Regalado v. Independent Welding Supply Corp.

289 A.D.2d 124, 735 N.Y.S.2d 40, 2001 N.Y. App. Div. LEXIS 12293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2001
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about September 15, 2000, as amended by order entered September 26, 2000, which, in an action for personal injuries sustained when a cylinder containing propane gas attached to the stove in plaintiffs apartment exploded, insofar as appealed from, denied defendant-appellant distributor’s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Appellant’s argument that the action should.be dismissed as against it because of plaintiffs failure to preserve the allegedly defective cylinder was properly rejected upon a record establishing that the cylinder was discarded or destroyed not by plaintiff but by the Police or Fire Department (see, Maliszewska v Potamkin N. Y. LP Mitsubishi Sterling, 281 AD2d 353) and that plaintiffs counsel unsuccessfully attempted to retrieve same. Appellant’s other argument that the action should be dismissed because plaintiffs storage of more than one pound of propane in his apartment was illegal (3 RCNY former 25-11 [b] [8], now 25-01 [c] [5] prohibiting containers of more than 16.4 ounces) was properly rejected on the ground that the use of propane gas in City apartments is an activity regulated, not prohibited. Accordingly, any unlawful conduct by plaintiff in bringing too large a cylinder into his apartment goes to the issue of comparative negligence (see, Barker v Kallash, 63 NY2d 19, 24). Concur — Lerner, J. P., Saxe, Buckley, Friedman and Mar-low, JJ.