| Ali Abd Aloan Alomsi v 250 Dean, LLC |
| 2012 NY Slip Op 09013 [101 AD3d 1056] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Ali Abd Aloan Alomsi et al., Respondents, v 250 Dean,LLC, et al., Appellants, et al., Defendant. |
—[*1] Chidi A. Eze, Brooklyn, N.Y., for respondents.
In an action to recover damages for injury to property, the defendants 250 Dean, LLC, andChris Bundy appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Solomon, J.), dated April 19, 2012, as denied that branch of their motion whichwas for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellants' motion which was for summary judgment dismissing the complaintinsofar as asserted against them is granted.
The plaintiffs commenced this action to recover damages for injury to property as a result ofa fire occurring at premises leased by them and owned by the defendant 250 Dean, LLC, ofwhich the defendant Chris Bundy allegedly is a principal (hereinafter together the appellants). Inan order dated April 19, 2012, the Supreme Court, inter alia, denied that branch of the appellants'motion which was for summary judgment dismissing the complaint insofar as asserted againstthem.
The appellants established their prima facie entitlement to judgment as a matter of law bysubmitting evidence that they committed no act from which a jury could rationally infer that theynegligently caused the fire (see Katz vEastern Constr. Developing & Custom Homes, Inc., 100 AD3d 830 [2012]; Tower Ins. Co. v Allstate Ins. Co., 31AD3d 630, 631 [2006]; Indelicato v LJM Venture #1, 7 Misc 3d 129[A], 2005 NYSlip Op 50508[U] [2005]). In opposition, the plaintiffs failed to raise a triable issue of fact. Theplaintiff's submissions, which indicated that the cause of the fire was undetermined, wereinsufficient to raise a triable issue of fact as to the appellants' negligence (cf. Tower Ins. Co. vAllstate Ins. Co., 31 AD3d at 631; Indelicato v LJM Venture #1, 7 Misc 3d 129[A],2005 NY Slip Op 50508[U] [2005]; Travelers Prop. Cas. v Gomez Supermarket, 195Misc 2d 876, 877 [2003]). Contrary to the plaintiffs' contention, they may not rely on the doctrineof res ipsa loquitur to raise an inference that the appellants were negligent. The plaintiffs failed topresent any evidence that the fire would not have occurred in the absence of someone'snegligence (see North Star Contr. Corp. v Burton F. Clark, Inc., 214 AD2d 550 [1995];Indelicato v LJM Venture #1, 7 Misc 3d 129[A], 2005 NY Slip Op 50508[U] [2005]).Accordingly, the Supreme Court should have granted that branch of the appellants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against them. Skelos,J.P., Hall, Roman and Cohen, JJ., concur.