CLARKE v. BROOKLYN UNION GAS COMPANY

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

Allen CLARKE, Appellant, v. BROOKLYN UNION GAS COMPANY, et al., Respondents, et al., Defendant. (Action No. 1)

Eric Brown, Plaintiff, v. Brooklyn Union Gas Company, et al., Defendants.  (Action No. 2)

Dorothy McLeod, etc., et al., Appellants, v. Brooklyn Union Gas Company, Respondent, et al., Defendants.  (Action No. 3)

Decided: September 30, 2002

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN and HOWARD MILLER, JJ. David P. Kownacki, P.C., New York, N.Y. (Lawrence B. Goodman of counsel), for appellant in Action No. 1. Gersowitz, Libo & Korek, P.C., New York, N.Y. (Andrew L. Libo and Michael A. Fruhling of counsel), for appellants in Action No. 3. Cullen & Dykman, LLP, Brooklyn, N.Y. (Richard A. Shannon and Joseph Fegan of counsel), for Brooklyn Union Gas Company, respondent in Action Nos. 1 and 3. Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Amy M. Kramer of counsel), for Dorothy E. McLeod and Vivian McLeod, respondents in Action No. 1.

In three related actions to recover damages for personal injuries which were joined for trial, the plaintiff in Action No. 1 appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Pincus, J.), dated March 30, 2001, as granted the motion of the defendants Dorothy E. McLeod and Vivian McLeod, and the separate motion of the defendant Brooklyn Union Gas Company, for summary judgment dismissing the complaint in that action insofar as asserted against them, and the plaintiffs in Action No. 3 separately appeal from so much of the same order as granted the cross motion of the defendant Brooklyn Union Gas Company for summary judgment dismissing the complaint in that action insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

On November 22, 1996, an employee of the defendant Brooklyn Union Gas Company (hereinafter Brooklyn Union) visited the house of the defendants Dorothy E. McLeod and Vivian McLeod (hereinafter the McLeod defendants), shut off the gas to a hot water heater that was reportedly leaking water, and tested for, but did not detect, the presence of gas in the air.   While the hot water heater was being replaced, an explosion occurred injuring the plaintiffs Allen Clarke, Eric Brown, and Tiffany McLeod.   The instant actions, including a suit by Dorothy McLeod on behalf of Tiffany McLeod (hereinafter the McLeod plaintiffs), were commenced.   The Supreme Court granted the McLeod defendants' motion and Brooklyn Union's cross motion for summary judgment.   We affirm.

 The McLeod defendants demonstrated their entitlement to summary judgment by presenting evidence that, inter alia, they neither smelled any gas in the house nor worked on the heater.   As Clarke merely speculated that the McLeod defendants caused the alleged injury-causing condition (see Johnson v. Sniffen, 265 A.D.2d 304, 696 N.Y.S.2d 211;  Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423), and failed to present any evidence in admissible form that they had actual or constructive notice of the condition (see Wozniak v. Filler, 245 A.D.2d 444, 666 N.Y.S.2d 670;  Mittendorf v. Brooklyn Union Gas Co., 195 A.D.2d 449, 600 N.Y.S.2d 123), the Supreme Court properly granted summary judgment to the McLeod defendants.

 Brooklyn Union also established its entitlement to summary judgment by furnishing evidence that it neither created nor had notice of any alleged dangerous condition.   Clarke and the McLeod plaintiffs failed to raise triable issues of fact regarding Brooklyn Union's liability, in that they failed to demonstrate that it had notice of a gas leak (see Mittendorf v. Brooklyn Union Gas Co., supra) or of an alleged defect in the shut-off valve it allegedly failed to inspect (see Bell v. Brooklyn Union Gas Co., 193 App.Div. 669, 184 N.Y.S. 807;  Doster v. Binghamton Gas Works, 197 Misc. 810, 95 N.Y.S.2d 437).   In addition, since the McLeod plaintiffs failed to submit the “Parts Protection Plan” purportedly covering the shut-off valve, they failed to substantiate their claim that Brooklyn Union breached a contractual duty to inspect and replace the valve (see generally Glendora v. Gallicano, 206 A.D.2d 454, 615 N.Y.S.2d 44).   In any event, the purported expert affidavit of the McLeod plaintiff's engineer, which was not notarized, was inadmissible (see CPLR 2106;  Laventure v. McKay, 266 A.D.2d 516, 699 N.Y.S.2d 92;  Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201;  Rum v. Pam Transp., 250 A.D.2d 751, 673 N.Y.S.2d 178), and therefore was insufficient to establish that the shut-off valve was defective.   Accordingly, Brooklyn Union was also properly granted summary judgment (see Romano v. Brooklyn Union Gas Co., 250 A.D.2d 663, 672 N.Y.S.2d 771).

The parties' remaining contentions are either academic, improperly before this court, or without merit.

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