Opinion
108759/04.
Decided March 4, 2010.
By notice of motion dated December 3, 2009, third-party defendant Halcyon Construction Corp. (Halcyon) moves pursuant to CPLR 3212 for an order summarily dismissing City of New York's (City) third-party claims against it. City opposes the motion; plaintiffs do not oppose. For the reasons that follow, Halcyon's motion is denied.
I. UNDISPUTED FACTUAL BACKGROUND
On April 3, 2003, the sewer in front of the building in which the O'Halloran plaintiffs live collapsed, creating a hole in the street which was so large that an entire fire truck fell into it. (Affirmation of Richard A. Fogel, Esq., dated Dec. 3, 2009) [Fogel Aff.], Exh. A). Although Halcyon was usually hired by City to repair water lines and not sewer lines, on April 4, Halcyon excavated the street until it exposed and removed the damaged sewer pipe, installed new sewer pipe, and connected the new sewer pipe to the remaining old sewer pipe. ( Id.). The hole in the street, however, remained. (Affidavit of Vanessa R. Campagna, Esq., dated Jan. 20, 2010 [Campagna Aff.], Exh. A, at 32, 34). On April 17, 2009, Halcyon returned to the scene, resumed work, and on the morning of April 18, raw sewage entered plaintiff's property. ( Id. at 35, 37; Fogel Aff., Exh. A).
II. PERTINENT PROCEDURAL BACKGROUND
On June 14, 2004, plaintiffs James and Marilyn O'Halloran and their insurer, plaintiff Greenwich Insurance Company, filed suit against City, seeking damages incurred as a result of the sewage leak. (Fogel Aff., Exh. A). On September 19, 2006, plaintiff's witness, Kevin O'Halloran, the managing owner of the building, testified at a deposition that on April 4:
[Halcyon] pulled up with a backhoe and [] started striking the area of the road surface around the sinkhole that opened with the shovel end of the backhoe in a pretty aggressive manner and causing secondary collapses of the street.
As soon as they did that, I could hear the water running. I was standing outside watching them. I could hear the water running immediately as soon as they struck and caused the collapse.
One of the collapses pulled the water main, the one and a quarter inch water main that serviced my building. The dirt collapsed on top of it, pushing it down and actually pulled it and tore the pipe out of the first floor of my apartment building . . .
(Campagna Aff., Exh. A, at 19-20). He also heard unidentified Halcyon employees, upon seeing what had happened, admit to a Halcyon supervisor that they had broken the O'Hallorans's pipe. ( Id. at 26-27). When O'Halloran later contacted Halcyon about the damage, he was told that Halcyon is City's agent and was advised to file a claim with City, not Halcyon. ( Id. at 29).
Freddy Ricci, City's inspector at the site, testified at a deposition on February 8, 2007. (Fogel Aff., Exh. F). He responded to the scene on April 17 in furtherance of his job to oversee Halcyon's work. ( Id. at 11). He had no knowledge of previous work at the site, and was unable to identify the City inspector who had signed a Time Material Inspector Report for the work done on April 3 and 4. ( Id. at 35, 46, Exh. E). All of the Inspector Reports were also signed by Halcyon's supervisor, Joseph Monte, who noted in the April 3 report, that the water service to plaintiffs' building "was damaged due to the collapsed . . . sewer." ( Id., Exhs. E, F at 55-56).
On May 17, 2007, City filed a third-party summons and complaint against Halcyon.
On February 2, 2009, Halcyon's foreman Gerardo Vasquez testified at a deposition. Plaintiff filed a note of issue and certificate of readiness on September 30, 2009.
III. HALCYON'S MOTION TO DISMISS A. Contentions
Halcyon argues that City cannot meet its burden of proving that it was negligent or that its negligence caused plaintiffs' damages, given the presence at the site of a City inspector who observed and approved all of Halcyon's work. (Fogel Aff.). It relies on the deposition testimony of two City inspectors, although it attaches only Ricci's deposition, along with the above-mentioned work orders, and the affidavit of one of its supervisors, Joseph Monte, who states that Halcyon performed the work according to the proper procedure and denies that it caused plaintiff's damages. ( Id., Exhs. E, F; Affidavit of Joseph Monte, dated Nov. 23, 2009). It also references a deposition of one of its supervisors without furnishing a copy of it. (Fogel Aff.).
In opposition, City maintains that Halcyon has failed to offer evidence sufficient to prove that the work was performed in reasonable manner or that it did not create or exacerbate the condition that led to plaintiff's property damage. (Campagna Aff.). City also claims that there exist issues of fact as to Halcyon's negligence, as evidenced by Kevin O'Halloran's testimony concerning the conduct of Halcyon's employees on April 4 and the fact that on April 18, after Halcyon returned to the scene to conduct additional work, sewage entered the O'Halloran plaintiffs' apartment. ( Id.).
In reply, Halcyon argues that City's evidence proves nothing more than Halcyon's presence at the scene, performing work that City approved, and asserts that the damage was caused by the sewer main's collapse, which in turned caused the sewer line to fail and the sewage to escape. (Fogel Reply Aff.). It also maintains that City misunderstands the burden on the movant in seeking summary judgment by seeking to compel it to prove a negative. Rather, Halcyon contends that the burden is on City to produce evidence to raise a substantial issue of fact requiring a trial. ( Id.). It now explains its failure to submit the deposition transcript it referenced in its motion as an effort to avoid unnecessary duplicativeness and attaches it to the reply. ( Id., Exh. A).
B. Analysis
It is well-settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." ( Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals, Inc. v Associated Fur Mfrs, Inc., 46 NY2d 1065, 1067). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers. ( Winegrad, 64 NY2d 851, 853).
Pointing to gaps in an opponent's proof does not ordinarily satisfy the movant's prima facie burden. Rather, the movant must affirmatively demonstrate the merit of its claim or defense. ( Alvarez v 21st Century Renovations Ltd. , 66 AD3d 524 , 525 [1st Dept 2009]; Mennerich v Esposito , 4 AD3d 399 , 400 [2d Dept 2004]; George Larkin Trucking Co. v Lisbon Tire Mart, Inc., 185 AD2d 614, 615 [4th Dept 1992]). Thus, a defendant moving for summary judgment must submit evidence which negates, prima facie, an essential element of the plaintiff's cause of action. ( Rosabella v Metro. Trans. Auth., 23 AD3d 365, 366 [2d Dept 2005]).
When the moving party has demonstrated entitlement to summary judgment, the burden of proof shifts to the opposing party to demonstrate by admissible evidence the existence of a factual issue requiring trial. ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman, 49 NY2d 557, 562). The opposing party must "lay bare" its evidence ( Silbertstein, Awad Miklos v Carson, 304 AD2d 817, 818 [1st Dept 2003]); "unsubstantiated allegations and assertions are insufficient" ( Zuckerman, 49 NY2d 557, 562).
Although Halcyon argues that City's oversight and approvals of its work precludes summary dismissal in City's favor, it provides no supporting legal authority or sufficient admissible evidence. Moreover, it is reasonably inferred from Ricci's testimony that the sewer repair was a collective effort by City and Halcyon. That Ricci never accused Halcyon of negligence does not satisfy Halcyon's burden of proof. ( See Peskin v NYCTA, 304 AD2d 634 [2d Dept 2003] ["a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense"]; cf Manning v 6638 18th Ave. Realty Corp. , 28 AD3d 434 [2d Dept 2006] [defendant met its burden by demonstrating that plaintiff merely speculated as to cause of her accident]).
Monte's affidavit, moreover, is too conclusory and self-serving to provide a basis for granting Halcyon's motion. ( See Winegrad, 64 NY2d at 853 ["bare conclusory assertions" by defendants "do not establish that the cause of action has no merit as to entitle defendants to summary judgment"]). Given Halcyon's representation that the deposition transcript it failed to submit with its motion is duplicative, it is not considered.
For all of these reasons, Halcyon has failed to establish, prima facie, that it did not cause plaintiffs' damages.
IV. CONCLUSION
Accordingly, it is
ORDERED, that third-party plaintiff's motion for summary judgment is denied.
This constitutes the decision and order of the court.