| Cristescu v Gasparis |
| 2017 NY Slip Op 01531 [148 AD3d 669] |
| March 1, 2017 |
| Appellate Division, Second Department |
[*1]
| Bogdan Cristescu, Appellant, v John Gasparis et al.,Respondents. |
Hoberman & Trepp, P.C., Bronx, NY (Adam F. Raclaw of counsel), for appellant.
Faust, Goetz, Schenker & Blee LLP, New York, NY (Todd Hellman and JeffreyRubinstein of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (McDonald, J.), dated November 20, 2015, which grantedthe defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly was injured when he awoke in his apartment to find that his livingroom was on fire and he was forced to run through the flames to exit through the front door ofthe apartment. The plaintiff commenced this action against the owners of the building, allegingthat they were negligent in failing to install a smoke detector in the apartment. The defendantsmoved for summary judgment dismissing the complaint, arguing that there was a smoke detectorinside the apartment, and, in any event, that the plaintiff failed to offer any evidence that thealleged failure to install a smoke detector proximately caused his injuries. The Supreme Courtgranted the defendants' motion.
In support of their motion, the defendants submitted contradictory evidence as to whether asmoke detector was installed in the plaintiff's apartment, and thus failed to eliminate questions offact as to that issue (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Castlepoint Ins. Co. v Command Sec.Corp., 144 AD3d 731 [2016]; Taylor v New York City Hous. Auth., 116 AD3d 695 [2014]).Additionally, the defendants failed to establish, prima facie, that the absence of a smoke detectorwas not a proximate cause of the plaintiff's injuries, since, with respect to this issue, they merelypointed to gaps in the plaintiff's case (see Savekina v New York City Tr. Auth., 131 AD3d 1156 [2015];Taylor v New York City Hous.Auth., 116 AD3d 695 [2014]; Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 857, 859[2009]).
Since the defendants failed to establish their prima facie entitlement to judgment as a matterof law, we need not consider the sufficiency of the plaintiff's opposition papers (see Alvarez vProspect Hosp., 68 NY2d at 324).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint. Leventhal, J.P., Roman, Sgroi and Connolly, JJ.,concur.