
    Marcelino Colon, Respondent, v H&B Plumbing & Heating, Inc., et al., Appellants. (And a Third-Party Action.)
    [718 NYS2d 832]
   Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 13, 1999, which, in an action for personal injuries and wrongful death arising out of a fire in the residence plaintiff shared with his decedents, denied defendant Con Ed’s and plumber contractor’s respective motions for summary judgment dismissing the complaint as against each, with leave to renew upon completion of disclosure, unanimously affirmed, without costs.

In support of the motion defendants rely on the opinion of the investigating Fire Marshal who asserted that the fire was not caused by a gas leak but by a faulty refrigerator motor causing the refrigerator’s wiring to overheat. In opposition, plaintiff submitted evidence that on April 21, 1995, Con Ed, responding to a report of a gas smell, inspected the premises, discovered a gas leak, shut off the gas, advised plaintiff that a hazardous condition existed and further advised that it would not turn the gas back on until it was in receipt of a “Blue Card” from the Buildings Department certifying that a licensed plumber had made the necessary repairs; that on April 22, plaintiff hired defendant plumber contractor; that on April 25, the contractor removed and replaced gas piping throughout the premises and turned the gas back on without communicating with Con Ed or the Buildings Department; that on May 6, 1995, Con Ed, called back to the premises on a report of a gas smell, found that gas had permeated the length of the common hollow walls throughout the premises, but left the premises without turning off the gas or providing further instructions; and that the fire occurred on May 7, 1995, killing plaintiff’s two children. We note that neither Con Ed nor the contractor has yet been deposed, that document demands served by plaintiff remain entirely outstanding, and that no affidavits from Con Ed employees were submitted on the motions. The motions were properly denied, with leave to renew upon completion of disclosure, there being an issue of fact as to whether a gas leak contributed to the fire or its consequences. Concur — Tom, J. P., Ellerin, Wallach, Lerner and Buckley, JJ.  