Rosario v Ceci Rest., Inc.

Rosario v Ceci Rest., Inc. 2016 NY Slip Op 07758 Decided on November 17, 2016 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 November 17, 2016
Acosta, J.P., Renwick, Moskowitz, Feinman, Kahn, JJ.
2230 103969/09 590166/10

[*1]Jose Rosario doing business as Inwood Photo, Plaintiff-Respondent,

v

Ceci Restaurant, Inc., Defendant-Appellant, Master Fire Prevention Systems, Inc., et al., Defendants. [And a Third-Party Action]

Law Office of Steven G. Fauth, LLC, New York (Scott S. Levinson of counsel), for appellant.

Law Office of Mitchell J. Winn, New York (Mitchell J. Winn of counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered May 22, 2015, which, to the extent appealed from, denied the motion of defendant Ceci Restaurant, Inc. (Ceci) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Ceci established its prima facie entitlement to summary judgment by submitting evidence showing that it did not create or have actual or constructive notice of the condition that caused the fire that started in its restaurant and spread to plaintiff's business located in an adjacent building (see generally Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).

In opposition, plaintiff submitted, inter alia, the testimony of an employee of defendant Aster Fire Prevention Services, Inc., an affiliate of defendant Master Fire Prevention Systems, Inc., which was hired by Ceci to clean the restaurant's exhaust system. The employee stated that the cleaning of the ducts was not done in strict accordance with the New York City Fire Code. Plaintiff also submitted the testimony and report of a Fire Marshal who indicated that the fire ignited in the ductwork of Ceci. Based on the foregoing, triable issues of fact exist as to whether Master Fire was negligent in performing its work on Ceci's behalf (see e.g. Hosmer v Kubricky Constr. Corp., 88 AD3d 1234 [3d Dept 2011], lv dismissed 19 NY3d 839 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2016

CLERK