ARLENE P. BLUTH, J.

Defendants Joseph and Shufen Krenitsky's motion for dismissal of the complaint on grounds of spoliation of crucial evidence is granted, and defendant Jane Krenitsky's cross-motion for summary judgment dismissing the complaint against her is also granted.

This case is based upon a fire which occurred at about 5 PM on Sunday, July 11, 2004 in apartment 2A at 1702 Second Avenue in Manhattan. Plaintiff's subrogor, Nipet Realty Inc., is the owner of the apartment building and the defendant in the first action, Jane Krenitsky, was the tenant. Defendants in the second action, Joseph and Shufen Krenitsky, Jane's brother and sister-in-law, stayed in her apartment while she was in Fire Island for the weekend. Joseph and Shufen left the apartment on Sunday, July 11, 2004, in the early afternoon and returned to their home in Buffalo. At his deposition (exh. B to main motion), Joseph testified that he did not cook anything or use any of the electrical appliances in the kitchen (T. at 18), or touch any of the knobs on the stove (T. at 26). Shufen also testified that they had not done any cooking in the apartment or used any electrical appliances in the kitchen and that she did not touch any knobs on the stove (exh. I to motion, T. at 6-7). When Jane returned home that evening, she learned that there had been a fire in her apartment and that her dog, Ashley, had died in the fire.

As a result of the fire, plaintiff paid Nipet $23,635.90 for property damage under its insurance policy which had a $5,000.00 deductible. In or about February 2005, plaintiff commenced a subrogation action against Jane Krenitsky to recover the monies that it paid to its insured, alleging negligence and breach of contract. Thereafter, in or about September 2006, plaintiff commenced a second subrogation action against Joseph and Shufen Krenitsky, alleging that they negligently caused the fire. By order dated September 5, 2007, these actions were consolidated for a joint trial.

Spoliation

Defendants contend that plaintiff's subrogation actions should be dismissed on the ground of spoliation because Nipet disposed of the stove before they had an opportunity to examine it.

The tenant, Jane Krenitsky, had renters' insurance. On July 13, 2004, two days after the fire, Jane's insurer, State Farm, sent Guardian Investigation Group, Inc. to perform a fire scene cause and origin investigation of the apartment, including the stove. This was the first investigation of the apartment, including the stove, after the fire. In discovery, Jane produced Guardian's invoice which indicates that it conducted an investigation, performed interviews, took photographs, made sketches for a total of $1,100.00, plus tax. At her deposition (T. at 29), Jane said that she was present when Guardian's investigator performed his investigation and he explained to her that the fire was caused by the rear left burner. A written report was apparently never generated; Guardian's invoice indicates that State Farm put a "hold" on submission of the findings. (Exh. B to plaintiff's aff. in opp.) In support of her motion, Jane has not offered any explanation as to why a written report was never generated. Significantly the investigation was ordered by Jane's insurer and not on behalf of Joseph and Shufen Krenitsky.

Five days after the fire, on July 16, 2004, plaintiff's investigator, Jonathan LeBow, tried to gain access to the apartment but could not because the tenant had double-locked the front door. Thereafter, on July 20, 2004, LeBow gained entry and performed his investigation as to the cause and origin of the fire. On that same day (July 20, 2004), LeBow sent a letter to Nipet, addressed to Catherine Montemurro, confirming his prior instructions to her: "Also, as we discussed please retain the stove in the secured basement storage area for possible examination by interested parties if requested".

In his report to plaintiff dated August 3, 2004, LeBow stated that "tenants/guests unattended cooking" was the cause of the fire, concluding that heat from an open flame of the stove's rear left burner ignited surrounding material (Exh. A to plaintiff's aff. in opp., p. 8). Also in his report, LeBow indicated that the insured (Nipet) had been instructed to preserve the stove. (Exh. A to aff. in opp., p. 5). That letter merely told the landlord to put the stove in the basement it did not direct the landlord to preserve all parts of the stove or specify how long the landlord should keep it in the basement. There can be no dispute that plaintiff was on notice as of the date of Mr. Lebow's report that the stove, which held the key to the cause and origin of the fire, had to be preserved for future inspection. Thereafter, plaintiff failed to take any action to preserve the stove (such as picking it up from its subrogor and storing it in a secure location).

Joseph and Shufen Krenitsky's timely demand regarding the stove was sent to plaintiff's counsel in a further notice for discovery and inspection dated April 12, 2007. By unverified response of its attorneys dated July 18, 2007, plaintiff indicated that it did not know of the location or status of the stove, and did not know the date, time or location that the stove may have been disposed, or the identity of the last custodian.

In Standard Fire Insurance Company v Federal Pacific Electric Company, 14 AD3d 213, 217, 786 NYS2d 41, 44 (1st Dept 2004), the Appellate Division, First Department held that the insurance company/subrogee of the homeowner had an obligation to preserve the defective equipment at issue in the lawsuit for all parties to inspect, and that it had the authority, means and opportunity to safeguard the equipment. In that case the Court indicated that there could be no dispute that plaintiff was on notice at the time of its engineer's inspection that the electrical panel and circuit breakers, which held the key to the cause and origin of the fire, would be needed for future litigation because the cause of the fire was the sole basis of plaintiff's claim against defendants; the same is true of the subrogee and of the stove in the instant actions. (As in Standard, plaintiff, as subrogee of Nipet, knew of the importance of the stove and commenced these actions, basing its claims solely on the information obtained during the course of its investigator's inspection of the damaged premises.) Additionally, the Court emphasized that negligent as well as intentional spoliation of a key piece of evidence may warrant dismissal. On that basis, the Court reversed the lower court and dismissed the action on the grounds of spoliation.

Under these circumstances, because there is no independent evidence that would permit defendants Joseph and Shufen Krenitsky to adequately defend this action, imposition of costs or a missing evidence charge would not be appropriate, and striking the spoliator's pleading is warranted. Compare Atlantic Mut. Ins. Co. v Sea Transfer Trucking Corp., 264 AD2d 659, 659-660, 696 NYS2d 114 (1st Dept 1999) (where the Court held that the missing evidence was not crucial to the determination of the key issue in the litigation, citing Squitieri v City of New York, 248 AD2d 201; Kirkland v New York City Hous. Auth., 236 AD2d 170; Mudge, Rose, Guthrie, Alexander Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243).

Moreover, the fact that Jane's insurer's investigator (Guardian) inspected the premises two days after the fire does not change this result for several reasons. First, there is no report from that investigator and there is no indication of what he was looking for or what he found, or why State Farm paid her $9,000.00 for her loss. Moreover, even if Guardian had issued a report, no matter what it concluded, that would not change the fact that Joseph and Shufen Krenitsky have been deprived of examining the stove which they are accused of leaving on and unattended. And they are only deprived of that opportunity because plaintiff failed to preserve it even though it was on notice that it would be needed for future inspections.

In opposition, plaintiff's attorney makes the wholly unwarranted assumption, based upon an unsworn investigator's report, that it has been conclusively determined that human intervention caused the fire. However, Joseph and Shufen Krenitsky submitted the affidavit of Michael Russo, a fire and explosion expert, who opines that LeBow's conclusion was based on incomplete data-gathering and observation (Exh. G to opposition papers, p. 4). Russo further contends that LeBow's conclusion that the fire was caused by unattended cooking is "speculative" (Russo aff., p. 7), and the fire cause should have been listed as "undetermined" (Russo aff., p. 11). Overall, from Mr. Russo's detailed analysis of Mr. Lebow's investigation (or lack thereof), one thing remains abundantly clear: had the stove been preserved, Mr. Russo would have conducted extensive tests to the various components thereof and, considering that both Joseph and Shufen Krenitsky each definitively swore that they had not used the stove while staying at the apartment, might have discovered a reason other than "unattended cooking" for the fire. In our adversarial system, it is only fair to afford all sides the right to examine crucial evidence. Because plaintiff and its subrogor did not preserve the stove, each Krenitsky has been deprived of the right to examine this crucial evidence.

Accordingly, the complaint against Joseph and Shufen Krenitsky is hereby dismissed on the grounds of spoliation of evidence.

Summary Judgment

Additionally, Jane Krenitsky moves for summary judgment dismissing both causes of action of the complaint, that she negligently caused the fire and that, by breaching her lease, she is liable for the full amount that plaintiff paid to Nipet for its property damage claim.

In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872, 433 NYS2d 1015, 414 NE2d 395 (1980). In opposing such a motion, the party must lay bare its evidentiary proof. Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v City of New York, 49 NY2d 557 at 562, 427 NYS2d 595 (1980).

In deciding the motion, the court must draw all reasonable inferences in favor of the non-moving party and must not decide credibility issues. ( Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 562 NYS2d 89 [1st Dept 1990]. As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact ( Chemical Bank v West 95th Street Development Corp., 161 AD2d 218, 554 NYS2d 604 [1st Dept 1990]), or where the issue is even arguable or debatable ( Stone v Goodson, 8 NY2d 8, 200 NYS2d 627, 167 NE2d 328).

In support of her motion, counsel refers to Jane's deposition testimony wherein she stated that she was not present in her apartment at the time of the fire and that she did not learn about the fire until she returned home in the evening of July 11, 2004. She further testified that she had used the stove one to two weeks before the fire and that it was working properly and that the last repair made to the stove (which was to the left rear burner) had been at least one year before the fire.

In opposition to Jane's motion, plaintiff's counsel makes the statement that "with a conclusive determination that human intervention precipitated the fire and sworn testimony that neither Joseph or Shufen used the stove, it follows that Jane Krenitsky, as the apartment's only other confirmed occupant left the rear burner in the on' position, thus causing the fire" (aff. in opp., para. 41) and "(a)s such, a question of fact exists as to whether or not Jane Krenitsky negligently caused the fire" (aff. in opp., para. 42).

First, there is no conclusive determination that human intervention caused the fire that is merely one investigator's unsworn determination, after an arguably amateurish investigation, which cannot be contradicted because the crucial evidence has been made unavailable for inspection by experts. Second, claiming that Jane left the stove on is just plain silly she was in Fire Island for the weekend. Based on the facts in the record, Jane last used the stove a week or two before the fire (cross-motion, ex. D, T. 18). This means that, in order for the plaintiff's attorney's speculation to be true, Jane would have left the burner on for at least a week without noticing it, and that her brother and sister-in-law staying in the apartment over the weekend also would not have noticed it, and that somehow the fire did not occur until Sunday afternoon, even though the burner was on for all that time. This rank speculation does not make sense and is without any basis in fact on this record. As it is undisputed that Jane was not at the premises when the fire began, counsel's argument is insufficient to defeat summary judgment.

In opposition to Jane's motion to dismiss the second cause of action, plaintiff's counsel relies upon paragraph 11 of the lease. This provides that as tenant, Jane was responsible for the behavior of any visitors in that she was obligated to assure compliance with all laws, government regulations and lease rules. If the tenant breached paragraph 11, then she was obligated to reimburse Nipet as additional rent upon demand for the costs of all losses, damages, etc. that Nipet incurred if her visitors did not obey any laws, government regulations or lease rules. Again, relying on the unproven, unsworn and self-serving opinion of "unattended cooking", plaintiff's counsel concludes that the negligent act of unattended cooking is attributable to Jane Krenitsky and operates to violate the terms of her lease.

Plaintiff's tortured explanation of its contract theory of liability fails to raise a triable factual question for several reasons. Plaintiff, as subrogee, stands in Nipet's shoes. Although paragraph 11 of the lease refers to laws, government regulations and lease rules, plaintiff has failed to point to a single law, regulation or any of the 11 lease rules (the last page of exhibit E to Jane's cross-motion) which Jane has violated with respect to the fire (the "no pet" rule, obviously violated or waived by the landlord, is not relevant here). Moreover, subsection (c) of paragraph 11 merely entitled Nipet to seek additional rent from its tenant upon proper demand; not only has plaintiff failed to demonstrate that there was any breach at all by Jane or her visitors, plaintiff has failed to even allege that a demand was made or that such monies were sought as additional rent. Finally, plaintiff has not produced a copy of the renewal lease, or stated the terms of the tenancy on the day the fire occurred. Accordingly, plaintiff has not even stated a cause of action against Jane for breach of the lease, and certainly has not raised a triable factual question.

In short, even though it is plaintiff's burden, plaintiff has not submitted a shred of evidence to contradict Jane Krenitsky's arguments and oppose her summary judgment motion. Plaintiff has only submitted its attorney's unsupported theories in the form of an affirmation; clearly, this is not enough to withstand summary judgment. Therefore, the complaint against Jane Krenitsky is hereby dismissed.

Accordingly, the Clerk is directed to enter judgment in favor of defendants in both of these actions.

This is the Decision and Order of the Court.