Opinion
01-26-2017
DANI II, INC., Plaintiff–Respondent, v. 101 DUPONT LLC, et al., Defendants–Appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellants. Kudman Trachten Aloe LLP, New York (Paul H. Aloe of counsel), for respondent.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellants.
Kudman Trachten Aloe LLP, New York (Paul H. Aloe of counsel), for respondent.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 30, 2015, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the claims for damages incurred to plaintiff's business post-Super Storm Sandy, unanimously affirmed, with costs.
Assuming, arguendo, that defendants established prima facie that plaintiff's alleged losses were proximately caused by an act of God with no contributing negligence on their part (see Prashant Enters. v. State of New York, 206 A.D.2d 729, 730–731, 614 N.Y.S.2d 653 [3d Dept.1994] ), plaintiff's evidence in opposition raises issues of fact whether defendants adequately responded to the prompt notice they were given that the storm had blown away part of the roof of their commercial building, exposing the tenant spaces therein to significant water accumulation and damage, and whether the alleged inadequate action by defendants amounted to negligent conduct that proximately caused the additional damages alleged by plaintiff (see
Michaels v. New York Cent. R.R. Co., 30 N.Y. 564, 571 [1864] ; see also Birner v. Bickford's, Inc., 280 App.Div. 911, 115 N.Y.S.2d 825 [1st Dept.1952], affd. 305 N.Y. 664, 112 N.E.2d 764 [1953] ).
We have considered defendants' remaining arguments and find them unavailing.
ACOSTA, J.P., MAZZARELLI, FEINMAN, WEBBER, JJ., concur.