Mittendorf v. Brooklyn Union Gas Co.

195 A.D.2d 449, 600 N.Y.S.2d 123, 1993 N.Y. App. Div. LEXIS 7016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1993
• Status: Published

Opinion

In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated April 15, 1991, which granted the defendants’ respective motions for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

On October 2, 1987, the decedent Elizabeth Mittendorf suffered serious injuries, resulting in her death, during an explosion and fire in the kitchen of her apartment. An action was commenced against the defendants, Brooklyn Union Gas and the landlord Elizabeth Yeager, to recover damages for personal injuries and wrongful death. Thereafter, the defendants moved for summary judgment. We find that the Supreme Court properly granted summary judgment in favor of the defendants.

The papers submitted by the defendants indicated that the Fire Marshall was unable to determine the cause of the explosion, and there are competing inferences as to its origin. Even if one accepts the premise that a gas leak caused the explosion, this is insufficient to establish negligence by either of the defendants. The plaintiff admits that neither defendant was ever given notice of a possible defect and absent such notice, liability will not attach (see, Reid v Westchester Light. Co., 236 NY 322; see also, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559).

Additionally, the plaintiff’s opposition papers, consisting of an attorney’s affidavit and an unsworn expert’s report, were insufficient to avoid summary judgment (see, Levitt v County of Suffolk, 145 AD2d 414). Sullivan, J. P., Lawrence, Eiber and Ritter, JJ., concur.