Allstate Insurance v. Harbor Fuel Co.

—In an action to recover damages for [496] injury to property, the defendant appeals from an order of the Supreme Court, Nassau County (Schmidt, J.), dated December 19, 1996, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiffs alleged that a heating system owned by the plaintiffs Mario Sbarro and Annunziatina Sbarro failed due to the defendant’s negligent maintenance of the system, causing a water pipe to freeze and burst and resulting in flooding and property damage. Contending that the plaintiffs’ theory was based on speculation alone, and that the evidence indicated that the heating system failed only when the flooding occurred, the defendant moved for summary judgment dismissing the complaint. The court denied its motion and we affirm. On this record, including a history of recent service calls to correct a “no heat” condition and an expert’s report on causation, the plaintiffs presented sufficient circumstantial evidence to permit a jury to infer that the defendant was negligent in its repair or maintenance of the heating system and that the “no heat” condition caused the rupture of the pipe (see, Distribuidora Nacional De Disco v Rappaport, 92 AD2d 559, 560). The plaintiffs having presented evidence to establish triable issues of fact, the court properly denied the defendant’s motion for summary judgment. The defendant’s remaining contention is without merit. Pizzuto, J. P., Santucci, Joy and Friedmann, JJ., concur.