O'Halloran v. City of N.Y.

• Decision Date: 18 November 2010
• Citation: 911 N.Y.S.2d 333,78 A.D.3d 536
• Parties: James O'HALLORAN, et al., Plaintiffs, v. CITY OF NEW YORK, Defendant. City of New York, Third-Party Plaintiff-Respondent, v. The Halcyon Construction Corp., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 333
78 A.D.3d 536

James O'HALLORAN, et al., Plaintiffs,
v.
CITY OF NEW YORK, Defendant.
City of New York, Third-Party Plaintiff-Respondent,
v.
The Halcyon Construction Corp., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Nov. 18, 2010.

911 N.Y.S.2d 334

Law Offices of Richard A. Fogel, P.C., Islip (Richard A. Fogel of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondent.

TOM, J.P., ANDRIAS, NARDELLI, ACOSTA, DeGRASSE, JJ.

78 A.D.3d 537

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 8, 2010, which denied third-party defendant's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Plaintiffs and their insurer, Greenwich Insurance Company, commenced the underlying action, alleging that the City, its agents and employees, were negligent in the repair of a sewer line, causing plaintiffs' property to be "inundated with sewage," and resulting in damages of $84,030.97. The City subsequently commenced the subject third party action for indemnification and contribution against Halcyon, alleging that it was negligent in its repair of plaintiffs' property.

The proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

The evidence submitted by Halcyon, specifically, inspection reports, the affidavit of its supervisor, and the deposition testimony of its foreman and a City inspector, fails to affirmatively establish that it did not cause or contribute to the flooding and/or sewage inundation at plaintiffs' property, and thus, its motion was properly denied without consideration of the City's opposition. Even if Halcyon had established its prima facie case, the motion was...