J. P. Lieberman & Son, Inc. v. Samuel Schlosberg, Inc.

Appellate Division of the Supreme Court of New York

J. P. Lieberman & Son, Inc. v. Samuel Schlosberg, Inc.

25 A.D.2d 768, 269 N.Y.S.2d 241, 1966 N.Y. App. Div. LEXIS 4519

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

DecidedApril 11, 1966

StatusPublished

This text of 25 A.D.2d 768 (J. P. Lieberman & Son, Inc. v. Samuel Schlosberg, Inc.) 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

J. P. Lieberman & Son, Inc. v. Samuel Schlosberg, Inc., 25 A.D.2d 768, 269 N.Y.S.2d 241, 1966 N.Y. App. Div. LEXIS 4519 (N.Y. Ct. App. 1966).

Pincite

Opinion

In an action to recover damages arising out of negligent and unworkmanlike performance of a contract to install plumbing and related facilities in the construction of a building, plaintiff appeals from an order of the Supreme Court, Queens County, entered August 13, 1965, which denied its motion for summary judgment, with a direction for an assessment of damages pursuant to CPLR 3212 (subd. [e]). Order reversed, with $10 costs and disbursements; plaintiff’s motion granted; and action remitted to the court below for the purpose of determining and assessing the damages and for the entry of an appropriate judgment in plaintiff’s favor. In our opinion, the motion papers raise no triable issue of fact sufficient to preclude granting of the motion. It is not denied that defendant guaranteed that the work would be performed in a good and workmanlike manner and that the materials furnished would be of good quality and suitable for the purposes intended. The record contains an admission by defendant's president that the leaks which occurred on the project were due to “weak connections that were made by our steamfitters” which “ opened up when they were subjected to normal expansion and contraction.” The president’s affidavit in opposition to the motion does not deny or attempt to explain that admission. Defendant’s general heating and air-conditioning superintendent testified on an examination before trial that the pipe installed by defendant had broken away from the fitting because of inadequate threading. No attempt was made to explain the superintendent’s admission. In the absence of any exculpatory explanation as to how this break in a pipe behind a closed wall could have occurred, no triable issue of fact as to defendant’s liability was presented.

Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.

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In an action to recover damages arising out of negligent and unworkmanlike performance of a contract to install plumbing and related facilities in the construction of a building, plaintiff appeals from an order of the Supreme Court, Queens County, entered August 13, 1965, which denied its motion for summary judgment, with a direction for an assessment of damages pursuant to CPLR 3212 (subd. [e]). Order reversed, with $10 costs and disbursements; plaintiff’s motion granted; and action remitted to the court below for the purpose of determining and assessing the damages and for the entry of an appropriate judgment in plaintiff’s favor. In our opinion, the motion papers raise no triable issue of fact sufficient to preclude granting of the motion. It is not denied that defendant guaranteed that the work would be performed in a good and workmanlike manner and that the materials furnished would be of good quality and suitable for the purposes intended. The record contains an admission by defendant's president that the leaks which occurred on the project were due to “weak connections that were made by our steamfitters” which “ opened up when they were subjected to normal expansion and contraction.” The president’s affidavit in opposition to the motion does not deny or attempt to explain that admission. Defendant’s general heating and air-conditioning superintendent testified on an examination before trial that the pipe installed by defendant had broken away from the fitting because of inadequate threading. No attempt was made to explain the superintendent’s admission. In the absence of any exculpatory explanation as to how this break in a pipe behind a closed wall could have occurred, no triable issue of fact as to defendant’s liability was presented.

Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.

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Bluebook (online)

25 A.D.2d 768, 269 N.Y.S.2d 241, 1966 N.Y. App. Div. LEXIS 4519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-p-lieberman-son-inc-v-samuel-schlosberg-inc-nyappdiv-1966.