NEW YORK MUNICIPAL INSURANCE RECIPROCAL AS SUBROGOR OF COUNTY OF OSWEGO PLAINTIFF APPELLANT v. CASELLA CONSTRUCTION INC DEFENDANT RESPONDENT (2013)
Supreme Court, Appellate Division, Fourth Department, New York.
NEW YORK MUNICIPAL INSURANCE RECIPROCAL, AS SUBROGOR OF COUNTY OF OSWEGO, PLAINTIFF–APPELLANT, v. CASELLA CONSTRUCTION, INC., DEFENDANT–RESPONDENT.
Decided: April 26, 2013
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.
CONGDON FLAHERTY O'CALLAGHAN REID DONLON TRAVIS & FISHLINGER, UNIONDALE (GREGORY A. CASCINO OF COUNSEL), FOR PLAINTIFF–APPELLANT. RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MELISSA L. VINCTON OF COUNSEL), FOR DEFENDANT–RESPONDENT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff, as subrogor of the County of Oswego, commenced this action seeking to recover damages for losses sustained when property at a landfill operated by the County of Oswego was damaged in a fire. In its complaint, plaintiff alleged, inter alia, that the fire occurred as a result of the negligence of defendant's employees, who were completing a construction project at the landfill on the date of the fire. Plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint. We conclude that defendant failed to meet its initial burden on the motion, and we therefore reverse the order and reinstate the complaint.
We reject the contention of defendant that it met its initial burden on the motion by establishing as a matter of law that plaintiff was unable to identify the cause of the fire without engaging in speculation. In order to establish proximate cause, “[p]laintiffs need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence ․ A plaintiff need only prove 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 [internal quotation marks omitted]; see Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744). Furthermore, it is well settled that, in seeking summary judgment dismissing a complaint, a defendant “must affirmatively establish the merits of its ․ defense and does not meet its burden by noting gaps in its opponent's proof” (Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980; see Brown v. Smith, 85 AD3d 1648, 1649; Atkins v. United Ref. Holdings, Inc., 71 AD3d 1459, 1459–1460). Here, defendant failed to meet its initial burden in support of its motion inasmuch as it failed to establish as a matter of law that its employees did not start the fire.
Frances E. Cafarell
Clerk of the Court
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