MIRDITA v. [And a Third–Party Action] (2019)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 13, 2018, which denied the motion of defendants Musovic Realty Corp. and AAA Realty & Management, Inc. (defendants) for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Defendants established entitlement to judgment as a matter of law by submitting the fire marshal's deposition testimony and his report.  The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants' building was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer (see Robertson v. New York City Hous. Auth., 58 A.D.3d 535, 536, 871 N.Y.S.2d 141 [1st Dept. 2009];  Delgado v. New York City Hous. Auth., 51 A.D.3d 570, 571, 858 N.Y.S.2d 163 [1st Dept. 2008] lv denied 11 N.Y.3d 706, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008] ).  Although the fire marshal did not have an independent recollection of his investigation, his report was admissible under the business record exception to the hearsay rule, and was sufficient to satisfy defendants' prima facie burden, since it noted that he independently inspected the premises and concluded that the accident was not due to defendants' negligence (see Graham v. New York City Hous. Auth., 42 A.D.3d 323, 324, 839 N.Y.S.2d 738 [1st Dept. 2007], lv denied 9 N.Y.3d 816, 849 N.Y.S.2d 33, 879 N.E.2d 173 [2007] ).

In opposition, plaintiff failed to raise a triable issue of fact.  Her expert failed to address the theories of liability raised in the complaint and bill of particulars and failed to rebut defendants' showing.  Instead, plaintiff's expert raised a new theory, namely that plaintiff's injuries from smoke inhalation were caused by the absence of a self-closing door in the laundry room where the fire occurred, which caused smoke to permeate into plaintiff's apartment.  A plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers (see Keilany B. v. City of New York, 122 A.D.3d 424, 425, 997 N.Y.S.2d 372 [1st Dept. 2014] ).