Kingston v. City of New York

Issues of fact remain with respect to the cause of the fire from which this action arose. Although the Fire Department report stated that the blaze was caused by an electrical heater on the second floor of the subject home, no evidence appears in the record concerning the basis for that conclusion. In her ex-*344animation before trial, the decedents’ mother testified that the electrical heater was not plugged in, let alone turned on, at the time the fire occurred. Plaintiffs also submitted the affidavit of an expert who concluded that the cause of the fire was the defective condition of the chimney.

Issues of fact also remain as to whether Budget Fuel’s worker on a service call regarding the chimney assumed a duty to fully clean or repair the chimney and/or to warn plaintiffs that a dangerous condition existed that needed to be corrected, since there is conflicting deposition testimony as to whether the worker had removed bricks and other evidence of deterioration from inside the chimney and as to whether the worker commented that a perilous condition existed.

We have considered defendant Budget Fuel’s remaining contentions and find them to be without merit. Concur—Ellerin, J. P., Rubin, Kupferman, Williams and Mazzarelli, JJ.