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PUBLIC SERVICE MUTUAL INSURANCE COMPANY v. 99¢ PLUS OF FIFTH AVENUE, INC.

5 A.D.3d 276 (2004)

774 N.Y.S.2d 679

PUBLIC SERVICE MUTUAL INSURANCE COMPANY, Appellant, v. 99¢ PLUS OF FIFTH AVENUE, INC., Defendant, and 5510 FIFTH AVENUE DISCOUNT CORP., Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 23, 2004.

Plaintiff failed to raise an issue of fact with respect to the cause of the fire. Its expert's report and affidavit to the effect that an employee of defendant 99¢ Plus had caused the fire while smoking in the stairwell 10 minutes before the fire started were based upon pure speculation (see Tower Ins. Co. of N.Y. v M.B.G. Inc., 288 A.D.2d 69 [2001]).

We have considered plaintiff's other claims and find them to be...

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