Opinion
February 4, 1999
Appeals from the Supreme Court (Kramer, J.).
Plaintiffs Lela Moran and Anne Salmiery, employees of Community Health Plan (hereinafter CHP), were allegedly injured at their place of employment when the substance halon was discharged in the computer and/or battery room on the same floor as their work stations. CHP had contracted with defendant Technical Building Services, Inc. and its wholly owned subsidiary, TBS-Time Safety, Inc., to maintain and service the halon fire suppressant system which was located in the room where the halon was allegedly discharged. Two separate actions were commenced against defendant claiming negligence and strict liability in allowing the halon to be released. Defendant moved for summary judgment in both actions pursuant to CPLR 3212 on the basis that there was no evidence to support plaintiffs' claims that a halon discharge occurred at the CHP building. Supreme Court issued separate decisions denying defendant's motions, finding the existence of material issues of fact. Defendant now appeals from both orders.
It is axiomatic that summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact has been presented ( see, Zuckerman v. City of New York, 49 N.Y.2d 557; Levy v. CCA Indus., 160 A.D.2d 1170). The moving party has the initial burden of making a prima facie showing of entitlement to relief by submitting proof in admissible form sufficient to warrant judgment in his or her favor as a matter of law ( see, Zuckerman v. City of New York, supra; Cheeseman v. Inserra Supermarkets, 174 A.D.2d 956). Once this burden has been satisfied, the nonmoving party must present admissible evidence to demonstrate the existence of a triable issue of fact ( see, Yu-Shih Chen v. Wharton, 112 A.D.2d 636, lv denied 66 N.Y.2d 602).
In support of its motion for summary judgment, defendant relied upon deposition testimony of two of its employees who investigated the incident. John Butkus stated that there was no way for him to determine whether the source of the odor was halon but acknowledged that an odor had emanated from the computer or battery room. Steven Coons indicated that it did not appear to him that a halon leak had occurred since the liquid level indicator on the halon tank did not reveal such a discharge. Despite defendant's posture that there was no evidence of a halon leak, the halon tank was disconnected and removed for testing and to prevent further possible leakage. Defendant also referenced the deposition testimony of Andrew Henery, an employee of CHP, who concurred that the halon system panels revealed no discharge. However, Henery made a log entry on the day of the incident in which he noted a possible halon discharge based upon his opinion that the odor and symptoms experienced by the affected employees suggested halon exposure.
Plaintiffs testified at their depositions that on the day of the incident they experienced lightheadedness, coughing, choking and irritated eyes, all symptoms related to being exposed to halon. Approximately two weeks after the incident, CHP's Director of Occupational and Preventative Medicine wrote an internal memorandum concluding that the odor, symptoms of the affected employees and the lack of physical evidence were consistent with a halon leak. Martin Jenzer, Moran's treating physician, indicated that her symptoms and illness were caused by her exposure to a halon leakon the date the incident is alleged to have occurred. It is also undisputed that an actual odor did exist in the CHP building on the date in which plaintiffs, as well as other employees, became ill.
Based on the foregoing, Supreme Court properly determined that an issue of fact existed with respect to whether a discharge of halon occurred as the result of defendant's alleged negligent maintenance of the system. Although plaintiffs did not submit definitive proof in opposition to defendant's motion, defendant failed to satisfy its initial burden of coming forward with sufficient evidence establishing the existence of no triable issues of fact ( see, Mattimore v. Patroon Fuels, 198 A.D.2d 734, 735).
Mikoll, J. P., Crew III, Peters and Spain, JJ., concur.
Ordered that the orders are affirmed, with costs.