30 A.D.2d 878 | N.Y. App. Div. | 1968
In consolidated actions to recover damages for property injuries, defendants appeal from a judgment of the Supreme Court, Kings County, entered March 22, 1967, in favor of plaintiffs upon a jury verdict. Judgment reversed, on the law and the facts, with costs, and complaints dismissed with costs. Defendants are the record owners of buildings Nos. 190, 192 and 194 Flushing Avenue, Brooklyn. On February 25, 1962 an explosion and fire occurred in the cellar of building No. 194. The fire spread to the second floor of building No. 194 and thereafter to premises 192 and 190. Plaintiff Schectman, on the date of the fire, was the lessee of all the space in buildings Nos. 190 and 192 and the second floor of building No. 194. The fire destroyed or damaged a large quantity of material and machinery which belonged to him and property which plaintiff Drueding Brothers had left in his care. The leased premises were being used by him as a factory. Prior to the day of the fire .the City of New York had placed a violation on building No. 194 due to the defendants’ failure to erect a fire retardant protective ceiling with resistive rating of at least one hour, in the cellar and first floor of the premises, pursuant to subdivision 6 of section 272 of the Labor Law. It is conceded that at the time of the conflagration no fire retarding or automatic fire extinguishing system was erected. It was also conceded that the owners were not responsible for causing the fire and explosion. On the trial, plaintiffs proceeded on the theory that defendants’ failure to fire retard was conclusive evidence of negligence or, at the very least, was some evidence of negligence, and that the failure to comply with the statute was the proximate cause of the injury to their property. In our opinion, plaintiffs were unable to establish their theory of the case. The testimony did not establish any likelihood that the