| Kramer v Oil Servs., Inc. |
| 2008 NY Slip Op 09362 [56 AD3d 730] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Nancy Kramer, Respondent, v Oil Services, Inc.,Appellant. (Action No. 1.) State Farm Fire & Casualty Company, as Subrogee of Nancy Kramer,Respondent, v Oil Services, Inc., Appellant. (Action No. 2.) (And RelatedActions.) |
—[*1] Sherri L. Kaplan, Jericho, N.Y., for respondent Nancy Kramer. Stuart D. Markowitz, P.C., Jericho, N.Y., for respondent State Farm Fire & CasualtyCompany, as subrogee of Nancy Kramer.
In two related actions, inter alia, to recover damages for injury to property, the defendant OilServices, Inc., appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), datedMarch 8, 2007, which granted those branches of the respective motions of the plaintiffs in bothactions which were for summary judgment on the issue of liability pursuant to Navigation Law§ 181.
Ordered that the order is reversed, on the law, with one bill of costs, and those branches ofthe respective motions of the plaintiffs in both actions which were for summary judgment on the[*2]issue of liability pursuant to Navigation Law § 181 aredenied.
The plaintiffs Nancy Kramer and State Farm Fire & Casualty Company, as subrogee ofNancy Kramer (hereinafter the plaintiffs), commenced separate actions against Oil Services, Inc.(hereinafter Oil Services) to recover damages resulting from a discharge of oil which occurred atthe residence of the plaintiff Nancy Kramer. The plaintiffs each moved for summary judgment onthe issue of liability and relied primarily on an affidavit by Kramer wherein she stated that an OilServices' technician told her that his hand pumping of the oil line had caused a rupture in thepipe, which resulted in the spill. This hearsay evidence was insufficient to satisfy the plaintiffs'burden of establishing their prima facie entitlement to judgment as a matter of law on the issue ofliability (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Stock v OtisEl. Co., 52 AD3d 816 [2008]; Wen Ying Ji v Rockrose Dev. Corp., 34 AD3d 253,254 [2006]; AIU Ins. Co. v American Motorists Ins. Co., 8 AD3d 83, 85 [2004];Rodriguez v Sixth President, 4 AD3d 406, 407 [2004]). Also insufficient was theplaintiffs' reliance on handwritten notes of the Oil Services' technician, as the plaintiffs failed toestablish their admissibility under the business records exception (see CPLR 4518 [a];Hochhauser v Electric Ins. Co., 46 AD3d 174, 179 [2007]).
Moreover, although the plaintiffs claimed that Oil Services was contractually obligated tomaintain the heating equipment that had leaked, they provided no proof of such. Liability underNavigation Law article 12 is predicated on a potentially responsible party's capacity to take actionto prevent an oil spill or to clean up the resulting contamination (see State of New York vSpeonk Fuel, Inc., 3 NY3d 720, 724 [2004]; State of New York v Green, 96 NY2d403, 405 [2001]). Here, summary judgment was erroneously awarded to the plaintiffs, as theypresented no evidence that Oil Services was a "discharger" pursuant to Navigation Law §181 (see Navigation Law § 181 [1]; § 172 [8]; cf. State of NewYork v Joseph, 29 AD3d 1233, 1235-1236 [2006]; State of New York v Avery-HallCorp., 279 AD2d 199, 201-202 [2001]; Domermuth Petroleum Equip. & MaintenanceCorp. v Herzog & Hopkins, 111 AD2d 957 [1985]).
Motion by the respondent Nancy Kramer on an appeal from an order of the Supreme Court,Nassau County, dated March 8, 2007, inter alia, to strike the appellant's reply brief on the groundthat it improperly raises additional issues not raised in the main brief. By decision and order onmotion of this Court dated April 17, 2008, the motion was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is granted to the extent that the following portions of the reply briefare stricken and have not been considered in the determination of the appeal: (1) the firstsentence of the second full paragraph on page 2; and (2) starting with the fourth sentence of thesecond full paragraph on page 2 through the end of that paragraph on the top of page 3; and it isfurther,
Ordered that the motion is otherwise denied. Rivera, J.P., Dillon, Covello and McCarthy, JJ.,concur.