| Pierre-Louis v DeLonghi Am., Inc. |
| 2009 NY Slip Op 07608 [66 AD3d 857] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Marie Pierre-Louis, Respondent, v DeLonghi America,Inc., et al., Respondents, and Antoneen Darden et al., Appellants. (Action No. 1.) TowerInsurance Company of New York, as Subrogee of Antoneen Darden, Plaintiff, v DeLonghiAmerica, Inc., et al., Defendants. (Action No. 2.) Allstate Insurance Company, as Subrogee ofRick E. Britton and Another, Plaintiff, v Antoneen Darden et al., Defendants. (And a Third-PartyAction.) (Action No. 3.) |
—[*1] Solomon & Associates, P.C., Staten Island, N.Y. (Robert A. Solomon of counsel), forplaintiff-respondent in action No. 1. Pino & Associates, LLP, White Plains, N.Y. (Thomas E. Healy of counsel), fordefendants-respondents.
In an action, inter alia, to recover damages for wrongful death and personal injuries (actionNo. 1), and two subrogation actions to recover insurance benefits paid (action Nos. 2 and 3),Antoneen Darden-McCall, sued herein as Antoneen Darden and Antoneen McCall, MarquesMcCall, also known as Marcus McCall, and Matthew McCall, appeal from an order of theSupreme Court, Kings County (Kramer, J.), dated December 17, 2007, as amended by an orderof the same court dated March 14, 2008, which denied that branch of the motion of AntoneenDarden-McCall, sued herein as Antoneen Darden and Antoneen McCall, and Marques McCall,also known as Marcus McCall, which was for summary judgment dismissing the complaint andall cross claims insofar as asserted against them in action No. 1.
Ordered that the appeal by Matthew McCall is dismissed, without costs or disbursements, ashe is not aggrieved by the order appealed from (see CPLR 5511); and it is further,[*2]
Ordered that the order is modified, on the law and thefacts, by deleting the provision thereof denying the branch of the motion of AntoneenDarden-McCall, sued herein as Antoneen Darden and Antoneen McCall, and Marques McCall,also known as Marcus McCall, which was for summary judgment dismissing the negligenceclaims in action No. 1 insofar as asserted against them based on an alleged inoperable fireextinguisher and substituting therefor a provision granting that branch of the motion; asmodified, the order is affirmed insofar as appealed from by Antoneen Darden-McCall, suedherein as Antoneen Darden and Antoneen McCall, and Marques McCall, also known as MarcusMcCall, without costs or disbursements.
This appeal stems from three related actions. In action No. 1, the plaintiff, MariePierre-Louis (hereinafter Pierre-Louis) sought, inter alia, to recover damages from, amongothers, Antoneen Darden-McCall, sued herein as Antoneen Darden and Antoneen McCall(hereinafter Darden), for the wrongful death of the decedent Cassandra Pierre-Louis, arising outof a fire on the premises owned by Darden, allegedly caused by an electric oil-filled space heatermanufactured by the defendant DeLonghi America, Inc. (hereinafter DeLonghi), and sold toDarden by Home Depot, Inc. (hereinafter Home Depot). In action No. 2, Tower InsuranceCompany of New York, as subrogee of Darden, sought to recoup from the DeLonghi and HomeDepot the money it paid on Darden's claim arising out of the same fire. The day of the fire wasthe first time the decedent was at Darden's home. She arrived with Darden's then-16-year-oldson, Marques McCall, also known as Marcus McCall (hereinafter Marques). Pierre-Louis basedher negligence claims against Darden upon Darden's alleged failure to maintain working smokedetectors in her home and an operable fire extinguisher in her home on the day of the fire.Pierre-Louis based her negligence claims against Marques on his alleged actions and inactionson the day of the fire that purportedly precluded containment of the fire and otherwise allowed itto spread.
The general rule is that the violation of a statute that establishes a specific safety dutyconstitutes negligence per se, while the violation of a municipal ordinance constitutes onlyevidence of negligence (see Elliott v City of New York, 95 NY2d 730 [2001]). TheDarden home was required to have an operable smoke detector as of the day of the fire pursuantto Administrative Code of City of New York § 27-979. The ordinance requiringhomeowners to install smoke detectors in their dwelling is designed to protect the occupantsfrom being injured in a fire.
Contrary to Darden's contention, the Supreme Court properly denied that branch of thesummary judgment motion which was to dismiss the negligence claims based on a lack ofworking smoke detectors insofar as asserted against her by Pierre-Louis. Darden met her initialburden of demonstrating her entitlement to judgment as a matter of law in regard to the smokedetectors (see Zuckerman v City of New York, 49 NY2d 557 [1980]). However,Pierre-Louis demonstrated that triable issues of fact existed as to whether there were anyworking smoke detectors present in the subject home on the day of the fire and whether the lackof working smoke detectors was a proximate cause of the damages (see Esdaille v Whitehall Realty Co.,50 AD3d 251 [2008]; Whitfield v City of New York, 239 AD2d 492 [1997]).
We agree with Darden's contention that the Supreme Court erred in denying that branch ofthe summary judgment motion which was to dismiss the negligence claims in action No. 1insofar as asserted against her based on the alleged non-operable fire extinguisher kept in herhome, premised upon an assumption of duty theory. Darden met her burden of demonstratingthat she owed no duty to the decedent, and Pierre-Louis failed to raise a triable issue of fact inresponse (see Van Hove v Baker Commodities, 288 AD2d 927 [2001]).
Contrary to Marques' contention, the Supreme Court properly denied those branches of thesummary judgment motion which were to dismiss the complaint and all cross claims insofar asasserted against him in action No. 1, because he failed to meet his initial burden ofdemonstrating the merit of his defenses as a matter of law. Instead, he merely pointed to gaps inthe opposing parties' proof, which was insufficient to make out a prima facie case for entitlementto summary judgment (see Peskin v New York City Tr. Auth., 304 AD2d 634 [2003]).Skelos, J.P., Fisher, Belen and Lott, JJ., concur.