| 92 Ct. St. Holding Corp., LLC v Monnet |
| 2013 NY Slip Op 03890 [106 AD3d 1404] |
| May 30, 2013 |
| Appellate Division, Third Department |
| 92 Court Street Holding Corporation, LLC,Respondent-Appellant, v Eric Monnet et al., Appellants, and Jonathan Pantanella,Respondent, et al., Defendant. |
—[*1]
Friedman, Hirschen & Miller, LLP, Albany (Jeanne Gonsalves Lloyd of counsel), forDan Shaver, appellant. Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC, Buffalo (Eric S. Bernhardt ofcounsel), for respondent-appellant. Flink Smith, LLC, Albany (Edward B. Flink of counsel), for respondent.
Stein, J. Appeals from an order of the Supreme Court (Ryan, J.), entered January 20,2012 in Clinton County, which, among other things, granted defendant JonathanPantanella's motion for summary judgment dismissing the complaint against him.
In August 2005, defendants Jonathan Pantanella, Eric Monnet, Dan Shaver(hereinafter [*2]collectively referred to as defendants)and Kyle Nelson entered into a lease with plaintiff's predecessor-in-interest to rent anapartment on the second floor of a 12-unit residential apartment building. WhenPantanella moved into the apartment, he assembled a propane grill and placed it on theapartment's balcony. At or about 11:00 p.m. on the night of September 30, 2005, Monnetand Shaver cooked hamburgers and hot dogs on the grill and, according to defendants,Monnet turned off the grill when he was finished with it. Approximately five hours later,the roommates awoke to a fully involved fire on the balcony and they escaped theapartment safely. However, as a result of damages caused by the fire, the apartmentbuilding was completely demolished.
Plaintiff subsequently commenced this negligence action and alleged that the firewas caused when the grill was left burning and unattended on the balcony. Defendantsanswered and asserted cross claims against one another. Defendants thereafter separatelymoved for summary judgment dismissing the complaint against them.[FN1] Supreme Court granted Pantanella's motion, finding that he did not owe any duty toplaintiff. However, the court denied the motions of Monnet and Shaver on the basis thata question of fact existed with regard to their alleged negligent use of the grill. Monnetand Shaver now appeal from the denial of their summary judgment motions and plaintiffappeals from the grant of Pantanella's motion for summary judgment.
Turning first to the motions of Shaver and Monnet, it is axiomatic that they bore theinitial burden of demonstrating that they were not negligent in the use of the grill (see Cole v Roberts-Bonville,99 AD3d 1145, 1146 [2012]; Green v South Colonie Cent. School Dist., 81 AD3d 1139,1140 [2011]). To that end, they proffered their deposition testimony that Shaver hadfinished cooking his hot dog before Monnet was done cooking his hamburger. Monnetwas the last person to use the grill and he testified unequivocally that he turned off thegrill by turning the knob when he was finished cooking. Additionally, Pantanella andShaver confirmed that Monnet told them immediately after the fire that he had turned offthe grill. With this testimony, Shaver and Monnet met their threshold burden and shiftedthe burden to plaintiff to demonstrate a material issue of fact with respect to their allegednegligent use of the grill (seeLopez-Viola v Duell, 100 AD3d 1239, 1240 [2012]; Adams v Anderson, 84 AD3d1522, 1524 [2011]).
In support of Pantanella's motion for summary judgment, he testified that he checkedthe propane tank for leaks while assembling the grill and that he positioned the grill onthe balcony a sufficient distance from the building so that the radiant heat would not meltthe vinyl siding and damage the building.[FN2] Pantanella also testified that he regularly emptied the grease trap and that [*3]the grill had been used frequently for more than a yearwithout a problem. In addition, defendants' testimony established that Pantanella did notuse the grill on the night before the fire. Accordingly, the evidence submitted in supportof Pantanella's motion was also sufficient to shift the burden to plaintiff to establish aquestion of fact as to his negligence.
In opposition to defendants' motions, plaintiff proffered an attorney's affidavit, thegrill manual and an unsigned incident report prepared by the Plattsburgh Fire Departmentin an attempt to establish that the fire was the result of the negligence of Pantanella inplacing the grill too close to the vinyl siding on the building, combined with thenegligence of Monnet and Shaver in failing to turn the grill off after they were finishedusing it. In this regard, we discern no error in Supreme Court's refusal to consider the firedepartment's report. An unsigned report may be considered in opposition to a motion forsummary judgment only when it is not the sole competent evidence submitted (see Craft v Whittmarsh, 83AD3d 1271, 1273 [2011]; Seybolt v Wheeler, 42 AD3d 643, 645 [2007]; Bond v Giebel, 14 AD3d849, 850 [2005]). Standing alone, such a report is insufficient to raise a triable issueof fact, absent some excuse for the failure to produce evidence in admissible form(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Craft vWhittmarsh, 83 AD3d at 1273; Kaufman v Quickway, Inc., 64 AD3d 978, 980-981 [2009],affd 14 NY3d 907 [2010]).
Here, plaintiff did not produce evidence as to the cause of the fire in admissibleform—such as an affidavit, sworn report or other document established as abusiness record—or proffer any excuse for failing to do so.[FN3] Further, even if the fire department report were considered, it cited multiple ignitionsfrom multiple areas of origin and listed no particular cause of ignition. Accordingly, weconclude that plaintiff failed to meet its burden of demonstrating the existence of atriable issue of fact regarding whether defendants' negligence was a substantial cause ofthe fire (see 2 N. St. Corp. vGetty Saugerties Corp., 68 AD3d 1392, 1395 [2009], lv denied 14NY3d 706 [2010]; Jock vLandmark Healthcare Facilities, LLC, 62 AD3d 1070, 1072-1073 [2009]; Rockefeller v Albany WeldingSupply Co., 3 AD3d 753, 755-756 [2004]).
Finally, plaintiff has not established its entitlement to an inference of negligencepursuant to the doctrine of res ipsa loquitur. To do so, plaintiff was required todemonstrate, among other things, that the fire was one that ordinarily would not haveoccurred in the absence of defendants' negligence (see Fontanelli v Price Chopper Operating Co., Inc., 89 AD3d1176, [*4]1178 [2011]; Norton v Albany County AirportAuth., 52 AD3d 871, 875 [2008]; Ladd v Hudson Val. AmbulanceServ., 142 AD2d 17, 20-21 [1988]). While plaintiff need not have eliminated everyalternative explanation for the event, it was required to demonstrate that the probabilityof other causes was so reduced that defendants' negligence was more likely than not tohave caused the injury (see Fontanelli v Price Chopper Operating Co., Inc., 89AD3d at 1178; Rondeau vGeorgia Pac. Corp., 29 AD3d 1066, 1069 [2006]; De Sanctis v MontgomeryEl. Co., 304 AD2d 936, 937 [2003]). In view of plaintiff's failure to proffer anyadmissible evidence—or, indeed, any evidence whatsoever based upon more thanpure speculation—that negligence was a factor in the cause of the fire, plaintiff hasnot met its burden of demonstrating that res ipsa loquitur applies (see Hartford Ins. Co. of Midwest vOrange & Rockland Utils., Inc., 103 AD3d 846, 847 [2013]; Ali Abd Aloan Alomsi v 250 Dean,LLC, 101 AD3d 1056, 1057 [2012]; One Beacon Ins. Co. v CMB Contr. Corp., 84 AD3d 902,902 [2011]).
We have examined plaintiff's remaining arguments and find them to be withoutmerit.
Rose, J.P., Spain and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, with one bill of costs to defendants Eric Monnet, Dan Shaver and JonathanPantanella, by reversing so much thereof as denied motions by defendants Eric Monnetand Dan Shaver for summary judgment dismissing the complaint against them; saidmotions granted and complaint dismissed against said defendants; and, as so modified,affirmed.
Footnote 1: The record before us isnot clear as to the status of plaintiff's claim against Nelson and it does not contain factssetting forth the basis for such claim or any indication that Nelson moved for summaryjudgment dismissing the complaint.
Footnote 2: We agree with plaintiffthat Supreme Court improperly found the absence of a duty on the part of Pantanella withrespect to the manner in which he positioned the grill (see generally Palka vServicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]; Pulka vEdelman, 40 NY2d 781, 782 [1976]; St. Paul Travelers Cos., Inc. v Joseph Mauro & Son, Inc., 93AD3d 658, 660 [2012]). Here, the undisputed testimony established that Pantanellaowned the grill, assembled it and positioned it on the balcony of the apartment withknowledge of the attendant dangers in placing the grill too close to the vinyl siding of thebuilding. Indeed, Pantanella's counsel conceded at oral argument that Pantanella had aduty of care with respect to the placement of the grill on the balcony.
Footnote 3: To the extent thatplaintiff now attempts to rely on the unsworn report of its expert—submitted byPantanella in his reply to plaintiff's opposition to his motion—we note that therecord reflects that plaintiff's expert has been in possession of the suspect grill andpropane tank for more than six years but, inexplicably, has not performed any testing onthe grill or reached any conclusive opinion regarding the cause of the fire.