McDonald v. Seminole Realty Co.

—In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (LaTorella, J.), dated February 3, 1998, as denied that branch of their motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Sullivan McDonald allegedly was injured when floor sealer fumes ignited and then exploded while he was. applying the sealer on a floor in an apartment owned by the defendant Seminole Realty Co. and managed by the defendant Ditmas Management Corporation. The plaintiffs allege that the fire was caused by the acts of the defendants’ employees, and the defendants contend that the fire resulted from the injured plaintiff’s negligence.

On this record, we agree with the Supreme Court’s determination that summary judgment in favor of the defendants was not appropriate in light of the existence of triable issues of fact as to the cause of the fire and whether the defendants’ employees were acting within the scope of their employment when the accident occurred. Bracken, J. P., Thompson, Joy and Luciano, JJ., concur.