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REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff could not defeat a summary judgment motion by raising a new theory of liability in the opposing papers:

The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants’ building was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer … . Although the fire marshal did not have an independent recollection of his investigation, his report was admissible under the business record exception to the hearsay rule, and was sufficient to satisfy defendants’ prima facie burden, since it noted that he independently inspected the premises and concluded that the accident was not due to defendants’ negligence … .

In opposition, plaintiff failed to raise a triable issue of fact. Her expert failed to address the theories of liability raised in the complaint and bill of particulars and failed to rebut defendants’ showing. Instead, plaintiff’s expert raised a new theory, namely that plaintiff’s injuries from smoke inhalation were caused by the absence of a self-closing door in the laundry room where the fire occurred, which caused smoke to permeate into plaintiff’s apartment. A plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers … . Mirdita v Musovic Realty Corp., 2019 NY Slip Op 03284, First Dept 4-30-19

 

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