[916 NYS2d 461]

#### New York Property Insurance Underwriting Association, as Subrogee of Frances Poole and Another, Respondent, v Otis Hampton, Appellant.

Supreme Court, Appellate Term, Second Department,

November 8, 2010

*33APPEARANCES OF COUNSEL

*Walter T. Ramsey,*Brooklyn, for appellant.

OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed without costs.

Plaintiff, the subrogee of its insureds Frances Poole and Everald Poole, commenced this action to recover the sum of $6,037.98 for smoke and water damage sustained to its insureds’ premises as a result of a fire which had originated in defendant’s residence. Defendant’s residence is part of an attached two-home structure adjacent to the insureds’ residence. Plaintiff moved for summary judgment. The Civil Court granted the motion, finding that plaintiff had demonstrated its entitlement to summary judgment and that defendant had failed to raise a triable issue of fact.

On appeal, defendant contends that the court erred in not finding that the insureds were comparatively negligent by virtue of their culpable conduct. Defendant states that the Pooles, the insureds, were warned by a neighbor to return to their house to close their windows while the firefighters were engaged in putting out the fire. Defendant asserts that because the Pooles did not reenter their house to close their windows, a question of fact is raised as to whether the Pooles’ failure to do so constituted comparative negligence.

“Smoke and water damage to adjacent property are foreseeable consequences of a fire, and plaintiff may recover for such damage if he established defendantt’s] breach of duty and proximate cause” *(Cuevas v Quandt’s Foodservice Distribs.,*6 AD3d 973, 974 [2004]; *see Excelsior Ins. Co. v Auburn Local Dev. Corp.,*294 AD2d 861 [2002]; *Fontana Fabrics v Hodge,*187 AD2d 378 [1992]). Here, it is undisputed that the source of the fire was a frying pan located on the stove in defendant’s house. In our view, under the circumstances presented, the Civil Court properly found as a matter of law that the insureds’ alleged failure to close their windows while firefighters were fighting the blaze did not constitute culpable conduct on the part of the insureds so as to raise a triable issue of fact. Accordingly, the order of the Civil Court granting plaintiffs motion for summary judgment is affirmed.

*34Golia, J.

(dissenting and voting to reverse the order and deny plaintiffs motion for summary judgment in the following memorandum).

Plaintiff, an insurance carrier, is seeking reimbursement of payments made to its insured, Ms. Poole, whose premises allegedly suffered damage from both smoke and water, as the result of a fire from the neighboring premises. This neighboring premises was set on fire by its adjoining semi-attached premises owned by defendant. It is uncontested that the fire started on defendant’s premises as a result of his negligence.

Although it is undeniable that defendant’s negligence created the fire, there are nevertheless other issues which must be resolved. During the course of the fire being “fought” by the firefighters, the owner of this neighboring premises, according to her filed affidavit, instructed Ms. Poole to enter and close the windows on the second floor of her premises in order to prevent any water or smoke from getting into plaintiffs premises. Ms. Poole chose not to follow that advice. Subsequently, even though Ms. Poole’s premises never caught fire, it nevertheless allegedly suffered from both smoke and water entering the premises through those windows. I note that neither plaintiffs insured, nor plaintiff with personal knowledge, responded to this claim by denying that it ever happened; by asserting that Ms. Poole believed it was too dangerous to enter her house; by asserting that the firefighters prohibited Ms. Poole from entering her house; or by presenting any other reason why Ms. Poole had failed to protect her property and mitigate her damages.

In addition, I find that plaintiff has failed to establish by admissible evidence that defendant’s negligence was the proximate cause of the damage to the premises in question. This is especially true inasmuch as Ms. Poole’s premises is not directly adjacent to defendant’s premises *(see Homac Corp. v Sun Oil Co.,*258 NY 462 [1932]).

Accordingly, I believe that there are material issues of fact which preclude the granting of plaintiffs motion for summary judgment.

Weston, J.P, and Rios, J., concur; Golia, J., dissents in a separate memorandum.