Spallone v. Petroleum Heat & Power Co., Inc.

17 A.D.3d 569, 793 N.Y.S.2d 482, 2005 N.Y. App. Div. LEXIS 4115

Opinion

In an action, inter alia, to recover damages for the negligent filing of a false report of an oil spill, the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated April 1, 2004, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendant’s motion for summary judgment because it failed to establish its prima facie entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The documents and deposition testimony submitted by the defendant in support of its motion did not eliminate the possibility that it negligently assessed the presence of an oil spill on the plaintiffs’ property, thereby prompting it to file an erroneous report with the New York State Department of Environmental Conservation. Moreover, the defendant failed to demonstrate, prima facie, that its negligence was not a proximate cause of the plaintiffs’ damages (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Prudenti, P.J., Schmidt, Luciano and Lifson, JJ., concur.