fire burned, thereby allowing the fire to cause additional damages and the loss of Toto.
Discussion
<EFBFBD>To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor [CPLR 3212, subd. (b)], and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact [CPLR 3212, subd (b)]<5D> (Zuckerman v City of New York, 49 NY2d 557, 562 [1980] [internal quotation marks omitted], quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). If the movant fails to establish entitlement to summary judgment as a matter of law, summary judgment must be denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Winfield's Motion for Summary Judgment
*5 Based upon the papers submitted and the May 14, 2019 oral argument (discussed further infra), the court finds that Winfield has established prima facie entitlement to summary judgment **10 as a matter of law by submitting its contract with the Condo which expressly states that no other person or entity is intended to be a third-party beneficiary of the agreement. Moreover, Winfield has established that the facts of this case do not fall into the three situations in which a party who enters into a contract for services may be liable to third parties: (1) Winfield did not launch a force or instrument of harm, (2) the plaintiffs did not detrimentally rely on the continued performance of Winfield's duties, and (3) Winfield did not entirely displace the Condo's duty to maintain the premises in a safe condition. In opposition, plaintiffs fail to raise an issue of fact precluding summary judgment in Winfield's favor.
Generally, a nonparty to a contract cannot impose tort liability upon a party to a contract for breach thereof (see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Moch Co. v Rensselaer Water Co., 247 NY 160, 168-169 [1928]). However, there are three exceptions where the contracting party may be liable to a nonparty to the contract for the contracting party's performance of the contractual obligations: (1) where the contracting party launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other contracting party's duty to maintain the premises safely or securely (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]; Church, 99 NY2d at 111-112; Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 140 [2002]).
Here, the express language of the agreement between Winfield and the Condo indicates that no other person is intended to be a third-party beneficiary to the contract (see Walton v Mercy Coll., 93 AD3d 460, 461 [1st Dept 2012] [dismissal of the complaint as against security provider was proper where the contract to provide security services indicated it owned no duty to third **11 parties]). Paragraph 7 (a) of the contract states, <20>[n]othing else in the contract withstanding, the security services hereunder are only being provided to the Customer and its employees, and no other person or entities<65> shall be third-party beneficiaries to the agreement (see Lugo affirmation, exhibit 8). Nevertheless, plaintiffs argue that a rider to the service agreement which states that Winfield <20>shall furnish unarmed uniformed protection services for the proper protection of the Premises and Persons<6E> (see Lugo affirmation, exhibit 8) unequivocally establishes that they are third-party beneficiaries to the service agreement. Reading paragraph 7 (a) of the contract together with the rider, the court finds that Winfield and the Condo agreed that Winfield would provide security services for the Condo and its employees, and not third-party beneficiaries such as tenants or guests of the building (see Walton, 93 AD3d at 461; Dabbs v Aron Sec. Inc., 12 AD3d 396, 397 [2d Dept 2004] [holding that injured students were not third-party beneficiaries of contract between security firm and school]; Murshed v New York Hotel Trades Council & Hotel Assn. of N.Y. City Health Ctr., 71 AD3d 578, 579 [1st Dept 2010]). As such, Winfield has established, prima facie, it owed no duty to plaintiffs.
Moreover, there is no evidence that Peralta caused or exacerbated the fire that caused the plaintiffs damages. Plaintiffs claim that Peralta failed to respond timely and properly to the smell of smoke and acted improperly when he called Taipovic rather than 911 upon receiving complaints. Nevertheless, the Appellate Division, First Department has rejected such an argument in Rahim v Sottile Sec Co., (32 AD3d 77 [1st Dept 2006]). In Rahim, a security guard effectively abandoned his post at a Duane Reade by leaving from work early, and thereafter, an assailant entered the Duane Reade and assaulted the plaintiff store manager. In dismissing plaintiff's claims against the security company that had supplied the security guard to Duane Reade, the Court **12 indicated that, however negligently the security guard may have performed his job, he did not launch the force or instrument of harm that effected the assault (id. at 81). The Court held that the <20>force or instrument of harm<72> was the assailant, who acted independently and without the security guard's knowledge (id). The Court stated that, while the security guard may have been negligent in failing to discover the assailant before she acted, the dangerous condition represented by her presence was not created or exacerbated by the security guard (id.). The Court, citing Moch Co. v Rensselaer Water Co., (247 NY 160, 168 [1928]), held that the security guard's inaction was at most a refusal to become an instrument for good, and such inaction provides no basis for holding his employer liable to a person with whom it was not in contractual privity (id.). Here, similarly, Peralta did not start the fire, nor did he affirmatively do anything to exacerbate the fire.
*6 Moreover, even if there were evidence that Peralta's negligence in the performance of his duties contributed to the exacerbation of the fire, Winfield would still be entitled to dismissal of the complaint given the absence of any evidence that it owned plaintiffs a duty of care (see Williams v Stevenson Commons Assoc, 31 AD3d 289, 290 [1st Dept 2006]).
Further, there is no evidence that plaintiffs relied upon the contract between the Condo and Winfield as, by their own admission, they were not aware of the provisions of the contract (see Aiello v Burns Intl. Sec. Servs. Corp., 110 AD3d 234 [1st Dept 2013]). At his deposition, Hayes testified that he was not sure what Peralta's duties were at the building (see Lugo affirmation, exhibit D). At her deposition, Pacheco testified that she was unaware of any of Peralta's duties with respect to fire safety and procedures (see Lugo affirmation, exhibit F).
Finally, there is no evidence that Winfield entirely displaced the Condo's duty to maintain the premises in a safe condition.
**13 Plaintiffs' claim for negligent hiring and training with regard to Winfield's hiring and training of Peralta must also be dismissed because, based on the foregoing analysis, Winfield owed no duty to plaintiffs (see Doe v Madison Third Bldg. Cos., LLC, 121 AD3d 631, 632 [1st Dept 2014] [security company cannot be liable for negligent hiring where it owed no duty to plaintiff]).
Winfield has also established prima facie entitlement to dismissal of plaintiffs' claim that Peralta fraudulently misrepresented material information in the logs. The elements of a fraud cause of action consist of: a misrepresentation or material omission of fact; that was false, and known to be false by defendant; made for purpose of inducing other party to rely upon it; justifiable reliance of the other party on the misrepresentation or material omission; and injury (see Pasternack v Lab. Corp. of Am. Holdings, 27 NY3d 817, 827 [2016]). Here, plaintiffs have failed to establish how they relied upon the alleged fraudulent log entries or how they were injured by those entries. To succeed on a claim of fraud, plaintiffs must demonstrate that they relied upon the alleged fraudulent statements, and in the absence of such evidence the claim must be dismissed (id. at 829).
Accordingly, Winfield's motion for summary judgment dismissing the complaint must be granted. Further, there being no opposition submitted to the motion of Winfield by the Akam Defendants, the cross claim of the Akam defendants against Winfield for common-law indemnification and contribution is also dismissed, and the action is dismissed in its entirety with prejudice as against Winfield.
The Akam Defendants' Motion for Summary Judgment
With respect to plaintiffs' first, second, third, fifth, eighth, and eleventh causes of actions, plaintiffs seek damages under the theories of wrongful death, loss of companionship, and emotional distress for the loss of Toto.
**14 It is well settled in the State of New York that pets are personal property and the loss of a dog by reason of negligence will not permit the animal's owners to recover for resultant emotional injury (see Schrage v Hatzlacha Cab Corp., 13 AD3d 150, 150 [1st Dept 2004]; Johnson v Douglas, 289 AD2d 202 [2d Dept 2001]; Jason v Parks, 224 AD2d 494 [2d Dept 1996]).
*7 Plaintiffs, who are attorneys, nevertheless argue that this court should rely on decisions from other states, including California, Texas, Hawaii, Alaska and Florida, and two New York civil court cases, and find contrary to the prevailing common law that they are entitled to recovery. As this court stated at oral argument, while other jurisdictions might recognize such claims, there are no New York Appellate Division decisions permitting the relief sought by plaintiffs (see transcript, page 37).
Plaintiffs maintain that this court should rely upon Brousseau v Rosenthal (110 Misc2d 1054 [Civ Ct, NY County 1980, Taylor, J.]), in which a civil court judge awarded the plaintiff $550.00 for the lost value of a dog who died while at a pet boarding facility. Notably, the court did not award plaintiff any damages for emotional distress. The other New York case relied upon by plaintiffs is Mercurio v Weber, (2003 NY Slip Op 51036 [U] [Nassau Dist Ct, 2003, Fairgrieve, J.]). In Mercurio, the Nassau County District Court awarded the plaintiff the cost of replacing one of her dogs, who was killed by a dog groomer, and the veterinary costs associated with her second dog, who was also injured by the dog groomer. The Mercurio court awarded plaintiff the purchase price of the dog, $675.00, together with the cost of housebreaking. When determining the value of the companionship the dog provided plaintiff, the court stated, <20>[p]ricing companionship is inherently difficult, but since plaintiff has presented us with a figure that reasonably approximates the cost of replacing Dexter ($1,513.58), the court accepts that as the fair market price of Dexter. **15 Even though it is substantially higher than what plaintiff paid for Dexter, the court presumes that it encompasses the loss of companionship as well<6C> (id. at *5 [emphasis added]).
Initially, the court notes that both Brousseau and Mercurio are of no precedential value on the law and of little persuasive value on the facts. Neither case has been cited by any Supreme Court for the proposition that a pet owner may properly recover damages, as claimed in the instant case, for wrongful death, lack of companionship, or emotional distress. While the cases cited seem to consider the value of the loss of companionship in setting a value for a pet, this court declines to follow them. This court will follow the reasoning set forth in Schrage (13 AD3d at 150), namely, the well-settled proposition that <20>the loss of a dog by reason of negligence will not support claims by the animal's owners to recover for their emotional injury<72> (id; Feger v Warwick Animal Shelter, 29 AD3d 515 [2d Dept 2006]). As such, to the extent that plaintiffs seek damages for emotional injuries due to the loss of Toto, their second, third, fifth, eighth, and eleventh causes of action are dismissed.
As to plaintiffs' fraud claim in their fourth cause of action, the court finds that the Akam defendants have established prima facie entitlement to the dismissal of plaintiffs' claim that Peralta fraudulently misrepresented material information in the logs. As previously discussed, the elements of a fraud cause of action consist of: a misrepresentation or material omission of fact; that was false, and known to be false by defendant; made for purpose of inducing other party to rely upon it; justifiable reliance of the other party on the misrepresentation or material omission; and injury (see Pasternack v Lab. Corp. of Am. Holdings, 27 NY3d 817, 827 [2016]). Here, plaintiffs have failed to establish how they relied upon the alleged fraudulent logs or how they were injured by those entries. To succeed on a claim of fraud, plaintiffs must demonstrate that **16 they relied upon the statements, and in the absence of such evidence the claim must be dismissed (id. at 829).
*8 With respect to plaintiffs' seventh cause of action seeking damages for the Akam defendants' failure to notify them that their personnel was not fire trained or did not have the <20>appropriate license,<2C> the Akam defendants have demonstrated prima facie entitlement to summary judgment by submitting the deposition testimony of Michael Berenson, Akam's president, who testified that there is no requirement that a building superintendent be fire trained or required to attend fire training instruction (see Moore affirmation, exhibit H). Nor, according to Berenson, is a superintendent required to have any type of related license. Rather, the superintendent was required to locate the source of any smoke and call 911, which Taipovic did. In opposition, plaintiffs do not address any of the Akam defendants' arguments regarding a building superintendent's fire training requirements or licensing. As such, the court finds that the seventh cause of action must be dismissed.
As to plaintiffs' first cause of action alleging that the Akam defendants failed to maintain, operate or inspect the building properly, resulting in the fire, and as to plaintiffs' sixth, ninth, tenth, and twelfth causes of actions asserting that Taipovic negligently delayed looking into the source of the fire because he was improperly trained or because he was performing side work, the Akam defendants argue that Taipovic's actions are irrelevant because the fire was caused by plaintiffs placing clothing either too close or on top of a closet light bulb. Based upon this argument, the court finds that the Akam defendants have failed to sustain their burden of establishing prima facie entitlement to summary judgment. As the court noted at the oral argument, this contention was raised at the deposition of Michael Berenson, Akam's president, who testified that he had heard **17 that the fire was caused by clothing stacked high in the closet near, the closet light (see transcript page 7; Brill affirmation exhibit H). While hearsay statements can be used to deny a motion for summary judgment, they cannot form the basis for the granting of summary judgment (see Borough Hall-Oxford Tobacco Corp. v Central Office Alarm Co., 35 AD2d 523 [2d Dept 1970]).
Further, the fire department's report states that the fire was caused by electrical wiring in the apartment's closet (see Lugo affirmation, exhibit 7). While the Akam defendants maintain that plaintiffs are responsible for such wiring, they have failed to establish affirmatively by proof in admissible form who is responsible for the electrical wiring in plaintiffs' closet, or that the Akam defendants are not responsible (see oral argument transcript page 9-1,0). Nor have the Akam defendants demonstrated that they are not responsible for any of the electrical wiring in plaintiffs' apartment. Further, there is evidence in the record that Taipovic performed electrical work in the subject apartment in the months preceding the accident (see Lugo affirmation, exhibit 5 at 16-19 [indication by Cabrera that Taipovic worked in apartment 1A on an <20>electrical box<6F>]). Contrary to the Akam defendants' argument, the court finds that there is no definitive proof regarding the proximate cause of the fire or what the Akam defendants' responsibilities were as to the electrical wiring in the apartment, whether they had notice of a dangerous condition by virtue of the work done by Taipovic in the apartment, or whether said work caused or created a dangerous condition that proximately caused this fire (see oral argument transcript at 5-12).
Likewise, the Akam defendants have not established that Taipovic was not negligent in his alleged delay in calling 911. Plaintiffs have submitted evidence which indicates that Taipovic was notified on three occasions, by the Neely's employees, that they smelled smoke. Further, plaintiff submitted the Silva affidavit indicating that she had also informed Taipovic of the smoke smell. **18 Further, plaintiffs have submitted evidence to suggest that Taipovic was doing side work at the time the fire started which Taipovic prioritized over responding to the smoke complaints. Plaintiffs have also submitted evidence suggesting that it took Taipovic 45-60 minutes to locate the source of the smoke and to call 911.
*9 Based upon the foregoing, the court finds that there are questions of fact and credibility regarding whether the Akam defendants caused or created or had actual or constructive notice of a dangerous condition that was the proximate cause of the fire and whether Taipovic acted reasonably under the circumstances on the day of the accident. As such, the Akam defendants have not established prima facie entitlement to summary judgment dismissing the first, sixth, ninth, tenth, or twelfth causes of action.
**19 CONCLUSION
Accordingly, it is
ORDERED that defendant Winfield Security Corporations' motion for summary judgment dismissing the complaint and the cross claim of the Akam defendants is granted in its entirety, and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Akam defendants' motion for summary judgment dismissing the complaint is granted in part with respect to the second, third, fourth, fifth, seventh, eighth and eleventh causes of action, and the motion is otherwise denied; and it is further
ORDERED that movants shall, within 10 days of the NYSCEF filing date of the decision and order on this motion, each serve a copy of this order with notice of entry on all parties and on the clerk, who is directed to enter judgment accordingly.
DATED: September 25, 2019
ENTER:
<<signature>>
J.S.C.
Footnotes
1 Akam, the Condo, and Taipovic are collectively referred to as the <20>Akam defendants.<2E>
2 Pacheco adopted Toto in 1999 from the American Kennel located on Lexington Avenue, New York, New York, for a cost of approximately $1,200.00. Plaintiffs' complaint is styled as being brought by them <20>individually and as guardians of TOTOLOVE HAYES (deceased),<2C> who is referred to in the complaint as <20>Toto.<2E> As a non-human does not have standing to bring an action or be a party to an action, nor be a member of a guardian/ward legal relationship of any type recognized in the State of New York, that portion of the caption is stricken and shall be amended accordingly. (See generally Nonhuman Rights Project, Inc. ex rel Tommy v Lavery, 152 AD3d 73 [1st Dept 2017].)