Fiorenza v. A&A Consulting Engineers, P.C.

Appellate Division of the Supreme Court of New York

Fiorenza v. A&A Consulting Engineers, P.C.

77 A.D.3d 569, 909 N.Y.S.2d 356

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 2010

StatusPublished

This text of 77 A.D.3d 569 (Fiorenza v. A&A Consulting Engineers, P.C.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fiorenza v. A&A Consulting Engineers, P.C., 77 A.D.3d 569, 909 N.Y.S.2d 356 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Alexander W Hunter, Jr., J.), entered July 7, 2009, which, to the extent appealed from as limited by the briefs, granted defendant A&A’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

In opposition to the prima facie showing that A&A (the remaining defendant in this action) had complied with its contractual obligations, plaintiff failed to raise a triable question of fact by offering competent evidence, in admissible form, that, if credited by a jury, would be sufficient to rebut the movant’s proof (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Indeed, despite accusing A&A of various wrongdoing, plaintiff was unable to produce any documentary evidence or affidavit, expert or otherwise, that A&A had somehow been deficient in the manner in which it performed its contractual obligations. Moreover, the February 5, 2004 contract between the parties included a limitation-of-liability clause, which is ordinarily enforced unless it expresses an intention to relieve a party of its own grossly negligent conduct (see Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]). Plaintiffs claims of breach of contract against A&A, even if true, do not indicate a reckless disregard for the rights of others or smack of intentional wrongdoing such as would constitute gross negligence. Concur— Andrias, J.P., Nardelli, Moskowitz, DeGrasse and Román, JJ. [Prior Case History: 24 Misc 3d 1203(A), 2009 NY Slip Op 51237(11).]

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Order, Supreme Court, Bronx County (Alexander W Hunter, Jr., J.), entered July 7, 2009, which, to the extent appealed from as limited by the briefs, granted defendant A&A’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

In opposition to the prima facie showing that A&A (the remaining defendant in this action) had complied with its contractual obligations, plaintiff failed to raise a triable question of fact by offering competent evidence, in admissible form, that, if credited by a jury, would be sufficient to rebut the movant’s proof (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Indeed, despite accusing A&A of various wrongdoing, plaintiff was unable to produce any documentary evidence or affidavit, expert or otherwise, that A&A had somehow been deficient in the manner in which it performed its contractual obligations. Moreover, the February 5, 2004 contract between the parties included a limitation-of-liability clause, which is ordinarily enforced unless it expresses an intention to relieve a party of its own grossly negligent conduct (see Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]). Plaintiffs claims of breach of contract against A&A, even if true, do not indicate a reckless disregard for the rights of others or smack of intentional wrongdoing such as would constitute gross negligence. Concur— Andrias, J.P., Nardelli, Moskowitz, DeGrasse and Román, JJ. [Prior Case History: 24 Misc 3d 1203(A), 2009 NY Slip Op 51237(11).]

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Bluebook (online)

77 A.D.3d 569, 909 N.Y.S.2d 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fiorenza-v-aa-consulting-engineers-pc-nyappdiv-2010.

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