| One Beacon Ins. Co. v CMB Contr. Corp. |
| 2011 NY Slip Op 04016 [84 AD3d 902] |
| May 10, 2011 |
| Appellate Division, Second Department |
| One Beacon Insurance Company, as Subrogee of Howard Blady,Respondent, v CMB Contracting Corp., Doing Business as Mid Island Contractors, Inc.,Appellant. |
—[*1] Sheps Law Group, P.C., Melville, N.Y. (Robert C. Sheps of counsel), forrespondent.
In a subrogation action, inter alia, to recover damages for negligence, the defendant appealsfrom an order of the Supreme Court, Nassau County (Marber, J.), entered July 21, 2010, whichdenied 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.
The house of the plaintiff's insured, Howard Blady, was damaged as a result of a fire thatbroke out on the second floor, which was under renovation. Blady had retained the defendant toperform renovation work at the house. On the day of the fire, the defendant's workers left thepremises at 5:00 p.m., Blady and his wife visited the premises between 6:00 p.m. and 7:00 p.m.,and the local fire department was notified of the fire at approximately 10:30 p.m. The firedepartment could not determine the cause of the fire.
The defendant established its entitlement to judgment as a matter of law by submittingevidence sufficient to demonstrate that none of its acts or omissions caused or contributed to thefire that damaged Blady's property (seeCataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129 [2006]; EasyShopping Corp. v Sneakers Ctr. & Sports, 303 AD2d 361 [2003]; Tower Ins. Co. of N.Y.v M.B.G. Inc., 288 AD2d 69 [2001]). In opposition, the plaintiff failed to raise a triable issueof fact. Contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is inapplicable tothis case since there was no basis for finding that the origin of the fire was due to negligence(see North Star Contr. Corp. v Burton F. Clark, Inc., 214 AD2d 550 [1995]; Board ofEduc. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [1981];Schultheis v Pristouris, 45 AD2d 864 [1974]).
Accordingly, the defendant's motion for summary judgment dismissing the complaint shouldhave been granted. Mastro, J.P., Balkin, Leventhal and Belen, JJ., concur. [Prior CaseHistory: 2010 NY Slip Op 32026(U).]