| XLI Corp. v Battle Constr. Co., Inc. |
| 2008 NY Slip Op 03743 [50 AD3d 1474] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| XLI Corporation, Respondent, v Battle Construction Co., Inc.,Appellant. |
—[*1] Fitzsimmons, Nunn, Fitzsimmons & Plukas, LLP, Rochester (John B. Fitzsimmons ofcounsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredDecember 5, 2006. The order, insofar as appealed from, granted in part plaintiff's motion forpartial summary judgment on liability.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs and the motion is denied in its entirety.
Memorandum: Plaintiff commenced this action to recover damages for water damage to amanufacturing facility that, according to plaintiff, was negligently constructed by defendant. Theparties entered into a contract for the construction of the facility and, according to plaintiff,defendant failed to construct the building in a manner that effectively repelled water. We agreewith defendant that Supreme Court erred in granting plaintiff's motion for partial summaryjudgment on liability with respect to the first and second causes of action. Even assuming,arguendo, that plaintiff met its initial burden on the motion, we conclude that defendant raised anissue of fact whether the water damage was caused by the allegedly defective design of thewindows, which the parties agree was the responsibility of the architect rather than defendant.Indeed, the record establishes that water often infiltrated the building during or after wind-drivenrain through the window area, and we thus conclude that there is an issue of fact whether theallegedly defective window design caused the persistent leaks (see generally Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Martoche,Smith, Green and Gorski, JJ.