Farrah v. Brooklyn Union Gas Co. , 669 N.Y.S.2d 921 ( 1998 )

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Garson, J.), dated June 10, 1997, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

On September 5, 1995, during the course of his employment with the third-party defendant A & M Woodworking, Inc., the plaintiff sustained serious personal injuries as a result of a fire in an apartment in Brooklyn. At the time of the occurrence the plaintiff was in the process of adhering formica to kitchen wall cabinets in the subject apartment, and was using a highly flammable contact cement. Earlier on the day of the incident, a service representative of the defendant Brooklyn Union Gas Company had been at the premises inspecting the same kitchen area in connection with a complaint concerning a gas odor, and it was determined that there was no gas leak at the premises.

The plaintiff commenced this action asserting that the defendant was negligent in igniting the gas pilot light of the stove in the kitchen, and leaving it on after conducting the inspection. The defendant moved for summary judgment contending that the sole cause of the fire was the negligence of the plaintiff and a co-worker in working with flammable material near an open flame.

The Supreme Court improperly denied the defendant’s motion for summary judgment. There exist no triable issues of fact (see, CPLR 3212 [b]) as to whether negligence on its part was a proximate cause of the accident in which the plaintiff was allegedly injured.

Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.