Nitecki v. National Fuel Gas Distribution Corp.

193 A.D.2d 1098, 598 N.Y.S.2d 411, 1993 N.Y. App. Div. LEXIS 5735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1993
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant National Fuel Gas Distribution Corporation’s motion for summary judgment dismissing the complaint. Defendant established entitlement to judgment in its favor as a matter of law by the submission of medical evidence that plaintiff sustained no injuries as a result of defendant’s repair of a furnace located in a residence at 6 Franklin Street, Buffalo on November 20, 1986. Plaintiff resided in a garage apartment attached to that residence. In opposition to defendant’s motion, plaintiff tendered her affidavit and an affidavit from a physician who first examined her on March 2, 1987. The affidavit of that physician did not contradict the medical evidence proffered by defendant and, thus, plaintiff failed to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff’s physician averred that, because he did not examine her until four months after the alleged exposure to carbon monoxide, "it would be impossible to diagnose the carbon monoxide poisoning that had occurred earlier”. Plaintiff’s allegation that she was injured as a result of carbon monoxide exposure, without the tender of supporting expert opinion, is insufficient to defeat defendant’s motion. Furthermore, the additional medical evidence proffered by plaintiff failed to demonstrate that plaintiff sustained any injuries that were related to carbon monoxide exposure.

Contrary to plaintiff’s assertion, it is immaterial that members of the household at 6 Franklin Street suffered from carbon monoxide poisoning because that diagnosis was made previous to the time that defendant repaired the furnace. (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Summary Judgment.) Present—Green, J. P., Pine, Boomer, Davis and Boehm, JJ.