Serpas v. Jazimona Holding Corp.

174 A.D.2d 551

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1991
• Status: Published

Opinion

—Order, Supreme Court, New York County (Carol H. Arber, J.), entered on or about November 28, 1990, which denied defendant Brooklyn Union Gas Company’s motion for summary judgment, unanimously affirmed, without costs.

On July 7, 1985, an arson fire swept through 89-16 Northern Boulevard in Jackson Heights, Queens. One of the seven occupants of a third floor apartment, Nelson Serpas, died as a result of the fire, from asphyxia due to smoke inhalation. The six surviving occupants allegedly suffered a variety of physical and mental injuries. Plaintiffs brought this wrongful death/ personal injury action against the landlord of the building and Brooklyn Union Gas, alleging, as against the latter, negligence in maintaining the gas lines on the premises.

At the depositions of three of the surviving adult plaintiffs and a non-party witness, there was testimony that there had been an odor of gas in the kitchen of the apartment from time to time after August 1984; that complaints had been made to the utility three or four times over the following eleven months; that the utility had taken no action to investigate or remedy the condition; and that during the July 7 fire, a loud explosion emanated from the kitchen area of the apartment.

On this record, Supreme Court properly denied defendant Brooklyn Union Gas Company’s motion for summary judgment, as it failed to eliminate all issues of fact as to whether there was negligence in failing to remedy a gas leak in the kitchen of the third floor apartment, and whether any such negligence was a concurring cause of plaintiffs’ injuries. Concur—Milonas, J. P., Rosenberger, Ellerin, Kassal and Smith, JJ.