Opinion
July 3, 1978
In a negligence action to recover damages for personal injuries, etc., defendant third-party plaintiff Somco Fuel, Inc., and third-party defendant 163 Eastern Parkway Realty Corp. appeal from an interlocutory judgment of the Supreme Court, Kings County, dated August 16, 1977, which, inter alia, is in favor of plaintiffs and against them, upon a jury verdict. Interlocutory judgment modified, on the law and the facts, by deleting from the first decretal paragraph thereof all language following the words "against the defendant Somco Fuel Inc." and substituting therefor a provision dismissing the third-party complaint. As so modified, interlocutory judgment affirmed, with costs to plaintiffs payable by defendant Somco Fuel, Inc. There was ample evidence presented to support the jury's finding that the explosion which caused the injuries to plaintiff Anthony Esteves was a result of the negligent installation of the oil burner's safety devices by Somco Fuel, Inc. However, the negligence of 163 Eastern Parkway Realty Corp., landlord of the building in which the oil burner was located, was not established. No act of omission or commission on its part was shown to have been an actual cause of this explosion. Hopkins, J.P., Martuscello, Shapiro and O'Connor, JJ., concur.