| Public Serv. Mut. Ins. Co. v 99 Plus of Fifth Ave. |
| 2004 NY Slip Op 02131 [5 AD3d 276] |
| March 23, 2004 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Public Service Mutual Insurance Company, Appellant, v 99 Plus of Fifth Avenue, Inc., Defendant, and 5510 Fifth Avenue Discount Corp., Respondent. |
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Order, Supreme Court, New York County (Marcy Friedman, J.), entered August 21, 2003, which, in this property damage subrogation action, granted the motion of defendant 5510 5th Avenue Discount Corp. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff failed to raise an issue of fact with respect to the cause of the fire. Its expert's report and affidavit to the effect that an employee of defendant 99 Plus had caused the fire while smoking in the stairwell 10 minutes before the fire started were based upon pure speculation (see Tower Ins. Co. of N.Y. v M.B.G. Inc., 288 AD2d 69 [2001]).
We have considered plaintiff's other claims and find them to be without merit. Concur—Nardelli, J.P., Mazzarelli, Saxe and Friedman, JJ.