Freeman v. Hertzoff

— Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered October 8, 1992, which, in an action, inter alia, to recover property damages caused by a fire in defendants-respondents’ building, denied defendant-appellant’s motion for summary judgment dismissing all claims as against it, unanimously affirmed, without costs.

An inference that the fire was caused by students living in appellant’s Brittany Hall adjacent to and overlooking the subject building is permissible, in view of the history of students from Brittany Hall throwing debris and other material onto the rear extension roof of the subject building, the fact that appellant had regularly cleared such debris from the roof, the Fire Marshal’s report indicating that the probable cause of the fire was the careless discard of smoking material on the second floor extension roof, and the fact there were no other occupants of the subject building at the time of the fire. *571Respondents need not exclude all other possible causes of the fire in order to prevail (Humphrey v State of New York, 60 NY2d 742, 744). That experts differ as to the cause is a matter for the jury, and we reject the claim that the opinions of respondents’ experts are not based on established fact. Concur —Milonas, J. P., Rosenberger, Kupferman, Asch and Kassal, JJ.