Famularo v. Havasi

221 A.D.2d 587, 635 N.Y.S.2d 495, 1995 N.Y. App. Div. LEXIS 12476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1995
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated May 13, 1994, which granted the motion of the defendant Brooklyn Union Gas for summary judgment dismissing the complaint and all cross claims against it. The defendants Bela Havasi and Margreth Havasi separately appeal from the same order.

Ordered that the order is affirmed; and it is further,

Ordered that the appeal of the defendants Bela Havasi and Margreth Havasi is dismissed as withdrawn; and it is further,

Ordered that the defendant Brooklyn Union Gas is awarded one bill of costs.

The plaintiff Carol Ann Famularo was injured when an explosion occurred as she was attempting to light the pilot light on a gas furnace located in the basement of a building owned by the defendants Bela Havasi and Margreth Havasi.

It is well established that summary judgment will be granted only if there are no material and triable issues of fact (see, Sill-man v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. "On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact” (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341). "But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment” (Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Contrary to the plaintiff’s arguments, there is nothing in the record from which it could be inferred that the defendant Brooklyn Union Gas either had notice of the alleged defect or had negligently serviced the furnace. Accordingly, the Supreme Court properly granted the motion of the defendant Brooklyn Union Gas for summary judgment (see, Reid v Westchester Light. Co., 236 NY 322; Pernick v Central Union Gas Co., 183 App Div 543, affd 228 NY 594; Jacques v Fleuren, 136 AD2d 850; cf., Royal v Brooklyn Union Gas Co., 122 AD2d 132). Balletta, J. P., Ritter, Copertino and Pizzuto, JJ., concur.