Decided August 31, 2010

Simmons v Sacchetti, 65 AD3d 495, modified.

APPEARANCES OF COUNSEL

Law Offices of Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel), for appellants.

Law Office of Max W. Gershweir, New York City (Max W. Gershweir of counsel), for Vito Sacchetti and another, respondents.

Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn of counsel), for Ambassador Fuel and Oil Burner Corp., respondent.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for F&B Fuel Oil Co., Inc., respondent.

Stuart W. Lawrence, New York City, for Met Council, Inc. and another, amici curiae.

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying the motion of defendants Vito Sacchetti and TMS Management Company for summary judgment in the entirety and the motion of defendant Ambassador Fuel and Oil Burner Corp. insofar as it [*2]sought to dismiss the cross claims against it and, as so modified, affirmed.

Triable issues of fact exist as to whether defendants Sacchetti and TMS negligently failed to maintain the apartment building's boiler and domestic hot water system in a reasonably safe condition and whether the negligence of those defendants proximately caused the infant plaintiff's injuries. Issues of fact also exist as to whether the conduct of the infant plaintiff's mother and brother constituted a superseding cause of her injuries. However, the record establishes as a matter of law that defendant Ambassador did not violate any duty owed to plaintiffs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.