Summary
granting summary judgment to gas company and landlord sued for damages caused by an explosion in plaintiff's apartment where the fire marshal could not determine its cause, and even if it had been caused by a gas leak, as a matter of law, neither defendant could be liable because neither had received notice of the alleged defect
Summary of this case from Weber v. PaduanoOpinion
July 6, 1993
Appeal from the Supreme Court, Kings County (Spodek, J.).
Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
On October 2, 1987, the decedent Elizabeth Mittendorf suffered serious injuries, resulting in her death, during an explosion and fire in the kitchen of her apartment. An action was commenced against the defendants, Brooklyn Union Gas and the landlord Elizabeth Yeager, to recover damages for personal injuries and wrongful death. Thereafter, the defendants moved for summary judgment. We find that the Supreme Court properly granted summary judgment in favor of the defendants.
The papers submitted by the defendants indicated that the Fire Marshall was unable to determine the cause of the explosion, and there are competing inferences as to its origin. Even if one accepts the premise that a gas leak caused the explosion, this is insufficient to establish negligence by either of the defendants. The plaintiff admits that neither defendant was ever given notice of a possible defect and absent such notice, liability will not attach (see, Reid v. Westchester Light. Co., 236 N.Y. 322; see also, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559).
Additionally, the plaintiff's opposition papers, consisting of an attorney's affidavit and an unsworn expert's report, were insufficient to avoid summary judgment (see, Levitt v. County of Suffolk, 145 A.D.2d 414). Sullivan, J.P., Lawrence, Eiber and Ritter, JJ., concur.