Claims Over Tortoise Deaths Reinstated in NY


     ALBANY, N.Y. (CN) — A New York appeals court revived a liability claim linking the deaths of nearly two dozen tortoises to the faulty installation of a thermostat.
     The tortoises wintered in a heated building on an estate in Sullivan County, N.Y., known as Philwold, where alpacas, exotic birds and a camel also lived.
     Wealthy neighbors derided it as a zoo, according to news reports, but owner Stuart Salenger purchased the estate with the idea of creating a working farm that could double as an agritourism destination.
     Salenger sued Inergy LP and other energy firms after they were called in to service the gas-fired, thermostat-controlled heating system that kept the estate’s “tortoise house” warm.
     When Inergy employee Gary McBride inspected the system, he found many of the thermostats infested with roaches, according to court papers, and replaced a broken one with a new thermostat.
     By the next day, though, the temperature in the tortoise house reached 110 degrees, killing 23 tortoises and injuring others.
     Salenger alleged that Inergy and McBride were to blame because the thermostat malfunctioned and overheated the building.
     In January 2015, though, the Sullivan County Supreme Court found for the defendants and dismissed the complaint, saying the theory advanced by Salenger’s expert that improper installation of the thermostat caused its malfunction was “illogical.”
     Salenger appealed, and the New York Supreme Court Appellate Division’s Third Department in Albany reversed the lower court on Thursday.
     Writing for the five-judge panel, Justice William McCarthy said the defendants “failed to put forth prima facie evidence establishing that there were not material issues of fact as to whether their negligent installation of the thermostat caused its malfunction.”
     What evidence the defendants offered supported their conclusion that cockroach infestation caused the overheating, McCarthy wrote, but the evidence also raised questions about whether negligent installation was to blame.
     McCarthy pointed to testimony from McBride that he mounted the thermostat using three screws, rather than the two provided in the installation kit. The third screw was also a different size than the other two.
     The judge also noted that Salenger’s expert, Igor Paul, a longtime mechanical engineering professor at the Massachusetts Institute of Technology, suggested that the presence of the third screw interrupted the internal mechanisms of the thermostat, allowing the heater to continue to run.
     “Viewing this evidence in the light most favorable to plaintiffs, defendants’ submissions failed to eliminate all material issues of fact regarding the theory that improper installation, based on mounting the thermostat with a third unintended screw, caused the thermostat’s malfunction,” McCarthy wrote. “Accordingly, summary judgment should have been denied.”
     Justices John Lahtinen, Elizabeth Garry, Robert Rose and Sharon Aarons concurred.
     Salenger is described in news reports as a private investor from New York City with Sullivan County roots who purchased his estate in 2004. The Times Herald-Record in Middletown says the estate is in a “secluded, picturesque” area near the Neversink River “where the wealthy own large tracts of land.”
     Salenger’s Lodge at Philwold in Forestburgh, about a half hour northwest of Middletown, is listed on the website of The Bed & Breakfast Association of Sullivan County as offering 16 rooms, a private lake, panoramic views of the Catskill Mountains and an exotic animal farm.
     The Sullivan County Democrat reported that some of Salenger’s animals came from the Catskill Game Farm, a long-running tourist attraction that closed in 2006.

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