BY CHELSEA v. ROBLES (2020)

Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered April 18, 2019, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this personal injury action stemming from infant plaintiff J.V.'s alleged carbon monoxide poisoning, defendants made out their prima facie burden showing that defendants did not create or have notice of an alleged dangerous carbon dioxide condition in plaintiffs' apartment.  Defendants submitted evidence that the carbon monoxide detector in plaintiffs' apartment was installed and operable that no one else residing in the apartment was tested for carbon monoxide poisoning at the time of the infant plaintiff's hospitalization, and their expert opined as to a lack of causality.  Defendants' expert pediatric critical care physician was qualified to opine that there was no causal relationship between the infant plaintiff's alleged carbon monoxide poisoning and plaintiff mother's heating the apartment, in the alleged absence of adequate heat provided by defendants, by turning on the burners on the stove, boiling water, and running the oven with the door open (see generally Price v. New York City Hous. Auth., 92 N.Y.2d 553, 559, 684 N.Y.S.2d 143, 706 N.E.2d 1167 [1998];  Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19 [1997];  Limmer v. Rosenfeld, 92 A.D.3d 609, 939 N.Y.S.2d 50 [1st Dept. 2012];  Mustello v. Berg, 44 A.D.3d 1018, 1019, 845 N.Y.S.2d 86 [2d Dept. 2007], lv denied 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008];  Joswick v. Lenox Hill Hosp., 161 A.D.2d 352, 355, 555 N.Y.S.2d 104 [1st Dept. 1990]).

Plaintiffs failed to raise an issue of fact in opposition, because their expert did not causally relate the infant plaintiff's injury to the manner in which plaintiff mother heated the apartment (see Foley v. Chateau Rive Equities, LLC, 172 A.D.3d 599, 102 N.Y.S.3d 22 [1st Dept. 2019];  Sternberg v. Rugova, 162 A.D.3d 456, 457, 78 N.Y.S.3d 325 [1st Dept. 2018]).

We have considered plaintiffs' remaining contentions to the extent they are not improperly raised for the first time on appeal and found them unavailing.