I.BACKGROUND

Plaintiffs sue to recover for defendants' negligence that caused damage to plaintiffs' premises at 107 East Broadway and 93 Henry Street in New York County. Plaintiffs claim Hong Kong Supermarket, Inc., a tenant of the building at 109 East Broadway, adjacent to 107 East Broadway and 93 Henry Street, and co-defendant owner of the building, PCK Realty, Inc., created conditions in their building that caused a fire to spread there May 14, 2009, leading to their building's collapse. The collapse of the building at 109 East Broadway in turn necessitated the demolition of the premises at 107 East Broadway. The premises at 93 Henry Street sustained damage from smoke and water.

Hong Kong Supermarket moves for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b). For the reasons explained below, the court denies Hong Kong Supermarket's motion.

To obtain summary judgment, Hong Kong Supermarket must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 (2008); JMD Holding Corp. v. Congress [*2]Fin. Corp., 4 NY3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). Only if Hong Kong Supermarket satisfies this standard, does the burden shift to plaintiffs to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 NY3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004). In evaluating the evidence for purposes of Hong Kong Supermarket's motion, the court construes the evidence in the light most favorable to plaintiffs. Vega v. Restani Constr. Corp., 18 NY3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004). If Hong Kong Supermarket fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in plaintiffs' opposition. Vega v. Restani Constr. Corp., 18 NY3d at 503; JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d at 384.

Hong Kong Supermarket, supported by PCK Realty, insists on entitlement to summary judgment because plaintiffs have produced no evidence of Hong Kong Supermarket's negligence in causing the fire to ignite or spread so as to affect plaintiffs' premises. Contrary to defendants' contention, plaintiffs' failure to produce evidence of defendants' negligence does not alter Hong Kong Supermarket's burden upon its summary judgment motion. Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 AD3d 546, 547 (1st Dep't 2010). Defendants may not obtain summary judgment merely by pointing to the gaps in plaintiffs' evidence. Coastal Sheet Metal Corp. v. Martin Assoc., Inc., 63 AD3d 617, 618 (1st Dep't 2009); Bryan v. 250 Church Assoc., LLC, 60 AD3d 578, 578 (1st Dep't 2009); Torres v. Industrial Container, 305 AD2d 136, 136 (1st Dep't 2003); Deutsche Bank Natl Trust Co. v. Spanos, 102 AD3d 909, 911 (2d Dep't 2013).

A.Hong Kong Supermarket's Expert Evidence

Hong Kong Supermarket relies on a New York City Fire Department report dated July 6, 2009, which the parties at oral argument June 27, 2013, stipulated to be authenticated and admissible for purposes of determining this motion for summary judgment. Hong Kong Supermarket also relies on an affidavit dated March 12, 2013, by William Hayden, a fire and explosion investigation expert. Hayden recites the principles for determining the cause of a fire, although not specifically its spread, and concludes that: "Any determination of a fire's cause should be based on evidence rather than on the absence of evidence." Aff. of Michael Case Ex. A, at 4. Since Hayden was unaware of the evidence required to determine the cause of the fire or its spread, he concludes that the cause may not be determined.

Hayden also comments that nothing he reviewed indicated that Hong Kong Supermarket's leased premises violated any safety statutes or regulations, required further fire safety systems, or were not being maintained. This comment reflects plaintiffs' burden at trial, not defendants' burden to obtain summary judgment as discussed above, and, as to whether defendants violated a statute or regulation, usurps the court's determination for summary judgment and the factfinder's determination at trial. Buchholz v. Trump 767 Fifth, 5 NY3d 1, 7 (2005); Lopez v. Chan, 102 AD3d 625, 626 (1st Dep't 2013); Reyes v. Morton Williams Associated Supermarkets, Inc., 50 AD3d 496, 497-98 (1st Dep't 2008). See Burtman v. Brown, 97 AD3d 156, 161 (1st Dep't 2012); Dallas-Stephenson v. Waisman, 39 AD3d 303, 307 (1st Dep't 2007).

To be admissible, an expert's opinion must be based on facts in the record or personally known to the expert. Hambsch v. New York City Tr. Auth., 63 NY2d 723, 725 (1984); Belmer v. HHM Assoc., Inc., 101 AD3d 526, 529 (1st Dep't 2012). See San Andres v. 1254 Sherman Ave. Corp., 94 AD3d 590, 592 (1st Dep't 2012); Goldin v. Riverbay Corp., 67 AD3d 489, 490 (1st Dep't 2009). Under the exception for professionally reliable material, the expert may rely on evidence that has not been admitted but is accepted as reliable in the expert's profession. Hinlicky v. Dreyfuss, 6 NY3d 636, 648 (2006); Romano v. Stanley, 90 NY2d 444, 452 (1997); Belmer v. HHM Assoc., Inc., 101 AD3d at 529.

In an appendix to his affidavit, Hayden identifies the materials he reviewed in reaching his conclusions as including [*3]"photographs, files, documents, records and other discovery materials exchanged in the captioned matter and related matters"; "deposition testimony of the witnesses in the captioned matters"; and "exhibits produced to date." Case Aff. Ex. A app. 2. Hayden's affidavit dated April 23, 2013, in reply, more specifically lists the evidence he reviewed, Case Reply Aff. Ex. P, but still does not identify which factual sources he relies on to support his conclusions, Monge v. Queens-Long Is. Med. Group, P.C., 55 AD3d 341 (1st Dep't 2008); Butler-Francis v. New York City Hous. Auth., 38 AD3d 433, 434 (1st Dep't 2007), nor satisfy the test for professional reliability. Romano v. Stanley, 90 NY2d at 452; Hambsch v. New York City Tr. Auth., 63 NY2d at 725-26; Kovacev v. Ferreira Bros. Contr., Co., 9 AD3d 253 (1st Dep't 2004); D'Andraia v. Pesce, 103 AD3d 770, 771-72 (2d Dep't 2013).

Several of the sources of factual information Hayden reviewed also are not admissible evidence in the record. Ainetchi v. 500 W. End LLC, 51 AD3d 513, 515 (1st Dep't 2008); Browder v. New York City Health & Hosps. Corp., 37 AD3d 375, 376 (1st Dep't 2007). The records from the New York City Department of Buildings and other reports are neither certified as public records, e.g., C.P.L.R. §§ 4520, 4540(a) and (b); Murray v. City of New York, 74 AD3d 550, 550 (1st Dep't 2010); Rivera v. GT Acquisition 1 Corp., 72 AD3d 525, 526 (1st Dep't 2010); Coleman v. Maclas, 61 AD3d 569, 569 (1st Dep't 2009); People v. Smith, 258 AD2d 245, 249-50 (4th Dep't 1999), nor accompanied by an affidavit or certification laying a foundation for the documents as business records or another exception to the rule against hearsay. People v. Ramos, 13 NY3d 914, 915 (2010); People v. Vargas, 99 AD3d 481, 481 (1st Dep't 2012); IRB-Brasil Resseguros S.A. v. Portobello Intl. Ltd., 84 AD3d 637, 637-38 (1st Dep't 2011); Babikian v. Nikki Midtown, LLC, 60 AD3d 470, 471 (1st Dep't 2009).

Hayden's conclusion that the leased premises required no fire safety systems other than the systems already in place, absent any admissible evidence of the systems in place, lacks a factual basis and therefore is merely speculative. Graham v. New York City Hous. Auth., 42 AD3d 323, 325 (1st Dep't 2007); Butler-Francis v. New York City Hous. Auth., 38 AD3d at 434; Public Serv. Mut. Ins. Co. v. 99¢ Plus of Fifth Ave., 5 AD3d 276, 277 (1st Dep't 2004); Andrews v. New York City Hous. Auth., 66 AD3d 619, 620 (2d Dep't 2009). Insofar as Hayden concludes that the premises were being maintained in a safe condition, absent any admissible evidence of the condition in which the premises were maintained, such a comment is similarly bereft of a factual basis and speculative. Kalish v. HEI Hospitality, LLC, 114 AD3d 444, 446 (1st Dep't 2014); Santiago v. City of New York, 61 AD3d 574, 575 (1st Dep't 2009).

While Hayden also relies on the July 2009 Fire Department report, which the parties stipulated would be considered admissible, the report's findings, that the fire started in the west area of the first floor and that the cause of the fire was [*4]not ascertained because of the building's collapse, simply support Hayden's conclusion that the fire's cause was not ascertainable. See Marsden v. EMLT Realty Corp., 304 AD2d 417, 418 (1st Dep't 2003). Thus Hayden's affidavit establishes nothing more than the lack of evidence regarding the cause of the fire or its spread.

B.Hong Kong Supermarket's Other Evidence

Hong Kong Supermarket otherwise fails to demonstrate its lack of negligence in causing the fire to ignite or spread. Hong Kong Supermarket presents no evidence that the actions or omissions of the supermarket's officers and employees did not contribute to the ignition or spread of the fire. See Graham v. New York City Hous. Auth., 42 AD3d at 324; Butler-Francis v. New York City Hous. Auth., 38 AD3d at 433-34; Zvinys v. Richfield Inv. Co., 25 AD3d 358, 359 (1st Dep't 2006); Colon v. H & B Plumbing & Heating, 305 AD2d 235, 236 (1st Dep't 2003). Assuming an electrical system malfunction caused the fire, as various witnesses' deposition testimony suggests, for example, Hong Kong Supermarket presents no evidence that the supermarket did not install or maintain the leased premises' electrical system so as to create or contribute to its malfunction. See Robertson v. New York City Hous. Auth., 58 AD3d 535, 536 (1st Dep't 2009); Butler-Francis v. New York City Hous. Auth., 38 AD3d at 434.

The testimony of Sandy Wong, Hong Kong Supermarket's district manager, that he lacked notice of any malfunction or hazardous condition in the electrical system, fails to demonstrate that the supermarket did not create an electrical malfunction or hazard. Since no evidence actually establishes that the cause of the fire was the electrical system, his testimony further fails to demonstrate that the supermarket did not create or contribute to another fire hazard in the premises. Nor does Hong Kong Supermarket demonstrate its lack of negligence with any evidence that the supermarket installed or maintained working fire safety equipment, such as required fire stopping and sprinklers, to prevent the ignition or spread of a fire. Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 AD3d at 547.

The testimony of plaintiff Ho Yin Wong, plaintiff A & M East Broadway LLC's manager and one of its owners or members, that he did not know the cause of the fire, like the Fire Department report's conclusion that the fire's cause was not ascertained, only establishes that the cause was unknown, not the absence of Hong Kong Supermarket's negligence as a cause. Finally, the testimony of Ping Kong, PCK Realty's president, and Clara Kong, its secretary, that PCK Realty presents to support its co-defendant's motion, does not bear on Hong Kong Supermarket's liability.

In supporting Hong Kong Supermarket's motion for summary judgment, PCK Realty seeks dismissal of the complaint, but does [*5]not move for that relief, relying instead on the court's authority to search the record and grant summary judgment to a non-moving party. C.P.L.R. § 3212(b). Like Hong Kong Supermarket, PCK Realty merely points to the absence of evidence that, as the owner of the 109 East Broadway building, it was negligent and fails to present any evidence that it was not negligent in causing the fire to ignite or spread. Nor does PCK Realty present any basis for dismissing Hong Kong Supermarket's cross-claim for indemnification. Therefore, even upon a search of the record, there is no basis to grant summary judgment to PCK Realty dismissing the claims against it. American Tr. Ins. Co. v. Marte-Rosario, 111 AD3d 442, 443 (1st Dep't 2013); Castlepoint Ins. Co. v. Moore, 109 AD3d 718, 719 (1st Dep't 2013).

Since defendant Hong Kong Supermarket, Inc., fails to meet its burden in seeking summary judgment through admissible evidence as required, the court denies this defendant's motion for summary judgment. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 NY3d at 503; JMD Holding Corp. v. Congress Fin. Corp, 4 NY3d at 384; Seleznyov v. New York City Tr. Auth., 113 AD3d 497, 498 (1st Dep't 2014); Scafe v. Schindler El. Corp., 111 AD3d 556, 557 (1st Dep't 2013). Although its notice of motion does not mention summary judgment on or dismissal of any cross-claims by defendant PCK Realty, Inc., Hong Kong Supermarket seeks this relief as well as dismissal of the complaint. Yet no party presents PCK Realty's answer interposing cross-claims, nor does Hong Kong Supermarket present any basis for dismissing any cross-claim distinct from defendants' inadequate bases for dismissing the complaint. Therefore, insofar as any cross-claims by PCK Realty are unrelated to plaintiffs' claims, the court may not search the record to grant summary judgment dismissing PCK Realty's cross-claims. Johnson v. Chelsea Grand E., LLC, 124 AD3d 542, 543 (1st Dep't 2015); Castlepoint Ins. Co. v. Moore, 109 AD3d at 719; Horst v. Brown, 72 AD3d 434, 435 (1st Dep't 2010); Baseball Off. of Commr. v. Marsh & McLennan, 295 AD2d 73, 82 (1st Dep't 2002).

As set forth above, the court also denies summary judgment to defendant PCK Realty, Inc., dismissing the claims against it based on a search of the record. C.P.L.R. § 3212(b). This decision constitutes the court's order.