| Canarick v Cicarelli |
| 2007 NY Slip Op 09713 [46 AD3d 587] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Jeffrey Canarick et al., Appellants, v Frank Cicarelli et al.,Defendants, and James R. Petty et al., Respondents. |
—[*1] Curtis Vasile, Merrick, N.Y. (Michael J. Dorry of counsel), for respondents.
In an action, inter alia, to recover damages for injury to property, the plaintiffs appeal froman order of the Supreme Court, Nassau County (De Maro, J.), entered November 2, 2006, whichgranted the motion of the defendants James R. Petty and Lyubov Petty for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
By deed dated February 28, 2005, the defendants James R. Petty and Lyubov Petty(hereinafter the Pettys) transferred certain real property located in Woodbury (hereinafter thesubject property) to the defendant Frank Cicarelli and his wife. Cicarelli and his wife retained theservices of the defendant Charles W. Kuehn, an architect, and the defendant Lunasol Builders,Inc., a contractor, to design and construct a one-family house on the subject property. Thedefendants Huntington Landscaping and Contracting, Inc., and Wallart, Inc., were retained,respectively, to excavate the subject property and to construct a retaining wall along that portionof the subject property that abuts the plaintiffs' property. The plaintiffs commenced this action torecover damages for injury to their property allegedly caused by, inter alia, the foregoingexcavation activities on the subject property.
The Pettys established their prima facie entitlement to judgment as a matter of law bydemonstrating, through the affidavit of James R. Petty, that they neither retained the services of[*2]anyone to excavate, construct a retaining wall, or removetrees from the subject property, nor personally were engaged in any of those activities. Theaffidavits and documentary evidence of the Pettys' codefendants also demonstrated that Cicarelliand his wife, and not the Pettys, retained the services of the architect and the various contractorsto excavate and construct a retaining wall on the subject property.
The assertions made by the plaintiff Jeffrey Canarick, in his affidavit in opposition, regardingthe purported involvement of the Pettys in the activities which allegedly caused damage to theplaintiffs' property, were speculative and conclusory, and contradicted by evidence in the record(see Carpio v Leahy Mech. Corp.,30 AD3d 554, 555 [2006]). Thus, the plaintiffs' submissions were insufficient to raise atriable issue of fact (see generallyHaberman v Cheesecake Factory Rests., Inc., 43 AD3d 392, 393 [2007]; Carpio v Leahy Mech. Corp., 30 AD3d554, 555 [2006]). Moreover, the motion was not premature since the plaintiffs failed to offeran evidentiary basis to show that additional discovery might have led to relevant evidence(see Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Arpi v New York City Tr. Auth., 42 AD3d 478 [2007]; Ruttura& Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]), or that the factsessential to oppose the motion were exclusively within the knowledge and control of the Pettys(see Juseinoski v New York Hosp. Med.Ctr. of Queens, 29 AD3d 636 [2006]; Baron v Incorporated Vil. of Freeport, 143AD2d 792 [1988]). Schmidt, J.P., Skelos, Covello and Balkin, JJ., concur.