New York Supreme and/or Appellate Courts Appellate Division, First Department
April 18, 2013
VERIZON NEW YORK INC., PLAINTIFF-RESPONDENT, ----
SKANSKA USA CIVIL NORTHEAST INC., FORMERLY KNOWN AS SLATTERY SKANSKA INC., DEFENDANT-APPELLANT.
Verizon N.Y. Inc. v Skanska USA Civ. Northeast Inc.
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.
Decided on April 18, 2013
Tom, J.P., Sweeny, Saxe, Roman, Feinman, JJ.
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 plaintiff's 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]).
Plaintiff's 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 plaintiff's disposal of portions of the involved cables six months after the incident (see Shapiro v Boulevard Hous. Corp., 70 AD3d 474, 476 [1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 18, 2013
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