TRAVELERS PROPERTY CASUALTY v. GOMEZ SUPERMARKET (2003)

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Prus, J.), entered February 6, 2002, granting defendants' motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

In this insurer's subrogation action against the occupants of a commercial premises damaged in a storeroom defendants submitted, in support of their motion for summary judgment, the affidavit of a fire investigator commissioned by their insurer stating that the cause of the fire, possibly of electrical origin, could not be determined to any meaningful degree of probability, and the depositions of defendant Jose Gomez and plaintiff's subrogor, both of whom denied knowledge of the fire's cause (CPLR 3212[b];  Desola v. Mads, Inc., 213 A.D.2d 445, 446, 623 N.Y.S.2d 889;  Rue v. Stokes, 191 A.D.2d 245, 246, 594 N.Y.S.2d 749;  cf.  CPLR 3117[a][2] ).   The parties also submitted unsworn and uncertified copies of reports prepared by the Fire Marshal and plaintiff's own fire investigator, which reached similar conclusions. The conclusions of defendants' fire investigator, accompanied by a recitation of the factual grounds on which the conclusions were based (Romano v. Stanley, 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Amatulli v. Delhi Constr.   Corp., 77 N.Y.2d 525, 533-534 n. 2, 569 N.Y.S.2d 337, 571 N.E.2d 645), established prima facie plaintiff's inability to prove the fire's origin much less defendants' liability therefor (Wang v. Alexander's Dept. Store, 247 A.D.2d 467, 668 N.Y.S.2d 104), thereby shifting to plaintiff the burden to establish the existence of a triable issue of material fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Although plaintiffs' documentary evidence submitted in opposition to the motion for summary judgment was not in admissible form (New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., 280 A.D.2d 652, 653, 721 N.Y.S.2d 92;  Abrahamsen v. Brockway Glass Co., 156 A.D.2d 615, 617, 549 N.Y.S.2d 121) even were we to consider same (Kwi Bong Yi v. JNJ Supply Corp., 274 A.D.2d 453, 711 N.Y.S.2d 906;  see Phillips v. Kantor & Co., 31 N.Y.2d 307, 312, 338 N.Y.S.2d 882, 291 N.E.2d 129;  Guzman v. Strab Constr. Corp., 228 A.D.2d 645, 646, 645 N.Y.S.2d 318;  Zuilkowski v. Sentry Ins., 114 A.D.2d 453, 454, 494 N.Y.S.2d 363) and construe them in the light most favorable to plaintiff (Murdocca v. DiGioia, 264 A.D.2d 509, 510, 695 N.Y.S.2d 366), we find no support for plaintiff's contention that the fire was of a “kind” that normally does not occur in the absence of negligence, a threshold criterion to apply the res ipsa loquitur doctrine (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200;  Giordano v. Toys “R” Us, 276 A.D.2d 669, 670, 714 N.Y.S.2d 746) Although plaintiff was not required to exclude all “possible proximate causes of an accident” (Mayorga v. City Express Corp., 298 A.D.2d 563, 564, 749 N.Y.S.2d 52) to establish that “it was ‘more likely’ ․ or ‘more reasonable’ ․ that the alleged injury was caused by the defendant[s'] negligence than by some other agency” (Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758), none of the investigators could determine the fire's cause to any degree of certainty.   Plaintiff's own investigator offered competing inferences of the fire's origin (overloaded wiring, discarded smoking materials), neither of which constitute definitive evidence as to its cause (New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., supra see Tower Ins. Co. of N.Y. v. M.B.G. Inc., 288 A.D.2d 69, 733 N.Y.S.2d 20 [investigator's conclusion that a store fire “could have been caused by an errant lit cigarette” insufficient to create a triable issue of negligence notwithstanding owner's admission that he “normally smoked in the area”];  North Star Contr. Corp. v. Burton F. Clark, Inc., 214 A.D.2d 550, 625 N.Y.S.2d 918 [res ipsa loquitur inapplicable absent “definitive evidence as to the cause of the fire”] ).   Therefore, summary judgment was properly granted dismissing the complaint (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).