Opinion
5657
December 18, 2001.
Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about September 15, 2000, as amended by order entered September 26, 2000, which, in an action for personal injuries sustained when a cylinder containing propane gas attached to the stove in plaintiff's apartment exploded, insofar as appealed from, denied defendant-appellant distributor's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Murray S. Axelrod, for plaintiff-respondent.
Robert J. Ellsworth, for defendant-appellant.
Before: Lerner, J.P., Saxe, Buckley, Friedman, Marlow, JJ.
Appellant's argument that the action should be dismissed as against it because of plaintiff's failure to preserve the allegedly defective cylinder was properly rejected upon a record establishing that the cylinder was discarded or destroyed not by plaintiff but by the Police or Fire Department (see, Maliszewska v. Potamlin N.Y. LP Mitsubishi Sterling, 281 A.D.2d 353) and that plaintiff's counsel unsuccessfully attempted to retrieve same. Appellant's other argument that the action should be dismissed because plaintiff's storage of more than one pound of propane in his apartment was illegal (3 RCNY former § 25-11[b][8], now § 25-01[c][5] prohibiting containers of more 16.4 ounces) was properly rejected on the ground that the use of propane gas in City apartments is an activity regulated, not prohibited. Accordingly, any unlawful conduct by plaintiff in bringing too large a cylinder into his apartment goes to the issue of comparative negligence (see, Barker v. Kallash, 63 N.Y.2d 19, 24).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.