Maurice Graubart & Sons, Inc. v. John Di Guilio, Inc.

• Decision Date: 12 July 1990
• Citation: 163 A.D.2d 698,558 N.Y.S.2d 302
• Court: New York Supreme Court — Appellate Division
• Parties: MAURICE GRAUBART & SONS, INC., et al., Appellants, v. JOHN Di GUILIO, INC., et al., Respondents, et al., Defendant.

Page 302

558 N.Y.S.2d 302

163 A.D.2d 698

MAURICE GRAUBART & SONS, INC., et al., Appellants, v. JOHN Di GUILIO, INC., et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division,

Third Department.

July 12, 1990.

Pattison, Sampson, Ginsberg & Griffin, P.C. (Jeffrey R. Armstrong, of counsel), Troy, for appellants.

Horigan, Horigan, Pennock & Lombardo, P.C. (Thomas V. Blaber, of counsel), Amsterdam, for John Di Guilio, Inc., respondent.

Pentak, Brown & Tobin (Edwin J. Tobin, of counsel), Albany, for Niagara Mohawk Power Corp., for respondent.

Before KANE, J.P., and CASEY, MERCURE and HARVEY, JJ.

CASEY, Justice.

Appeals (1) from that part of an order of the Supreme Court (Doran, J.), entered August 1, 1989 in Schenectady County, which granted defendant Niagara Mohawk Power Corporation's cross motion for summary judgment, inter alia, dismissing the complaint against it, and (2) from an order of said court, entered October 18, 1989 in Schenectady County, which, inter alia, granted defendant John Di Guilio, Inc.'s motion for summary judgment dismissing the complaint against it.

A water main break in the vicinity of the intersection of Franklin and Jay Streets in the City of Schenectady, Schenectady County, caused the nearby basement premises of plaintiffs to flood, with resulting damage. As a consequence, plaintiffs sued defendants City of Schenectady, Niagara Mohawk Power Corporation (hereinafter NIMO) and John Di Guilio, Inc., the prime contractor on the replacement of the roadway and sidewalks of Jay Street with a pedestrian walkway, which was completed several months prior to the water main break. It is conceded that backhoes and jackhammers had been used in the general vicinity of the break to remove pavement, but Di Guilio had only worked about one foot down into Franklin Street. Di Guilio's work also included the abandonment and/or removal of two stormwater catch basins and the plugging of a clay pipe which connected one of the catch basins to a manhole in the sanitary sewer system, to prevent storm water from entering the sanitary sewer system.

During the project, NIMO replaced an existing gas main in Jay Street about 36 inches beneath the roadway and seven feet from the west curb on Jay Street. The only additional work performed by NIMO was to raise the manhole covers to meet the level of the sidewalk and to install holes in the covers to permit passage of the street light conduits which Di Guilio had installed. At the site of the break, various subterranean utility lines and pipes had previously been installed by every utility that serviced the City, including NIMO. When the debris was cleaned away and the water shut down at the time of the break, the discharge of the water was traced to a rusted and corroded plug that had broken off the water main.

Following joinder of issue, the City moved and NIMO cross-moved for summary judgment dismissing the complaint. Subsequently, Di Guilio moved for summary judgment dismissing the complaint against it and NIMO cross-moved for summary judgment as to the cross claim...