Opinion
April 8, 1963
In a negligence action to recover damages for injury to property, the defendant H. Muehlstein Co., Inc., appeals from an order of the Supreme Court, Kings County, dated August 16, 1962, which denied its motion, made pursuant to section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice, for judgment dismissing the complaint as against it. Order affirmed, with $10 costs and disbursements. Insofar as the defendant Muehlstein is concerned, the complaint alleges in substance: (a) that said defendant was the shipper and owner of a consignment of scrap foam rubber, a highly inflammable substance, which was delivered to the defendant Luckenbach's pier so defectively packed that a quantity thereof spilled and was spread about the pier; (b) that the defendant Atlantic, in the course of repair work for Luckenbach, negligently used an oxyacetylene torch so as to set fire to said foam rubber; (c) that the fire spread to explosive material stored on the pier; and (d) that plaintiffs' properties were damaged by the resulting fire and explosion. In our opinion, it may not be held, as a matter of law, that the risk of fire and explosion was not reasonably to be perceived, or that Muehlstein's negligence was not a proximate cause of the injury to plaintiffs' properties (cf. Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339; Lopez v. City of New York, 4 A.D.2d 48, affd. 4 N.Y.2d 738). Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.