ALVAREZ v. Park Crest East Condominium Association, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Marcela ALVAREZ, as Administratrix of the Estate of Aixa Maria Hernandez, Decedent, et al., Plaintiffs-Appellants, v. 21ST CENTURY RENOVATIONS LTD., Defendant, Park Crest East Condominium Association, et al., Defendants-Respondents.

Decided: October 15, 2009

ANDRIAS, J.P., SWEENY, NARDELLI, RICHTER, ABDUS-SALAAM, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. Law Offices of Safranek, Cohen & Krolian, White Plains (Peter H. Cohen of counsel), for Park Crest Condominium Association, respondent. Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford (Richard S. Sklarin of counsel), for 100 Caryl Avenue Realty, respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November 17, 2008, which, to the extent appealed from, granted defendant 100 Caryl Avenue Realty's (Caryl) motion for partial summary judgment dismissing plaintiffs' claim for conscious pain and suffering, unanimously reversed, on the law, without costs, the motion denied and the claim reinstated.

Decedent perished in a five-alarm fire in her building in Yonkers, New York. When this action ensued, the superintendent of the building, decedent's friend, testified at a deposition that at approximately 5:30-5:45 p.m., an hour before the fire broke out, he spoke to her on the telephone and told her to begin to prepare dinner.   Caryl, the owner of most of the units in the building, subsequently moved, inter alia, for summary judgment dismissing plaintiffs' claim for conscious pain and suffering, arguing that there was no evidence concerning whether or not decedent was awake during the blaze.   In response, plaintiffs submitted the affirmation of a pathologist and former medical examiner who opined within a reasonable degree of medical certainty that decedent would have been aware of the fire and it was within a reasonable degree of medical probability that she lived for at least ten minutes and experienced conscious pain and suffering.

To obtain summary judgment, it was incumbent on Caryl to rule out the possibility that decedent was conscious during the fire for some period of time before her demise.   The evidence presented in support of the motion was silent on this issue.   Caryl merely pointed to gaps in plaintiffs' proof, which is insufficient in the context of summary judgment (see DeMilia v. DeMico Bros., 294 A.D.2d 264, 741 N.Y.S.2d 873 [2002] ).   Accordingly, the burden never shifted to plaintiffs to raise a triable issue of fact, although their submission was sufficient to do so.