Opinion
2017–04487 Index No. 2848/11
10-17-2018
NEW YORK SCHOOLS INSURANCE RECIPROCAL, etc., appellant-respondent, v. MILBURN SALES CO., INC., etc., respondent-Appellant (and third-Party actions).
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for appellant-respondent. Kennedys CMK, New York, N.Y. (Frank J. Wenick of counsel, New York), for respondent—appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for appellant-respondent.
Kennedys CMK, New York, N.Y. (Frank J. Wenick of counsel, New York), for respondent—appellant.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In a subrogation action to recover damages for property damage, the plaintiff appeals and the defendant cross-appeals from an order of the Supreme Court, Suffolk County (James Hudson, J.), dated March 15, 2017. The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the issue of liability. The order, insofar as cross-appealed from, denied the defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
On February 18, 2010, a fire damaged a school in the West Babylon Union Free School District (hereinafter the school district). In the weeks leading up to the fire, various contractors, including the defendant, had performed work at the school. The plaintiff commenced this subrogation action against the defendant to recover damages that the plaintiff had paid to the school district. The plaintiff moved for summary judgment on the issue of liability, and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and the cross motion. The plaintiff appeals, and the defendant cross-appeals.
In light of the conflicting expert affidavits submitted by the plaintiff and the defendant in support of their motion and cross motion, respectively, we agree with the Supreme Court's denial of the motion and cross motion (see e.g. Colao v. St. Vincent's Med. Ctr. , 65 A.D.3d 660, 662, 885 N.Y.S.2d 306 ; Robinson–Reese v. Kopp, 62 A.D.3d 980, 980, 878 N.Y.S.2d 908 ; Lopez v. Gem Gravure Co., Inc. , 50 A.D.3d 1102, 1103, 858 N.Y.S.2d 226 ; Gleeson–Casey v. Otis El. Co. , 268 A.D.2d 406, 407, 702 N.Y.S.2d 321 ).
BALKIN, J.P., AUSTIN, HINDS–RADIX and CONNOLLY, JJ., concur.