        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

399
CA 12-02094
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


NEW YORK MUNICIPAL INSURANCE RECIPROCAL, AS
SUBROGOR OF COUNTY OF OSWEGO,
PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

CASELLA CONSTRUCTION, INC., DEFENDANT-RESPONDENT.


CONGDON FLAHERTY O’CALLAGHAN REID DONLON TRAVIS & FISHLINGER,
UNIONDALE (GREGORY A. CASCINO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MELISSA L.
VINCTON OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oswego County (Norman
W. Seiter, Jr., J.), entered April 9, 2012. The order granted
defendant’s motion for summary judgment dismissing plaintiff’s
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff, as subrogor of the County of Oswego,
commenced this action seeking to recover damages for losses sustained
when property at a landfill operated by the County of Oswego was
damaged in a fire. In its complaint, plaintiff alleged, inter alia,
that the fire occurred as a result of the negligence of defendant’s
employees, who were completing a construction project at the landfill
on the date of the fire. Plaintiff appeals from an order granting
defendant’s motion for summary judgment dismissing the complaint. We
conclude that defendant failed to meet its initial burden on the
motion, and we therefore reverse the order and reinstate the
complaint.

     We reject the contention of defendant that it met its initial
burden on the motion by establishing as a matter of law that plaintiff
was unable to identify the cause of the fire without engaging in
speculation. In order to establish proximate cause, “[p]laintiffs
need not positively exclude every other possible cause of the
accident. Rather, the proof must render those other causes
sufficiently remote or technical to enable the jury to reach its
verdict based not upon speculation, but upon the logical inferences to
be drawn from the evidence . . . A plaintiff need only prove that it
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                                                        CA 12-02094

was more likely . . . or more reasonable . . . that the alleged injury
was caused by the defendant’s negligence than by some other agency”
(Gayle v City of New York, 92 NY2d 936, 937 [internal quotation marks
omitted]; see Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744).
Furthermore, it is well settled that, in seeking summary judgment
dismissing a complaint, a defendant “must affirmatively establish the
merits of its . . . defense and does not meet its burden by noting
gaps in its opponent’s proof” (Orcutt v American Linen Supply Co., 212
AD2d 979, 980; see Brown v Smith, 85 AD3d 1648, 1649; Atkins v United
Ref. Holdings, Inc., 71 AD3d 1459, 1459-1460). Here, defendant failed
to meet its initial burden in support of its motion inasmuch as it
failed to establish as a matter of law that its employees did not
start the fire.




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
