Opinion
May 26, 1987
Appeal from the Supreme Court, Queens County (Sacks, J.).
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion is denied.
On January 9, 1984, the defendant installed an electric heating system consisting of a ceiling-suspended unit heater, and a wall-mounted line voltage thermostat in the insured premises, a women's apparel store. On the evening of December 24, 1984, a fire broke out in the store. In the opinion of the plaintiff's expert, the defendant's misuse of a low-current-rated line voltage thermostat was the proximate cause of the fire. The defendant's expert, on the other hand, concluded, upon an examination of the thermostat involved in the fire, that the thermostat had not caused the fire. Rather, the expert determined that the thermostat had been damaged by the fire.
Inasmuch as the obligation of the court on a motion for summary judgment is issue finding rather than issue determination (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, rearg denied 3 N.Y.2d 941), we conclude that the Supreme Court erred in determining the cause of the fire and thereupon granting the plaintiff's motion. In view of the existence of disputed issues of fact, the case must proceed to trial. Weinstein, J.P., Eiber, Spatt and Sullivan, JJ., concur.