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MERINO v. LEFT NINE, INC

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 10, 1999
258 A.D.2d 896 (N.Y. App. Div. 1999)

Opinion

February 10, 1999

Appeal from Judgment of Supreme Court, Niagara County, Koshian, J. — Negligence.

Present — Green, J. P., Pine, Wisner, Callahan and Balio, JJ.


Judgment unanimously affirmed with costs. Memorandum: Plaintiff is the owner of a building in Niagara Falls that was damaged in a fire. He brought this action alleging that the fire was caused by the negligence of defendant, his tenant, in using a box fan to cool a compressor in the basement. At the nonjury trial, an employee of defendant testified that the fan had been left on continuously for several weeks. Plaintiff's expert testified that the fan was the source of the fire but was unable to specify why the fan overheated. There was no proof that the fan, which was new when it was installed that summer, malfunctioned.

Defendant contends that plaintiff failed to meet his burden of proof on the issue of causation. We disagree. Plaintiff was not "required to rule out all plausible variables and factors that could have caused or contributed to the accident" ( Gayle v. City of New York, 92 N.Y.2d 936, 937). "Plaintiff's burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical `to enable the jury to reach its verdict based not upon speculation, but upon logical inferences to be drawn from the evidence'" ( Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 549, quoting Schnieder v. Highway Hosp. Ctr., 67 N.Y.2d 743, 744). There was sufficient evidence for Supreme Court to conclude that defendant's negligence was a substantial cause of the fire ( see, Sanders v. Bass, 235 A.D.2d 255 [prima facie case of negligence established by proof that fire was caused by a box fan left on, unattended, for one Weekend]).

We reject defendant's contention that the court erroneously based its determination upon an alleged violation of 9 NYCRR 1163.11, which regulates electrical wiring and equipment. Defendant's further contention that the court erred in not imposing sanctions because plaintiff lost certain evidence is not preserved for our review.


Summaries of

MERINO v. LEFT NINE, INC

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 10, 1999
258 A.D.2d 896 (N.Y. App. Div. 1999)
Case details for

MERINO v. LEFT NINE, INC

Case Details

Full title:ROBERT MERINO, Respondent, v. LEFT NINE, INC., Doing Business as CLANCY'S…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 10, 1999

Citations

258 A.D.2d 896 (N.Y. App. Div. 1999)
685 N.Y.S.2d 363

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