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Hixon v. Congregation Beit Yaakov

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 18, 2008

VERINA HIXON, PLAINTIFF-RESPONDENT,
v.
CONGREGATION BEIT YAAKOV, A NEW YORK NON-PROFIT RELIGIOUS CORPORATION, ET AL., DEFENDANTS,
URBAN FOUNDATION ENGINEERING, LLC, DEFENDANT-APPELLANT. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 27, 2007, which, insofar as appealed from as limited by the briefs in an action for property damage to plaintiff's cooperative apartment allegedly caused by defendants' construction work on an adjacent building, denied the motion of defendant Urban Foundation Engineering, LLC (Urban) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Tom, Buckley, Moskowitz, Renwick, JJ.

120547/01

Urban, the subcontractor charged with installing the foundation system for the new structure adjacent to plaintiff's 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 plaintiff's 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 plaintiff's 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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081218

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