MERINO v. LEFT NINE INC (1999)

Plaintiff is the owner of a building in Niagara Falls that was damaged in a fire.   He brought this action alleging that the fire was caused by the negligence of defendant, his tenant, in using a box fan to cool a compressor in the basement.   At the nonjury trial, an employee of defendant testified that the fan had been left on continuously for several weeks.   Plaintiff's expert testified that the fan was the source of the fire but was unable to specify why the fan overheated.   There was no proof that the fan, which was new when it was installed that summer, malfunctioned.

 Defendant contends that plaintiff failed to meet his burden of proof on the issue of causation.   We disagree.   Plaintiff was not “required to rule out all plausible variables and factors that could have caused or contributed to the accident” (Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758).  “Plaintiff's burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical ‘to enable the jury to reach its verdict based not upon speculation, but upon logical inferences to be drawn from the evidence’ ” (Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 549, 684 N.Y.S.2d 139, 706 N.E.2d 1163, quoting Schneider v. Highway Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221).   There was sufficient evidence for Supreme Court to conclude that defendant's negligence was a substantial cause of the fire (see, Sanders v. Bass, 235 A.D.2d 255, 652 N.Y.S.2d 31 [prima facie case of negligence established by proof that fire was caused by a box fan left on, unattended, for one weekend] ).

We reject defendant's contention that the court erroneously based its determination upon an alleged violation of 9 NYCRR 1163.11, which regulates electrical wiring and equipment.   Defendant's further contention that the court erred in not imposing sanctions because plaintiff lost certain evidence is not preserved for our review.

Judgment unanimously affirmed with costs.

MEMORANDUM: