| Andrews v New York City Hous. Auth. |
| 2009 NY Slip Op 07213 [66 AD3d 619] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Brenda Andrews et al., Respondents, v New York CityHousing Authority, Appellant. |
—[*1] Shandell, Blitz, Blitz & Ashley, LLP, New York, N.Y. (Richard E. Shandell of counsel), forrespondents.
In an action to recover damages for personal injuries and wrongful death, etc., the defendantappeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated March 18, 2008,which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On April 30, 2003 the plaintiff's decedent was killed in an apartment fire. Thereafter, thedecedent's mother Brenda Andrews, as administrator of the decedent's estate, on behalf of herother two minor sons Nathan Andrews, Jr., and Jonathan Andrews, and individually, along withthe decedent's father Nathan Andrews, individually (hereinafter collectively the plaintiffs),commenced this action against the New York City Housing Authority, which managed theapartment building where the fire occurred. The plaintiffs alleged that the fire was caused by thedefendant's negligence in maintaining the apartment. The defendant moved for summaryjudgment dismissing the complaint and the Supreme Court denied its motion, finding that theplaintiffs raised a triable issue of fact as to the cause of the fire. The defendant appeals, and wereverse.
The defendant demonstrated its prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, a fire and incident report, and the deposition testimony of the investigatingfire marshal (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]; Butler-Francis v New York City Hous. Auth., 38 AD3d 433[2007]; Delgado v New York CityHous. Auth., 51 AD3d 570 [2008]; Mittendorf v Brooklyn Union Gas Co., 195AD2d 449 [1993]). The fire marshal determined that the cause of the fire was an electrical cordthat ignited combustible material. The fire marshal also determined that the nearby outlet andreceptacles were not the cause of the fire.
In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d at 562). The plaintiffs' fire investigative expert asserted that the fire[*2]originated from an electrical fault within the outlet, but heprovided no factual support for such conclusion. The plaintiffs' expert also criticized the firemarshal's testimony, but did not indicate how any alleged "shortcomings" affected the firemarshal's determination as to the cause of the fire. Mere conclusions, speculation, andunsupported allegations are insufficient to defeat a motion for summary judgment (see Delgado v New York City Hous.Auth., 51 AD3d 570 [2008]; Butler-Francis v New York City Hous. Auth., 38 AD3d 433[2007]; Castro v Delta Intl. Mach. Corp., 309 AD2d 827 [2003]; Levitt v County ofSuffolk, 145 AD2d 414 [1988]; cf. Speller v Sears, Roebuck & Co., 100 NY2d 38,44 [2003]). Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint.
The plaintiffs' remaining contention is without merit. Miller, J.P., Leventhal, Chambers andAustin, JJ., concur.