Diarrassouba v. Consolidated Edison Co. of New York Inc.

123 A.D.3d 525, 999 N.Y.S.2d 33

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2014
• Docket: 13779 101862/07
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard E Braun, J.), entered July 10, 2013, which granted defendant Harrjoy’s motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

As plaintiffs’ concede, their argument concerning Harrjoy’s compliance with Administrative Code of City of NY § 27-2046.1 was raised for the first time on appeal, and it is, therefore, unpreserved (see Matter of Angel Fabrics [Cravat Pierre, Ltd.], 51 AD2d 951, 952 [1st Dept 1976], lv denied 39 NY2d 711 [1976]). This Court may review legal arguments which appear on the face of the record and which could not have been avoided if brought to the other party’s attention (see Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]). Here, however, the argument is factual, and the record is insufficient for a determination of this issue.

In any event, the unnattended candle was the proximate cause of the fire that resulted in decedent’s death.

Concur — Sweeny, J.P., Renwick, DeGrasse, Clark and Kapnick, JJ.