Marsden v. EMLT Realty Corp.

Appellate Division of the Supreme Court of New York

Marsden v. EMLT Realty Corp.

304 A.D.2d 417, 757 N.Y.S.2d 431, 2003 N.Y. App. Div. LEXIS 4143

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 2003

StatusPublished

This text of 304 A.D.2d 417 (Marsden v. EMLT Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marsden v. EMLT Realty Corp., 304 A.D.2d 417, 757 N.Y.S.2d 431, 2003 N.Y. App. Div. LEXIS 4143 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered February 7, 2002, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action brought by residents of an apartment building rendered uninhabitable by a fire, material questions of fact ex[418]*418ist as to plaintiffs’ claims that defendants were negligent in the repair and maintenance of the building and negligent in securing the premises after the fire (see Nichols v Agway, Inc., 280 AD2d 889 [2001]; compare Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [1993]).

Although the Fire Marshal stated that he could not ascertain, with complete precision, the cause of the fire, his theory that the fire was probably caused by heat from electrical wiring was based on his investigation of the premises and interviews conducted at the scene. Plaintiffs’ fire-loss expert’s opinion, that the fire was caused by the overheating of defective electrical wiring in a ceiling, was based on his analysis of Fire Department reports, interviews and specific tenant complaints, and is consistent with the Fire Marshal’s determination. Furthermore, there is conflicting evidence raising triable issues of fact as to the subsequent measures taken to secure the building and its contents. We have considered and rejected defendants’ remaining arguments. Concur — Mazzarelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.

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Order, Supreme Court, New York County (Barbara Kapnick, J.), entered February 7, 2002, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action brought by residents of an apartment building rendered uninhabitable by a fire, material questions of fact ex[418]*418ist as to plaintiffs’ claims that defendants were negligent in the repair and maintenance of the building and negligent in securing the premises after the fire (see Nichols v Agway, Inc., 280 AD2d 889 [2001]; compare Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [1993]).

Although the Fire Marshal stated that he could not ascertain, with complete precision, the cause of the fire, his theory that the fire was probably caused by heat from electrical wiring was based on his investigation of the premises and interviews conducted at the scene. Plaintiffs’ fire-loss expert’s opinion, that the fire was caused by the overheating of defective electrical wiring in a ceiling, was based on his analysis of Fire Department reports, interviews and specific tenant complaints, and is consistent with the Fire Marshal’s determination. Furthermore, there is conflicting evidence raising triable issues of fact as to the subsequent measures taken to secure the building and its contents. We have considered and rejected defendants’ remaining arguments. Concur — Mazzarelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.

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Bluebook (online)

304 A.D.2d 417, 757 N.Y.S.2d 431, 2003 N.Y. App. Div. LEXIS 4143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsden-v-emlt-realty-corp-nyappdiv-2003.

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