Diarrassouba v Consolidated Edison Co. of N.Y. Inc.

Diarrassouba v Consolidated Edison Co. of N.Y. Inc. 2014 NY Slip Op 08749 Decided on December 11, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 11, 2014
Sweeny, J.P., Renwick, DeGrasse, Clark, Kapnick, JJ.
13779 101862/07

[*1] Salim Diarrassouba, etc., et al., Plaintiffs-Appellants,

v

Consolidated Edison Co. of New York Inc., Defendant, Harrjoy Realty Inc., Defendant-Respondent.

Ryanne Konan Law Office and Legal Services, Wappingers Falls (Ryanne G. Konan of counsel), for appellants.

Ahmuty Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for respondent.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 10, 2013, which granted defendant Harrjoy's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

As plaintiffs' concede, their argument concerning Harrjoy's compliance with Administrative Code of City of NY § 27-2046.1 was raised for the first time on appeal, and it is, therefore, unpreserved (see Matter of Angel Fabrics [Cravat Pierre, Ltd.], 51 AD2d 951, 952 [1st Dept 1976], lv denied 39 NY2d 711 [1976]). This Court may review legal arguments which appear on the face of the record and which could not have been avoided if brought to the other party's attention (see Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]). Here, however, the argument is factual, and the record is insufficient for a determination of this issue.

In any event, the unnattended candle was the proximate cause of the fire that resulted in decedent's death.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 11, 2014

CLERK