H.W.R. Fashions, Inc. v. Gasoline Installers, Inc.

In a negligence action to recover damages for property damage, the defendant Gasoline Installers, Inc., and the defendants Sun Oil Co., Inc. and Sun Refining and Marketing Company, separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Vaccaro, J.), dated April 15, 1993, as granted the plaintiff’s motion for summary judgment on the issue of liability. Ordered that the order is affirmed insofar as appealed from, with one bill of costs. 902 There is no dispute that the plaintiff was not responsible for causing the leak that damaged its property. Although a question of fact exists as to whether the plaintiff could have prevented the damage to its property, that question should be considered with regard to the issue of mitigation of damages (see, e.g., Spier v Barker, 35 NY2d 444, 451; see also, Bellier v Bazan, 124 Misc 2d 1055, 1058). As the defendants failed to raise the existence of any bona fide issues of fact to warrant a denial of summary judgment on the issue of liability, the court properly granted the plaintiff’s motion. Ritter, J. P., Copertino, Friedmann and Florio, JJ., concur.