Colon v. H&B PLUMBING & HEATING, INC.

• Decision Date: 15 May 2003
• Citation: 305 A.D.2d 235,761 N.Y.S.2d 599
• Court: New York Supreme Court — Appellate Division
• Parties: MARCELINO COLON, Appellant,<BR>v.<BR>H&B PLUMBING & HEATING, INC., et al., Respondents.<BR>MARCELINO COLON, Respondent-Appellant,<BR>v.<BR>H&B PLUMBING & HEATING, INC., Appellant-Respondent, and<BR>CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Respondent.

305 A.D.2d 235

761 N.Y.S.2d 599

MARCELINO COLON, Appellant,

v.H&B PLUMBING & HEATING, INC., et al., Respondents.

MARCELINO COLON, Respondent-Appellant,

v.H&B PLUMBING & HEATING, INC., Appellant-Respondent, andCONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Respondent.

Decided May 15, 2003.

Concur — Andrias, J.P., Williams, Lerner, Friedman and Marlow, JJ.

No issue of fact exists as to whether the fire was caused by a gas leak. Con Ed, responding to the third-floor tenant's complaint of a gas smell, shut off the gas to the third-floor apartment and advised plaintiff's father, the building owner, with whom plaintiff's decedents were staying, that a hazardous condition existed and that it would not turn the gas back on until the Buildings Department certified that a licensed plumber had made the necessary repairs. A few days later, defendant plumbing contractor removed and replaced the gas piping in the apartment and turned the gas back on without communicating with Con Ed or the Buildings Department. The fire occurred 12 days later. According to the investigating fire marshal, whose deposition and affidavit were submitted in support of the contractor's motion along with a corroborating expert's affidavit, gas had no role in the fire whatsoever. Rather, the fire, which originated in the second-floor apartment, was caused by a faulty refrigerator motor that overheated the refrigerator's wiring. This satisfied defendants' prima facie burden of showing entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, plaintiff relied mainly on the affidavit of his expert, who stated that the third-floor tenant told him that she again smelled gas after the contractor had completed its work and again contacted Con Ed, and that Con Ed returned to her apartment the day before the fire and determined that there was gas in the air, but left without doing anything. In addition, plaintiff submitted affidavits from building residents stating that they were awakened by a noise that sounded like an explosion. In reply, Con Ed submitted the affidavit of the third-floor tenant stating that she never smelled gas or called Con Ed or saw Con Ed in the building after the contractor had been to her apartment, and never told anyone to the contrary. The motion court held a hearing at which it heard plaintiff's expert and the third-floor tenant, after which it credited the third-floor tenant's testimony reiterating her affidavit...