Dani II, Inc. v. 101 DuPont LLC

2017 NY Slip Op 539, 146 A.D.3d 672, 44 N.Y.S.3d 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2017
• Docket: 2862 155670/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 30, 2015, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the claims for damages incurred to plaintiff’s business post-Super Storm Sandy, unanimously affirmed, with costs.

Assuming, arguendo, that defendants established prima facie that plaintiff’s alleged losses were proximately caused by an act of God with no contributing negligence on their part (see Prashant Enters. v State of New York, 206 AD2d 729, 730-731 [3d Dept 1994]), plaintiffs evidence in opposition raises issues of fact whether defendants adequately responded to the prompt notice they were given that the storm had blown away part of the roof of their commercial building, exposing the tenant spaces therein to significant water accumulation and damage, and whether the alleged inadequate action by defendants amounted to negligent conduct that proximately caused the additional damages alleged by plaintiff (see Michaels v New York Cent. R.R. Co., 30 NY 564, 571 [1864]; see also Birner v Bickford’s, Inc., 280 App Div 911 [1st Dept 1952], affd 305 NY 664 [1953]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Acosta, J.P., Mazzarelli, Fein-man and Webber, JJ.