Craig Marsden et al., Respondents, v. EMLT Realty Corp. et al., Appellants

Craig Marsden et al., Respondents, v EMLT Realty Corp. et al., Appellants. [757 NYS2d 431] [MAJORITY] Order, Supreme Court, New York County (Barbara Kapnick, J.), entered February 7, 2002, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. In this action brought by residents of an apartment building rendered uninhabitable by a fire, material questions of fact exist as to plaintiffs’ claims that defendants were negligent in the repair and maintenance of the building and negligent in securing the premises after the fire (see Nichols v Agway, Inc., 280 AD2d 889 [2001]; compare Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [1993]). Although the Fire Marshal stated that he could not ascertain, with complete precision, the cause of the fire, his theory that the fire was probably caused by heat from electrical wiring was based on his investigation of the premises and interviews conducted at the scene. Plaintiffs’ fire-loss expert’s opinion, that the fire was caused by the overheating of defective electrical wiring in a ceiling, was based on his analysis of Fire Department reports, interviews and specific tenant complaints, and is consistent with the Fire Marshal’s determination. Furthermore, there is conflicting evidence raising triable issues of fact as to the subsequent measures taken to secure the building and its contents. We have considered and rejected defendants’ remaining arguments. Concur — Mazzarelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.