Jolin Manufacturing Corp. v. Sbrocco , 20 Misc. 2d 179 ( 1959 )

Mario Pittoni, J.

The plaintiff moves for summary judgment against all the defendants and requests that the matter be set down for the assessment of plaintiff’s damages.

This is an action for damage to the plaintiff’s business caused by a fire claimed to have been negligently started by the defendants in the adjoining premises during the conduct of a business operated therein by the defendants. Defendant, East Second Corp. owned the building; and the defendants Sbrocco and Chiusano operated the business.

The plaintiff contends that the defendants negligently stored inflammable materials and failed to properly safeguard them, negligently ignited the materials, and negligently omitted to report promptly the fire to the fire department.

At the very outset there is an issue of fact as to whether the defendants promptly reported the fire.

As for the negligent storing of the inflammable materials, the negligent failure to take proper safeguards and the negligent causing of the fire, the only proof tending to show the cause of the fire is the affidavit of William Barry, a former employee of the defendants, from which it may be inferred that lacquer fumes were ignited by a spark when the electric motor of a compressor started up. Of course, the mere occurrence of a fire does not establish the defendants’ negligence. The examination before trial of the defendant Chiusano is used to establish the manner of storage of the paints and the lacquers, the use of exhaust fans, the presence of fire extinguishers, and other materials, all of which clearly establish at this time that the ease must be tried and cannot be determined on documents. This court cannot hold as a matter of law that negligence has or has not been established.

Motion for summary judgment is denied.