[*1]
Darby v M&G Inc.
2003 NY Slip Op 51498(U)
Decided on December 4, 2003
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the Official Reports.


Decided on December 4, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.
570171/03

EDWARD DARBY AND MARGUERITE DARBY, Plaintiffs-Respondents,

against

M&G INC. AND LEE WINSTON, Defendants-Appellants.


Defendant M&G Inc. appeals from an order of the Civil Court of the City of New York, Bronx County, entered August 19, 2002 (Wilma Guzman, J.) which denied its motion, inter alia, for summary judgment dismissing the complaint.


PER CURIAM:

Order entered August 19, 2002 (Wilma Guzman, J.) affirmed, with $10 costs.

Defendant's submission below, consisting largely if not exclusively of "unconfirmed" hearsay evidence as to the cause of the fire, was insufficient to satisfy its initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In any event, the record, as a whole, including the Fire Department's investigation report submitted by plaintiff, raises several questions of fact, including, but not limited to, whether defendant provided smoke detectors in the relevant apartment as required (see, Administrative Code of the City of New York § 27-2045[b]) or took reasonable steps to abate the "untidy" and cramped apartment condition of which its principal admittedly was aware and, if it did neither, whether any such breach substantially contributed to the property damage claimed by plaintiff (see, Baker v Riverhouse Realty Co., 300 AD2d 214 [2002]; cf., Fairclough [*2]v 679 Magenta LLC, ___AD2d___, 765 NYS2d 623 [2003]).

We have considered and rejected defendant's remaining arguments.

This constitutes the decision and order of the court.