NEW YORK MUTUAL UNDERWRITERS AS SUBROGEE OF GARY FITZGERALD AND KIMBERLY FITZGERALD PLAINTIFF RESPONDENT v. THOMAS KING RYAN HARE BENJAMIN BERGAN AND KAYLEE PETROSINO DEFENDANTS APPELLANTS (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motions are granted and the complaint is dismissed.

Memorandum:  Plaintiff commenced this action as subrogee of Gary and Kimberly Fitzgerald seeking to recover damages from a fire at the Fitzgeralds' vacation home.   Defendants, one of whom was the nephew of the Fitzgeralds, had spent the night at the house and awoke the following morning when the fire broke out.   The fire investigators determined that the fire originated on the rear porch of the house, but the cause of the fire was undetermined.   The investigators were unable to determine conclusively whether the fire was caused by either a carelessly discarded cigarette or an unattended citronella candle.

Supreme Court erred in denying defendants' motions for summary judgment dismissing the complaint against them.   Defendants met their initial burden of establishing that they were not responsible for the fire, and plaintiff failed to raise a triable issue of fact (see Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129, 1130).   Defendants submitted evidence establishing that none of them smoked a cigarette on the porch, and they further submitted evidence establishing that none of them lit the candle or even observed that it was lit.   The affidavit of plaintiff's expert in opposition to the motions is insufficient to raise a triable issue of fact because it is based on mere speculation (see Public Serv. Mut. Ins. Co. v 99¢ Plus of Fifth Ave., 5 AD3d 276;  Easy Shopping Corp. v. Sneakers Ctr. & Sports, 303 A.D.2d 361;  Tower Ins. Co. of N.Y. v. M.B.G. Inc., 288 A.D.2d 69).

Patricia L. Morgan

Clerk of the Court