| Hixon v Congregation Beit Yaakov |
| 2008 NY Slip Op 09894 [57 AD3d 328] |
| December 18, 2008 |
| Appellate Division, First Department |
| Verina Hixon, Respondent, v Congregation Beit Yaakov, aNew York Non-Profit Religious Corporation, et al., Defendants, and Urban FoundationEngineering, LLC, Appellant. (And a Third-Party Action.) |
—[*1] Paul Coppe, New York, for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 27, 2007,which, insofar as appealed from as limited by the briefs in an action for property damage toplaintiff's cooperative apartment allegedly caused by defendants' construction work on anadjacent building, denied the motion of defendant Urban Foundation Engineering, LLC (Urban)for summary judgment dismissing the complaint as against it, unanimously affirmed, withoutcosts.
Urban, the subcontractor charged with installing the foundation system for the new structureadjacent to plaintiff's apartment building, failed to meet its initial burden of establishing, primafacie, that the performance of its inherently dangerous excavation work (see Klein v Beta I LLC, 10 AD3d509, 510 [2004]), did not contribute to the damage to plaintiff's apartment. Although,pursuant to a preclusion order, plaintiff is prevented from offering her own testimony aboutdamages, the motion court appropriately concluded that the preclusion order would not prohibitplaintiff from offering competent evidence at trial, i.e., insurance company reports, to establishdamages (see e.g. Ramos v ShendellRealty Group, Inc., 8 AD3d 41 [2004]). Furthermore, contrary to Urban's contention thatthe series of floods that damaged plaintiff's apartment after its construction work constitutedsuperseding acts that relieved it from liability, the record shows that the floods occurred bothbefore and after the subject construction work.[*2]
We have considered Urban's remaining arguments andfind them unavailing. Concur—Lippman, P.J., Tom, Buckley, Moskowitz and Renwick,JJ.