Dani II, Inc. v. 101 DuPont LLC , 146 A.D.3d 672 ( 2017 )

Dani II, Inc. v 101 DuPont LLC (2017 NY Slip Op 00539)

Dani II, Inc. v 101 DuPont LLC

2017 NY Slip Op 00539

Decided on January 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

Decided on January 26, 2017
Acosta, J.P., Mazzarelli, Feinman, Webber, JJ.

2862 155670/13

[*1]Dani II, Inc., Plaintiff-Respondent,

v

101 DuPont LLC, et al., Defendants-Appellants.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellants.

Kudman Trachten Aloe LLP, New York (Paul H. Aloe of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 30, 2015, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the claims for damages incurred to plaintiff's business post-Super Storm Sandy, unanimously affirmed, with costs.

Assuming, arguendo, that defendants established prima facie that plaintiff's alleged losses were proximately caused by an act of God with no contributing negligence on their part (see Prashant Enters. v State of New York , 206 AD2d 729, 730-731 [3d Dept 1994]), plaintiff's evidence in opposition raises issues of fact whether defendants adequately responded to the prompt notice they were given that the storm had blown away part of the roof of their commercial building, exposing the tenant spaces therein to significant water accumulation and damage, and whether the alleged inadequate action by defendants amounted to negligent conduct that proximately caused the additional damages alleged by plaintiff (see Michaels v New York Cent. R.R. Co. , 30 NY 564, 571 [1864]; see also Birner v Bickford's, Inc. , 280 App Div 911 [1st Dept 1952], affd 305 NY 664 [1953]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2017

CLERK