GIACCIO v. 179 TENANTS CORP (2007)

Order, Supreme Court, New York County (Marcy Friedman, J.), entered June 21, 2005, which, insofar as appealed from as limited by the briefs, denied defendant 179 Tenants Corp.'s motion for partial summary judgment dismissing the first cause of action sounding in negligence, unanimously reversed, on the law, without costs, the motion granted and the matter remanded for trial on the remaining causes of action.

 Plaintiff contends that heat produced over a long period by a hot water pipe under her living room floor caused the wood sub-flooring to convert to pyrophoric carbon and spontaneously ignite, destroying her apartment.   However, given the lack of complaints about heat or burning smells emanating from the floors above the pipes, or evidence of any pyrophoric carbon found under the floorwood, in any of the other apartments on plaintiff's floor, plaintiff's prior complaints of fluctuating water temperatures could not have reasonably alerted defendant to the possibility of an unrelated fire hazard due to pyrolysis (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).   Absent actual or constructive notice of the latent defect, defendant had no duty to remove the floor wood “to discover what lay beneath it” (Lee v. Bethel First Pentecostal Church of Am., 304 A.D.2d 798, 800, 762 N.Y.S.2d 80 [2003] ).   Nor does the doctrine of res ipsa loquitur avail plaintiff to raise an inference of negligence where fire and incident reports and expert reports are conflicting as to how and where the fire started (see Shaw v. Bronfman, 284 A.D.2d 267, 268, 727 N.Y.S.2d 428 [2001], lv. dismissed 97 N.Y.2d 725, 740 N.Y.S.2d 697, 767 N.E.2d 154 [2002] ).   Indeed, plaintiff's evidence does not even show that the fire was of a type that does not occur in the absence of negligence (see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997];  Shaw, 284 A.D.2d at 268, 727 N.Y.S.2d 428).   In view of the foregoing, we need not consider defendant's remaining contention.

The Decision and Order of this Court entered herein on June 21, 2007 is hereby recalled and vacated (see M-3739 decided simultaneously herewith).