Lloyds of London v Evanston

Lloyds of London v Evanston 2015 NY Slip Op 01543 Decided on February 19, 2015 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 February 19, 2015
Friedman, J.P., Andrias, Moskowitz, DeGrasse, Richter, JJ.
14284 151786/12

[*1] Lloyds of London, as subrogee of Mike Rutherford, Plaintiff-Respondent,

v

James W. Evanston, Defendant-Appellant.

Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.

Barrett Lazar, LLC, Forest Hills (Marc B. Schuley of counsel), for respondent.

Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about June 5, 2014, which, to the extent appealed from, denied defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Triable issues of fact exist, including whether defendant's act of turning on his HVAC unit, after having been told by the technician that examined it that it was defective and that defendant should not use it, caused the leak that damaged plaintiff's subrogor's apartment, which was below defendant's apartment (compare Admiral Indem. Co. v Jeng , 2010 NY Slip Op 30794[U] [Sup Ct, NY County 2010] [dismissal of complaint warranted where there was a lack of evidence that tenant was aware of defect to HVAC system that ultimately resulted in a leak into an apartment below]). If, as defendant contends, it would require an expert to prove that his actions caused the leak, it would also be true that an expert would be required to show, as a matter of law, that defendant's actions did not cause the leak. Defendant has failed to offer such proof.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 19, 2015

CLERK