Lloyds of London, as Subrogee of Mike Rutherford, Respondent, v. James W. Evanston, Appellant

Lloyds of London, as Subrogee of Mike Rutherford, Respondent, v James W. Evanston, Appellant. [1 NYS3d 807]— [MAJORITY] Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about June 5, 2014, which, to the extent appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Triable issues of fact exist, including whether defendant’s act of turning on his HVAC unit, after having been told by the technician that examined it that it was defective and that defendant should not use it, caused the leak that damaged plaintiffs subrogor’s apartment, which was below defendant’s apartment (compare Admiral Indem. Co. v Miji Wu Jeng, 2010 NY Slip Op 30794[U] [Sup Ct, NY County 2010] [dismissal of complaint warranted where there was a lack of evidence that tenant was aware of defect to HVAC system that ultimately resulted in a leak into an apartment below]). If, as defendant contends, it would require an expert to prove that his actions caused the leak, it would also be true that an expert would be required to show, as a matter of law, that defendant’s actions did not cause the leak. Defendant has failed to offer such proof. Concur — Friedman, J.P., Andrias, Moskowitz, DeGrasse and Richter, JJ. [Prior Case History: 2014 NY Slip Op 315440J).]