TOWER INSURANCE COMPANY OF NEW YORK v. INC (2001)

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about September 1, 2000, which, in an action by the insurer of a building owner in subrogation against the occupants of a store in the building that was the source of a fire, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff claims that an issue of fact exists as to whether defendants' negligence caused the fire.   It is argued that such issue is raised by evidence that the fire started in a back room of the store under defendants' exclusive control, that the individual defendant, the store's owner and manager, admittedly smoked a pack of cigarettes a day in the back room, and that the Suffolk County Police Department, which investigated the accident, reported that while the cause of the fire could not be determined, “it could have been caused by an errant lit cigarette left on the shelf in the back room”.   However, such evidence is insufficient to raise the issue of fact claimed.   To infer that defendant caused the fire because he normally smoked in the area where the fire started is to indulge in unwarranted speculation (see, Matter of Burton v. Broadcast Music, 31 A.D.2d 557, 294 N.Y.S.2d 406, affd. 24 N.Y.2d 1016, 302 N.Y.S.2d 839, 250 N.E.2d 243;  Broder v. MacNeil, 232 A.D.2d 163, 166, 647 N.Y.S.2d 743, lv. denied 88 N.Y.2d 816, 651 N.Y.S.2d 406, 674 N.E.2d 336).