Verizon New York Inc. v. Skanska USA Civil Northeast Inc.

Appellate Division of the Supreme Court of New York

Verizon New York Inc. v. Skanska USA Civil Northeast Inc.

105 A.D.3d 573, 964 N.Y.S.2d 33

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

DecidedApril 18, 2013

StatusPublished

This text of 105 A.D.3d 573 (Verizon New York Inc. v. Skanska USA Civil Northeast 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

Verizon New York Inc. v. Skanska USA Civil Northeast Inc., 105 A.D.3d 573, 964 N.Y.S.2d 33 (N.Y. Ct. App. 2013).

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Opinion

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 plaintiffs 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 AD3d 328 [1st Dept 2008]).

Plaintiffs 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 plaintiffs disposal of portions of the involved cables six months after the incident (see Shapiro v Boulevard Pious. Corp., 70 AD3d 474, 476 [1st Dept 2010]).

Concur—Tom, J.E, Sweeny, Saxe, Román and Feinman, JJ.

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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 plaintiffs 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 AD3d 328 [1st Dept 2008]).

Plaintiffs 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 plaintiffs disposal of portions of the involved cables six months after the incident (see Shapiro v Boulevard Pious. Corp., 70 AD3d 474, 476 [1st Dept 2010]).

Concur—Tom, J.E, Sweeny, Saxe, Román and Feinman, JJ.

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Bluebook (online)

105 A.D.3d 573, 964 N.Y.S.2d 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verizon-new-york-inc-v-skanska-usa-civil-northeast-inc-nyappdiv-2013.

Opinion

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