Cataract Metal Finishing, Inc. v. City of Niagara Falls

• Decision Date: 07 July 2006
• Docket Number: CA 05-02334.
• Citation: 818 N.Y.S.2d 409,2006 NY Slip Op 05422,31 A.D.3d 1129
• Parties: CATARACT METAL FINISHING, INC., Appellant-Respondent, v. CITY OF NIAGARA FALLS et al., Respondents, and CENTIMARK CORPORATION, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 1129

818 N.Y.S.2d 409

2006 NY Slip Op 05422

CATARACT METAL FINISHING, INC., Appellant-Respondent, v. CITY OF NIAGARA FALLS et al., Respondents, and CENTIMARK CORPORATION, Respondent-Appellant.

CA 05-02334.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

July 7, 2006.

Appeal and cross appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered July 28, 2005. The order, among other things, granted defendants' motion and cross motion seeking summary judgment dismissing the amended complaint and denied plaintiff's cross motion seeking partial summary judgment on the issue of liability and seeking summary judgment dismissing the counterclaim.

It is hereby ordered that said cross appeal be and the same hereby is unanimously dismissed and the order is modified on the law by granting plaintiff's cross motion in part and dismissing the counterclaim and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages resulting from a fire that destroyed its metal refinishing plant on February 3, 2000. Plaintiff alleges that defendant Centimark Corporation (Centimark), a roofing contractor that was replacing the roof on the plant at the time of the fire, was negligent in igniting and failing to extinguish a fire on January 29, 2000 that smoldered and caused the fire on February 3, 2000. Plaintiff further alleges that defendants City of Niagara Falls, its fire department and the chief of the fire department (collectively, Niagara Falls defendants) were negligent in using water rather than foam to extinguish the fire. According to plaintiff, hazardous chemicals stored in the plant were released into the area, including the local sewer system, as a result of the negligence of the Niagara Falls defendants.

Supreme Court properly granted the motion of Centimark seeking summary judgment dismissing the amended complaint against it and denied that part of plaintiff's cross motion seeking partial summary judgment on liability against Centimark. Although Centimark's cross appeal from the order must be dismissed because Centimark is not an aggrieved party (see CPLR 5511; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488 [1978]; Matter of Brown v Starkweather, 197 AD2d 840, 841 [1993], lv denied 82 NY2d 653 [1993]), we note that Centimark may nevertheless contend as an alternative basis for affirmance in connection with plaintiff's appeal that it is entitled to summary judgment on a ground rejected by the court (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]; Merz v Seaman, 265 AD2d 385, 386 [1999]). The court granted the motion of Centimark and the cross motion of the Niagara Falls defendants for summary judgment dismissing the amended complaint against them on the ground that plaintiff "failed to establish proof of actual damages which are an essential aspect of a negligence claim" and further determined that, if plaintiff had "establish[ed] proof of actual damages," there were triable issues of fact whether defendants caused or contributed to the fire, thus precluding summary judgment. We agree with Centimark that the court instead should have determined that Centimark was entitled to summary judgment dismissing the amended complaint against it because it established as a matter of law that it did not cause the fire and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Centimark met its initial burden by submitting evidence that the small fire that ignited...