Oliver v. Gans 71 A.D.2d 882

—In an action to recover for property damage allegedly caused by a fire illegally set in an adjoining building, defendant Barry Gans appeals from an order of the Supreme Court, Kings County, dated July 19, 1978, which, inter alia, granted plaintiffs’ motion for summary judgment and set the matter down for an assessment of damages. Order affirmed, with $50 costs and disbursements. Appellant, in effect, conceded his liability in his examination before trial and the papers submitted in opposition to the motion raised no issues requiring a trial. Hopkins, J. P., Lazer and Rabin, JJ., concur.

Gulotta, J.,

dissents, in part, and votes to modify the order to the extent of denying plaintiffs’ motion for summary judgment as to their first cause of action and severing the same from their remaining cause, and, as so modified, to affirm the order, with the following memorandum: Although I am otherwise in agreement with my brethren in the majority, it is my belief that it cannot be said as a matter of law that the defendants or any of them, as is alleged in plaintiffs’ first cause of action, "caused a fire to be negligently started in an adjoining premises which fire was uncontrolled and spread upon the plaintiffs premises”, thus causing the destruction thereof. In my opinion, the presence or absence of negligence on the part of the defendants presents a triable issue of fact which is not present in the second cause of action sounding in intentional tort. In this latter cause the undisputed facts warrant summary judgment.