Hixon v. Congregation Beit Yaakov

57 A.D.3d 328, 869 N.Y.2d 443

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2008
• Status: Published

Opinion

Urban, the subcontractor charged with installing the foundation system for the new structure adjacent to plaintiffs apartment building, failed to meet its initial burden of establishing, prima facie, that the performance of its inherently dangerous excavation work (see Klein v Beta I LLC, 10 AD3d 509, 510 [2004]), did not contribute to the damage to plaintiffs apartment. Although, pursuant to a preclusion order, plaintiff is prevented from offering her own testimony about damages, the motion court appropriately concluded that the preclusion order would not prohibit plaintiff from offering competent evidence at trial, i.e., insurance company reports, to establish damages (see e.g. Ramos v Shendell Realty Group, Inc., 8 AD3d 41 [2004]). Furthermore, contrary to Urban’s contention that the series of floods that damaged plaintiffs apartment after its construction work constituted superseding acts that relieved it from liability, the record shows that the floods occurred both before and after the subject construction work.

We have considered Urban’s remaining arguments and find them unavailing. Concur — Lippman, EJ., Tom, Buckley, Moskowitz and Renwick, JJ.