Summary
stating that contentions raised for the first time in reply papers are properly not considered
Summary of this case from Wegman v. AltieriOpinion
2015-10-9
Tyler BULLUCK, Plaintiff–Respondent, v. Maryanne E. FIELDS, Defendant–Appellant.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J. Krogman Daum of Counsel), for Defendant–Appellant. Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Plaintiff–Respondent.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J. Krogman Daum of Counsel), for Defendant–Appellant. Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he sustained in a fire at defendant's residence. Plaintiff alleges that his injuries were caused by the negligence of defendant in failing to maintain functional, properly placed smoke detectors and in maintaining faulty electrical wiring.
Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Even assuming, arguendo, that defendant met her initial burden of establishing that she had installed smoke detectors in the residence ( see Verizon N.Y., Inc. v. Garvin, 13 N.Y.3d 851, 852, 891 N.Y.S.2d 686, 920 N.E.2d 90; see generallyCPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), we conclude that there are triable issues of fact whether those smoke detectors were functioning properly on the night of the fire ( see Pierre–Louis v. DeLonghi Am., Inc., 66 A.D.3d 857, 858, 888 N.Y.S.2d 100; see generally McKnight v. Coppola, 113 A.D.3d 1087, 1087–1088, 978 N.Y.S.2d 562), and whether “a properly positioned smoke detector would have given adequate warning of fire” to plaintiff (Lein v. Czaplinski, 106 A.D.2d 723, 725, 484 N.Y.S.2d 154). We further conclude that there are triable issues of fact whether the alleged failure of the smoke detectors to function properly caused or contributed to plaintiff's injuries ( see Hanes v. Narracci, 113 A.D.3d 1125, 1126, 977 N.Y.S.2d 656; see also Foreman v. Coyne Textile Servs. of Buffalo, 284 A.D.2d 912, 912, 726 N.Y.S.2d 514), and whether the fire was the result of defendant's negligence in maintaining a dangerous condition at her residence, i.e., faulty electrical wiring in the room where the fire originated ( see generally New York Mun. Ins. Reciprocal v. Casella Constr., Inc., 105 A.D.3d 1440, 1441, 964 N.Y.S.2d 370). Finally, the court properly declined to consider contentions raised by defendant for the first time in her reply papers ( see Jackson v. Vatter, 121 A.D.3d 1588, 1589, 994 N.Y.S.2d 222).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.