| Strnad v Garvin |
| 2009 NY Slip Op 05818 [64 AD3d 1230] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| Tina Strnad, Respondent, v Paul J. Garvin, Appellant. (Action No.1.) Verizon New York, Inc., Respondent, v Paul J. Garvin, Appellant, et al., Defendant.(Action No. 2.) |
—[*1] Michalak & Dobson, Williamsville (Robert W. Michalak of counsel), forplaintiff-respondent Tina Strnad. Cosgrove Law Firm, Buffalo (James C. Cosgrove of counsel), for plaintiff-respondentVerizon New York, Inc.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredSeptember 5, 2008 in actions for property damage. The order denied the motion of defendantPaul J. Garvin for summary judgment in action Nos. 1 and 2.
It is hereby ordered that the order so appealed from is reversed on the law without costs, themotion is granted and the complaint in action No. 1 and the complaint in action No. 2 againstdefendant Paul J. Garvin are dismissed.
Memorandum: Plaintiffs commenced these actions seeking damages sustained as the resultof a fire that occurred on property owned by Paul J. Garvin, the defendant in action No. 1 and adefendant in action No. 2 (defendant). The plaintiff in action No. 1 owned property in proximityto defendant's property, and the plaintiff in action No. 2 owned aerial cables adjacent to theproperty owned by defendant. We conclude that Supreme Court erred in denying the motion ofdefendant for summary judgment dismissing the complaint in action No. 1, and for summaryjudgment dismissing the complaint in action No. 2 against him. In support of the motion,defendant submitted an expert's affidavit and report, the statement of a tenant who had beensmoking in the building prior to the fire, and a Sheriff's office memorandum. Defendant therebymet his initial burden of establishing that his acts or omissions did not cause the fire but, [*2]rather, that the tenant's careless smoking caused the fire (see Delgado v New York City Hous.Auth., 51 AD3d 570, 571 [2008], lv denied 11 NY3d 706 [2008]; see also Cataract Metal Finishing, Inc. vCity of Niagara Falls, 31 AD3d 1129, 1130 [2006]). Although plaintiffs raised an issueof fact whether the smoke detectors in the building were inoperable at the time of the fire, wenevertheless conclude that summary judgment is appropriate because plaintiffs failed to raise atriable issue of fact whether the alleged absence of operable smoke detectors was a substantialfactor in causing the fire to spread and thus to damage their properties (see State Farm Ins. Co. v Nichols, 34AD3d 994, 996 [2006]).
All concur except Fahey and Green, JJ., who dissent and vote to affirm in the followingmemorandum.
Fahey and Green, JJ. (dissenting). We respectfully dissent and would affirm the orderdenying the motion of Paul J. Garvin, the defendant in action No. 1 and a defendant in action No.2 (defendant), for summary judgment dismissing the complaint in action No. 1 and the complaintin action No. 2 against him. Although we agree with the majority that there is no dispute thatdefendant is not responsible for starting the fire, we cannot agree that his submissions insupport of the motion establish as a matter of law that he is not responsible for the spreadof the fire and the ensuing damage to the property of plaintiffs adjacent to the property owned bydefendant.
Here, the Sheriff's office memorandum submitted in support of the motion establishes thatthe fire smoldered for at least five hours before it combusted and spread to other areas of theproperty owned by defendant. Defendant submitted no evidence establishing that the smokedetectors installed at his property were operational at the time of the fire. Moreover, the affidavitof defendant's expert did not state either that the smoldering fire would not have emitted enoughsmoke to trigger the smoke detectors installed at defendant's property, thus alerting the tworesidents of the apartment building of the fire, or that the alleged absence of operational smokedetectors could not have been a substantial factor in causing the fire to spread to the adjacentproperty of plaintiffs. Consequently, we respectfully disagree with the majority that defendantmet his initial burden of establishing that he was not negligent (cf. Delgado v New York City Hous.Auth., 51 AD3d 570, 571 [2008], lv denied 11 NY3d 706 [2008]). Moreover,we conclude that the submissions by defendant in support of the motion are insufficient toestablish as a matter of law that any negligence on his part was not a proximate cause of thespread of the fire (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980],rearg denied 52 NY2d 784 [1980]; see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Indeed, we note that the affidavit of defendant's expert didnot address that issue.
Even assuming, arguendo, that defendant met his initial burden on the motion, we furtherconclude that plaintiffs raised an issue of fact whether defendant was responsible for the spreadof the fire. The police report submitted by plaintiff Verizon New York, Inc. in opposition to themotion indicates that no smoke alarm sounded at defendant's property and that two tenants ofthat building were present at the time of the fire. In our view, because the losses for whichplaintiffs seek recovery were the result of a fire that smoldered for several hours beforedetection, and because defendant's property was occupied at the time of the fire, plaintiffs raisedan issue of fact whether the absence of devices sufficient to warn those tenants or passersby ofthe fire allowed the fire to spread from defendant's property to the adjacent property of plaintiffs.
Finally, we respectfully conclude that the majority mistakenly relies on State Farm Ins. Co. v Nichols (34AD3d 994 [2006]) inasmuch as the facts of that case are distinguishable from those herein.Unlike the fire in this case, the fire at issue in State Farm was a fast-moving blaze thatwas "incendiary in origin" and was detected soon after it was started (id. at 996).Moreover, the spread of the fire from the building in which it originated to the interior of theadjacent building owned by the plaintiff's insured was caused by an unsecured accelerant storednext to the building owned by the plaintiff's insured rather than by the failure of any alarm in thebuilding of [*3]origin (id. at 996-997).Present—Scudder, P.J., Fahey, Peradotto, Carni and Green, JJ.