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NEW YORK COURT OF APPEALS

2010 NY Int. 140


This opinion is uncorrected and subject to revision before publication in the Official Reports.



2010 NY Slip Op 06503

Decided on August 31, 2010

No. 200 SSM 30

Sapphire Simmons, & c., et al., Appellants,

v

Vito Sacchetti, et al., Respondents, et al., Defendant.

Submitted by Arnold E. DiJoseph, III, for appellants.

Submitted by Marcy Sonneborn, for respondents

Ambassador Fuel and Oil Burner Corp. et al.

Submitted by Debra A. Adler, for respondent F & B

Fuel Oil Co., Inc.

Submitted by Max W. Gershweir, for respondents Vito

Sacchetti et al.

Met Council, Inc. et al.; Housing Conservation

Coordinators, Inc., amici curiae.

MEMORANDUM

The order of the Appellate Division should be modified, without costs, by denying the motion of defendants Vito Sacchetti and TMS Management Company for summary judgment in the entirety and the motion of defendant Ambassador Fuel and Oil Burner Corp. insofar as it sought to dismiss the cross claims against it and, as so modified, affirmed.

Triable issues of fact exist as to whether defendants Sacchetti and TMS negligently failed to maintain the apartment building's boiler and domestic hot water system in a reasonably safe condition and whether the negligence of those defendants proximately caused the infant plaintiff's injuries. Issues of fact also exist as to whether the conduct of the infant plaintiff's mother and brother constituted a superseding cause of her injuries. However, the record establishes as a matter of law that defendant Ambassador did not violate any duty owed to plaintiffs.

* * * * * * * * * * * * * * * * *

On review of submissions pursuant to section 500.11 of the Rules, order modified, without costs, by denying the motion of defendants Vito Sacchetti and TMS Management Company for summary judgment in the entirety and the motion of defendant Ambassador Fuel and Oil Burner Corp. insofar as it sought to dismiss the cross claims against it and, as so modified, affirmed, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Decided August 31, 2010