Opinion
October 24, 1995
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
Summary judgment was properly denied in view of the existence of triable issues of fact.
Plaintiff occupies a cooperative apartment in a building owned by defendant. She returned from vacation to find her living room filled with a cloud of steam, which had damaged or destroyed works of art and furniture. In opposition to defendant landlord's motion for summary judgment, plaintiff submitted two affidavits from experienced art and furniture restorers that the damage was not caused by normal atmospheric or weather conditions, and a report from an engineer who had inspected the premises pointing to a recently repaired living room radiator as the most probable cause of the damage. Plaintiff's inability to locate the engineer in order to put his observations and conclusions in affidavit form was properly accepted by the court as a reasonable excuse for plaintiff's failure to submit that proof in admissible form ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Since the landlord's repair of the heating system may have created the defect, proof of notice thereof to the landlord is not required at this juncture to avert dismissal.
Concur — Rosenberger, J.P., Rubin, Ross, Nardelli and Mazzarelli, JJ.