                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   522383
________________________________

HENRY MONTANEZ et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE ELECTRIC AND
   GAS,
                    Respondent.
________________________________


Calendar Date:   September 6, 2016

Before:   Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.

                             __________


      Shawn Law Offices, Monticello (Jeffrey L. Nash of Nash Law
Group, LLC, Camden, New Jersey, of counsel), for appellants.

      The Wolford Law Firm, LLP, Rochester (James S. Wolford of
counsel), for respondent.

                             __________


Clark, J.

      (1) Appeal from an order of the Supreme Court (Meddaugh,
J.), entered April 10, 2015 in Sullivan County, which granted
defendant's motion for summary judgment dismissing the complaint,
and (2) motion to dismiss appeal.

      Plaintiffs owned a house situated on several acres of land
in the Town of Thompson, Sullivan County. On August 28, 2011, as
a result of Hurricane Irene, a tree branch fell onto and severed
a power line owned and maintained by defendant on its permanent
utility easement over a wooded portion of plaintiffs' property,
hundreds of feet from plaintiffs' house. In response, defendant
dispatched a line guard to prevent any person from coming into
contact with the live wire until the line could be repaired. The
                               -2-                522383

downed power line, which remained live for several hours, made
contact with an above-ground PVC pipe containing water and
electrical lines for a sprinkler system. The downed power line
burned through the PVC pipe and electrical insulation and
energized the sprinkler system's electrical wire, which connected
to an electrical box in plaintiffs' residence, thereby causing
electrical arcing and a structural fire in plaintiffs' house.

      Plaintiffs commenced this action alleging, among other
things, that defendant was negligent in maintaining, inspecting
and repairing the power line and that it failed to take the
proper precautions to prevent the electrical malfunctions that
caused the fire.1 Following joinder of issue and disclosure,
defendant moved for summary judgment dismissing the complaint.
Supreme Court granted the motion in its entirety. Plaintiffs
appealed, and defendant thereafter moved to dismiss the appeal on
the basis that, in the absence of a valid notice of appeal, this
Court lacked jurisdiction. This Court withheld decision and
directed that the motion be decided in conjunction with the
appeal.

      Initially, we deny defendant's motion to dismiss the
appeal. While plaintiffs' attorney of record filed a notice
withdrawing plaintiffs' timely notice of appeal, he later filed
an amended notice clarifying that the prior notice was intended
to withdraw only that portion of the appeal relating to the
subrogation claims belonging to plaintiffs' insurer (see CPLR
1004), not that portion of the appeal relating to plaintiffs'
claims to recover for uninsured property damages. In the absence
of any demonstrated prejudice to defendant, who apparently had
notice of plaintiffs' intention to proceed with an appeal, and
considering that counsel promptly corrected the mistake upon
learning of its occurrence, we overlook any resulting defects in
plaintiffs' notice of appeal in the exercise of our discretion
(see Matter of Deraway v Bulk Stor., Inc., 51 AD3d 1313, 1314 n 1
[2008]; Salvador v Town Bd. of Town of Queensbury, 303 AD2d 826,


     1
        Plaintiffs conceded to the dismissal of their remaining
causes of action sounding in breach of implied and express
warranties, strict liability and breach of contract.
                              -3-                522383

827 [2003]).

      Turning to the merits, "[t]o establish a prima facie case
of negligence, the plaintiff is required to demonstrate that the
defendant owed a duty to him or her, that the defendant breached
that duty and that such breach was a proximate cause of the
injuries sustained" (Evarts v Pyro Eng'g, Inc., 117 AD3d 1148,
1150 [2014]; see Pasternack v Laboratory Corp. of Am. Holdings,
27 NY3d 817, 825 [2016]). Although dependent upon the facts and
circumstances, "[t]he existence and scope of an alleged
tortfeasor's duty is, in the first instance, a legal question for
determination by the court" (Di Ponzio v Riordan, 89 NY2d 578,
583 [1997]; see Tagle v Jakob, 97 NY2d 165, 168 [2001]; Sciscente
v Lill Overhead Doors, Inc., 78 AD3d 1300, 1301 [2010]). In
determining the scope of duty, courts examine, among other
factors, whether the "injury-producing occurrence is one that
could have been anticipated" (Di Ponzio v Riordan, 89 NY2d at
583; see Gordon v City of New York, 70 NY2d 839, 841 [1987];
Moore v J.A. Bradley & Sons, Inc., 68 AD3d 1419, 1422 [2009]).

      Defendant's submissions in support of its motion for
summary judgment established that it did not consent to, or
receive notice of, the installation of the sprinkler system over
10 years prior to the fire. The terms of defendant's easement
prohibited the construction of surface or subsurface structures
on the easement without defendant's prior written consent.
Defendant's employee averred that defendant's records contained
no indication that defendant had been notified of the
installation or consented to it. Additionally, plaintiff Henry
Montanez and his father-in-law, who apparently paid for the
installation of the sprinkler system, stated in their deposition
testimony that they did not notify defendant that water and
electrical lines had been installed above ground on the easement.
In fact, Montanez, his father-in-law and the property's
groundskeeper all asserted that they were unaware that the PVC
piping on the easement was above ground, and several witnesses
involved in investigating the cause of the fire asserted that the
piping was covered by heavy brush and vegetation.

      Defendant's expert explained that the PVC pipe containing
electrical and water lines was installed above ground in
                              -4-                522383

violation of electrical code and opined that, had the pipe been
buried underground in compliance with code, the fire would not
have occurred. He thus opined that the cause of the fire was the
negligent installation of the sprinkler system and that a
structural fire roughly 275 feet from a downed power line is not
a normal and foreseeable consequence of that downed line. As
Supreme Court properly concluded, the foregoing proof established
defendant's prima facie entitlement to judgment as a matter of
law on the basis that, under the circumstances caused by the
hurricane, defendant acted reasonably in dispatching a line guard
to prevent anyone from coming into contact with the downed line
and that it could not have anticipated that the power line would
come into contact with electrical wiring that was improperly
installed above ground by a third party – in violation of
electrical code – on its easement in a heavily wooded area
without having received notice of, or given consent for, its
installation and that such contact would cause the electrical
arcing that started a fire in the residence (see Moore v J.A.
Bradley & Sons, Inc., 68 AD3d at 1421; Amica Mut. Ins. Co. v Town
of Vestal, 191 AD2d 916, 917 [1993]). The burden thus shifted to
plaintiffs to put forth competent proof demonstrating the
existence of triable issues of fact precluding summary judgment
dismissing the complaint (see Sherman v New York State Thruway
Auth., 27 NY3d 1019, 1022 [2016]).

      Plaintiffs are largely in agreement with defendant as to
the salient facts and circumstances underlying the fire, but
disagree as to the duty that arose to defendant under these
circumstances. Plaintiffs argue that defendant should have been
aware of the PVC piping on the easement, which plaintiffs' expert
described as "clearly open and apparently visible," because it
had repaired the power line at issue on several prior occasions.
However, plaintiffs failed to establish how the mere observance
of PVC piping on the easement would enable defendant to conclude
that the piping contained an electrical wire that connected to an
electrical box in the house and, thus, anticipate that the downed
power line could cause a structural fire at the house. The
affidavits of plaintiffs' experts, who opined that defendant was
negligent in responding to the dangerous condition posed by the
downed power line and that the risk of fire was reasonably
foreseeable, failed to address this deficiency. As plaintiffs'
                              -5-                  522383

evidence, including the conclusory opinions offered by their
experts, fell short of demonstrating that defendant should have
reasonably perceived the risk that the downed power line could
cause a fire in the residence hundreds of feet away, Supreme
Court properly granted defendant's motion for summary judgment
dismissing the complaint (see Moore v J.A. Bradley & Sons, Inc.,
68 AD3d at 1422; Lee v New York City Hous. Auth., 25 AD3d 214,
218-219 [2005], lv denied 6 NY3d 708 [2006]).

     Peters, P.J., McCarthy, Lynch and Rose, JJ., concur.



      ORDERED that the motion to dismiss the appeal is denied,
without costs.

     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
