Excelsior Insurance v. Auburn Local Development Corp. , 741 N.Y.S.2d 632 ( 2002 )

—Appeal from an order of Supreme Court, Cayuga County (Contiguglia, J.), entered February 6, 2001, which denied plaintiff’s motion for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this subrogation action seeking recovery of $175,000 that it paid to its insured for water, smoke and loss of use damages resulting from a fire in an adjoining building owned by defendant. Plaintiff alleged that the fire was caused by arson and that the damages to the building of plaintiffs insured resulted from defendant’s negligence. According to plaintiff, defendant’s building was in a state of disrepair and in violation of building codes, contained flammable debris and was not adequately secured to minimize the risk of criminal entry. Supreme Court properly denied plaintiffs motion for partial summary judgment. Although plaintiff met its initial burden by establishing its entitlement to judgment as a matter of law, defendant raised triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Defendant submitted evidence establishing that the alleged code violations had been addressed and remedied, that most of the debris in the building had been removed, and that the building was reasonably secure. Moreover, defendant established that the alleged fire hazard resulted from the design of the building rather than any negligence of defendant. Defendant also raised an issue of fact whether the arson was an unforeseeable criminal act of a third party (see Iannelli v Powers, 114 AD2d 157, 161-162, lv denied 68 NY2d 604). Present—Pigott, Jr., P.J., Hayes, Burns, Gorski and Lawton, JJ.