Opinion
2013-04-18
VERIZON NEW YORK INC., Plaintiff–Respondent, v. SKANSKA USA CIVIL NORTHEAST INC., formerly known as Slattery Skanska Inc., Defendant–Appellant.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellant. Solomon and Solomon, P.C., Albany (Harold L. Solomon of counsel), for respondent.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellant. Solomon and Solomon, P.C., Albany (Harold L. Solomon of counsel), for respondent.
TOM, J.P., SWEENY, SAXE, ROMÁN, FEINMAN, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered October 10, 2012, which, to the extent appealed from, denied defendant's motion for summary judgment, unanimously affirmed, without costs.
Defendant failed to make a prima facie showing that its construction activities did not contribute to the damage suffered by plaintiff's cables. Specifically, while defendant set forth evidence that it was not performing work in the vicinity of the water main break at the time that the leak was first observed, it failed to address evidence that it had performed secant pile drilling operations in the area of the leak, a few days prior. Since no evidence was offered that proper precautions were taken during the drilling, defendant failed to meet its initial burden as movant ( see Hixon v. Congregation Beit Yaakov, 57 A.D.3d 328, 869 N.Y.S.2d 443 [1st Dept. 2008] ).
Plaintiff's cables were not “key evidence” on the issue being litigated—namely, whether defendant caused the water main break that led to the cables becoming wet and failing. Thus, the motion court properly denied that portion of defendant's motion seeking summary judgment based upon plaintiff's disposal of portions of the involved cables six months after the incident ( see Shapiro v. Boulevard Hous. Corp., 70 A.D.3d 474, 476, 895 N.Y.S.2d 53 [1st Dept. 2010] ).