In this action for property damage, defendants 157-61 W. 105 Street Housing Development Corporation and Imani Management, Inc. move to dismiss the complaint pursuant to CPLR §§ 3211(a)(7) or 3212(b).^[FN1] For the following reasons, the motion is granted.

The instant motion raises the following question: Is a landlord liable for smoke and water damage caused to one tenant's property where the fire began in another apartment which was allegedly not equipped with a smoke detector?

On June 22, 2002, plaintiff owned Apartment 2EF at 161 West 105th Street in Manhattan and a fire broke out in the apartment of the upstairs neighbor, Ms. Perez, who resided in Apartment 3EF. According to the New York City Fire Department's ("FDNY") Fire and Incident Report, the fire originated from a candle in Ms. Perez's bedroom which set her bedding on fire. [*2]The fire spread throughout Ms. Perez's apartment, and plaintiff claims that it ^[FN2] caused extensive smoke and water damage in her apartment as well. Plaintiff alleges that defendants the owner and management company of the subject building were negligent in, inter alia, failing to install a smoke detector in Ms. Perez's apartment. Had there been a smoke detector, plaintiff claims, the Fire Department would have been notified sooner and would have arrived sooner. In that event, asserts plaintiff, the Fire Department would have found a smaller fire which would have caused less smoke damage and firefighters would have used less water to put the fire out, thereby causing less water damage.

There is conflicting evidence as to whether there was a smoke detector in Apartment 3EF on the date of the fire. Plaintiff submits uncontradicted proof that in 1987 the building was issued a violation for the lack of a smoke detector in Apartment 3EF. Although defendants show no evidence that the violation was cured as of record, they do submit a portion of the building superintendent's deposition transcript; he testified that he personally installed a smoke detector in Ms. Perez's apartment after the issuance of the 1987 violation but before the June 2002 fire. (Def. Exhibit F at 26.) Additionally, plaintiff submits FDNY's "Report Structural Fire" (also identified as a "BF-24") made after the fire. This report is ambiguous; on one hand, it seems to state that there were no detectors but on the other hand it notes one detector "for investigation." The deposition transcript of FDNY Fire Marshal Ernest Medaglia, who investigated the fire but who did not personally complete the BF-24 (and who stated that it was not a form he used in his job), could not explain this discrepancy.

It is well-settled that "[i]n deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, affording them the benefit of all reasonable inferences that can be drawn." Bogoraz v Simels, 11 Misc 3d 1083(A), *2, 819 NYS2d 846 [Sup Ct, NY County 2006] (quoting Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]). Seealso O'Sullivan v Presbyterian Hosp., 217 AD2d 98, 101, 634 NYS2d 101 [1st Dept 1995]. Plaintiff has proffered sufficient evidence to raise an issue of fact as to whether there was a smoke detector in Ms. Perez's apartment. In light of the parties' conflicting evidence on this

issue, the Court will view the evidence in plaintiff's favor and, for purposes of deciding this motion, will assume that there was no smoke detector in Ms. Perez's apartment.

In New York City, owners of residential buildings are obligated to install a working smoke detector in each dwelling unit. See New York City Administrative Code § 27-2045[a][1]. Assuming there was no smoke detector in Ms. Perez's apartment, defendants' violation of the City ordinance might be admissible as "some evidence of negligence" which could be considered by a jury if there were sufficient evidence on negligence to permit the case to proceed to trial. See Major v Waverly & Ogden, 7 NY2d 332, 336, 197 NYS2d 165 [1960]. However, there are two [*3]caveats to using violation of the City ordinance as evidence of negligence. First, if a statute or ordinance was designed to protect a particular class of people from a particular type of injury, then only individuals falling within that class and alleging that type of injury may bring a claim based upon a violation thereof. See Di Caprio v New York Cent. R.R. Co., 231 NY 94, 97, 131 NE 746 [1921]; Ayala v Hagemann, 186 Misc 2d 122, 123-25, 714 NYS2d 633 [Sup Ct, Richmond County 2000]; 79 NY Jur2d Negligence § 76. In other words, the person seeking redress must show that he or she "comes within the protective orbit of the [ordinance]." Lopes v Rostad, 45 NY2d 617, 623, 412 NYS2d 217 [1978]. In the Court's view, the ordinance requiring landlords to install smoke detectors in each dwelling unit is designed to protect the occupants from being injured in a fire. Its purpose is not to prevent damage to property not to the occupants' property and certainly not to neighbors' property. For this reason, defendants' assumed violation of section 27-2045[a][1] of the New York City Administrative Code cannot be a basis of recovery for plaintiff herein. As a neighbor claiming property damage, plaintiff cannot show that she comes within the protective purview of the City ordinance. See Lopes, 45 NY2d at 623; Di Caprio, 231 NY at 97.

Second, only where the violation is shown to be a proximate cause of the alleged injury should it be submitted to the jury. See Sheehan v City of New York, 40 NY2d 496, 501-02, 387 NYS2d 92 [1976]. "Proximate cause is no less essential an element of liability because the negligence charged is premised in part or in whole on a claim that a statute or ordinance . . . has been violated." Id. at 501. Here, even assuming that defendants failed to install a smoke detector in Ms. Perez's apartment as required by law, plaintiff's case must still fail because, as set forth below, there is insufficient evidence that the lack of a smoke detector proximately caused plaintiff's damages.

On the issue of proximate cause, plaintiff relies upon Fire Marshal Medaglia's deposition testimony, wherein he made the following general points: In his experience, the presence of a smoke detector has caused earlier detection of a fire. (EBT at 13.) Earlier detection does not always correlate with an earlier response by the Fire Department. (Id.) The sooner a fire is extinguished as opposed to merely detected the less damage it causes. (Id.) A smoke detector is specifically designed to give the occupants of the apartment a warning. (Id.) The Fire Department's recommendation is for occupants to get out when the smoke detector goes off. (Id. at 18.) Smoke detectors in New York City are generally self-contained, battery-powered units that are not connected in any way to the Fire Department. (Id. at 17.)

Significantly, in response to questioning about what someone would do once the smoke detector sounds, Fire Marshal Medaglia responded: "You know, they run the gamut, it's human behavior," (Id. at 18) and "In relation to the smoke detectors, it's a warning device, obviously, and again, there's no there's still no telling what the occupants may or may not do, whether they would respond, it's an assumption, and I couldn't make that." (Id. at 14.) Mr. Medaglia could not tell from the FDNY's records how long it took for the Fire Department to respond to the subject fire. (Id. at 18.) Nor could he ascertain how the Fire Department was notified of the fire. (Id. at 24.) At no point did Mr. Medaglia state or even imply that the absence of a smoke detector in [*4]Ms. Perez's apartment had any effect on when the Fire Department was notified, the length of the Fire Department's response time, or the degree of damage the fire caused.

The question before this Court is not whether the lack of a smoke detector might possibly have led to a delayed response and resulting wider spread of the fire that possibility certainly exists. The question is whether there is any evidence in this record that the alleged lack of a smoke detector actually had any effect on the damage caused by the fire. The Fire Marshal's testimony is simply insufficient to support plaintiff's theory of liability. Her theory is based upon a string of assumptions that there was a delay in the Fire Department being called, that the delayed notification of the Fire Department caused a delayed response, and that the delayed response resulted in more significant damage but there is not a single piece of evidence in the record before this Court to provide a factual basis for any of those assumptions.

The Court recognizes that there have been cases in which courts have allowed a jury to decide whether the lack of a smoke detector proximately caused the plaintiff's damages. Those cases, however, are distinguishable. For example, plaintiff relies on Lein v Czaplinski, 106 AD2d 723, 484 NYS2d 154 [3rd Dept 1984] in which the Third Department found that the plaintiff had "adduced sufficient evidence of proximate cause" that the landlord's failure to install a smoke detector caused the alleged injury. Id. at 725. Among the evidence the court recounted was the testimony of the coroner that the decedent had apparently awakened and tried to escape but was by then too overcome by smoke to do so. Id. Similarly, in other cases which were permitted to proceed to trial, the courts explicitly found that the plaintiff had presented adequate proof on the issue of proximate cause. See, e.g., Salmon v Wendell Terrace Owners Corp., 5 AD3d 372, 774 NYS2d 54 [2d Dept 2004]; Nguyen v Prime Residential Bronx R & R V, LLC, 307 AD2d 201, 762 NYS2d 601 [1st Dept 2003]; Baez v JMM Audubon, Inc., NYLJ, Mar. 30, 2005, at 22, col 3. In contrast, the Court finds that insufficient evidence on causation has been presented here.

It is also significant that the instant case seeks only to recover for property damage, and only by a neighbor, whereas Lein and the above-cited cases all involved personal injuries or death of an occupant of the apartment in which the fire began. See Salmon, supra ; Nguyen, supra ; Baez, supra . See also Baker v Riverhouse Realty Co., 300 AD2d 214, 751 NYS2d 361 [1st Dept 2002]. "[T]he purpose of a smoke detector is to assure safe egress from a building imperiled by fire." Alloway v 715 Riverside Drive LLC, 298 AD2d 148, 748 NYS2d 6 [1st Dept 2002]. Indeed, because a smoke detector is a warning device designed to alert the dwelling's occupants to get out, it follows that the absence of a smoke detector may be seen as a cause of the occupant's bodily injuries because he or she did not have the benefit of such a warning and could not get out in time. Even in such cases, however, causation must be established.

The foregoing analysis is consistent with Acevedo v Audubon Management, Inc., 280 AD2d 91, 721 NYS2d 332 [1st Dept 2001], in which the First Department expressly distinguished Lein v Czaplinski. In Acevedo, the court found that the plaintiff "simply relied on the speculative assumption that a smoke detector possibly could have prevented the deceased's [*5]injuries and death. Given the state of the record, no triable issue of fact exists as to this issue." Id. at 97. Similarly, in State Farm Ins. Co. v Nichols, 34 AD3d 994, 996, 825 NYS2d 156 [3rd Dept 2006], the court rejected the plaintiff-insurance company's argument that the lack of operable smoke detectors in the building where the fire originated was a substantial factor in causing the fire to spread to the plaintiff's insured's building. "Noticeably absent from [plaintiff's expert's] affidavit is any indication of an opinion as to when the fire started, the rate at which it spread, the point in time at which an operating smoke detector would have alerted [the person who ultimately called the Fire Department] or a passerby to the presence of the fire and/or how much sooner the [F]ire [D]epartment could have been alerted and responded to the fire had a such a smoke detector operated as intended."Id. at 997. See also Martinez v Avila, 2001 NY Slip Op 40228(U), 2001 WL 1470127 [App Term, 1st Dept] (plaintiff raised only a "shadowy semblance of an issue" as to effect of the inoperable smoke detectors); Downey v The Beatrice Epstein Family Partnership, LP, 12 Misc 3d 1193(A), *5, 824 NYS2d 753 [Sup Ct, Kings County 2006] (plaintiff relied upon "mere speculation" that alleged lack of smoke detectors led to his injury).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]. If the moving party sustains its burden, the opposing party must submit evidence of a triable issue of fact in order to defeat the motion. See Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]. The Court finds that defendants have made out a prima facie case for entitlement to judgment as a matter of law.

It is well-settled that "mere conclusions, speculation and unsupported allegations are insufficient to defeat a motion for summary relief." Castro v New York Univ., 5 AD3d 135, 136, 773 NYS2d 29, 30 [1st Dept 2004]. See also Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 714, 800 NYS2d 676, 679 [1st Dept 2005]. The law requires a party opposing summary judgment to "lay bare" its proof to demonstrate the existence of a genuine triable issue of fact. See AFA Protective Systems, Inc. v Kaufman Eighth Ave. Assocs., 251 AD2d 127, 672 NYS2d 738 [1st Dept 1998]; State v Metz, 241 AD2d 192, 198, 671 NYS2d 79, 82 [1st Dept 1998]. Assumptions and speculation notwithstanding, plaintiff has simply not come forward with sufficient proof on the issue of causation to sustain her claim against defendants. Therefore, defendants' motion must be granted.

Based upon the foregoing, defendant's motion for summary judgment is granted, and the complaint is hereby dismissed.

This is the Decision and Order of the Court.

Dated:_________________

[*6]ARLENE P. BLUTH

Judge, Civil Court

ASN by________ on _________