Artalyan, Inc. v Kitridge Realty Co., Inc.

Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Artalyan, Inc., et al., Respondents,
v
Kitridge Realty Co., Inc., et al., Appellants.

—[*1] Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola (Elizabeth Gelfand Kastner of counsel), for appellants.

Meier, Franzino & Scher, LLP, New York (Tinamarie Franzoni of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 24, 2010, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their initial burden of establishing prima facie that they properly installed and maintained an adequate safety system in the building and that the fire did not originate or spread as a result of their negligence. Their contention that they should have been granted summary judgment because plaintiffs could not establish as a matter of law that they were negligent misapprehends their burden on their own motion. The vague deposition testimony of defendant Kitridge Realty Co.'s principal and owner about whether there was a fire safety system in the building was insufficient to demonstrate that plaintiffs' cause has no merit (CPLR 3212 [b]).

Thus, defendants' motion was correctly denied for defendants' failure to make out a prima facie entitlement to summary judgment. The motion court did not need to consider plaintiffs' papers in opposition (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Were we to consider plaintiffs' expert's affirmation and report submitted in opposition, plaintiffs clearly raised an issue of fact as to whether defendants' failure to maintain adequate fire alarms and sprinklers in the building permitted the spread of the fire, causing damage so extensive that the building had to be demolished. Concur—Gonzalez, P.J., Catterson, Acosta, Richter and Abdus-Salaam, JJ.