Opinion
2014-04-29
ADMIRAL INDEMNITY COMPANY as subrogee of Woodbrooke Estates Condominium Section IIA, Plaintiff–Appellant, v. Marc CHERNOFF, et al., Defendants, Electrolux Home Products, Inc., doing business as, Kenmore, Defendant–Respondent.
Wenig & Wenig, New York (Alan Wenig of counsel), for appellant. Hodges, Walsh, Messmer & Moroknek, LLP, White Plains (Sanford G. Jacobs of counsel), for respondent.
Wenig & Wenig, New York (Alan Wenig of counsel), for appellant. Hodges, Walsh, Messmer & Moroknek, LLP, White Plains (Sanford G. Jacobs of counsel), for respondent.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, RICHTER, CLARK, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered December 18, 2012, which, to the extent appealed from, upon a search of the record, awarded defendant Electrolux Home Products, Inc. summary judgment dismissing the negligence cause of action as against it, unanimously affirmed, without costs.
The record evidence, i.e. the Electrolux instruction manual as to the proper way to clean lint out of the clothes dryer, the testimony of Electrolux's safety engineer as to the way consumers should clean lint out of the dryer, and the testimony of unit owners Marc Chernoff and Laura Chernoff that they did not follow the instructions as to cleaning lint out of the dryer, demonstrates conclusively that Electrolux was not negligent in connection with the dryer fire that occurred in the Chernoffs' unit due to the presence of lint, causing damage to condominium association property. Thus, the motion court correctly awarded Electrolux summary judgment dismissing the negligence cause of action as against it upon a search of the record ( seeCPLR 3212[b]; McDougal v. Apple Bank for Sav., 200 A.D.2d 418, 419, 606 N.Y.S.2d 215 [1st Dept.1994] ).
The motion court's finding that there had previously been six dryer fires at the condominium is supported by the property manager's testimony and a letter from the condominium board of directors to the unit owners stating that the dryer fire in the Chernoffs' unit “marks 7 units in the last 5 years that have sustained damage due to dryer fires.”