XLI Corp. v. Battle Construction Co.

50 A.D.3d 1474, 857 N.Y.S.2d 385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2008
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered December 5, 2006. The order, insofar as appealed from, granted in part plaintiffs motion for partial summary judgment on liability.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs and the motion is denied in its entirety.

Memorandum: Plaintiff commenced this action to recover damages for water damage to a manufacturing facility that, according to plaintiff, was negligently constructed by defendant. The parties entered into a contract for the construction of the facility and, according to plaintiff, defendant failed to construct the building in a manner that effectively repelled water. We agree with defendant that Supreme Court erred in granting plaintiffs motion for partial summary judgment on liability with respect to the first and second causes of action. Even assuming, arguendo, that plaintiff met its initial burden on the motion, we conclude that defendant raised an issue of fact whether the water damage was caused by the allegedly defective design of the windows, which the parties agree was the responsibility of the architect rather than defendant. Indeed, the record establishes that water often infiltrated the building during or after wind-driven rain through the window area, and we thus conclude that there is an issue of fact whether the allegedly defective window design caused the persistent leaks (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.