| Corrado v East End Pool & Hot Tub, Inc. |
| 2010 NY Slip Op 00646 [69 AD3d 900] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Nicole Corrado, Respondent, v East End Pool & Hot Tub,Inc., et al., Appellants. |
—[*1] Paris & Chaikin, New York, N.Y. (Jason L. Paris and Sourean A. Israelyan of counsel), forrespondent.
In an action, inter alia, to recover damages for negligence and breach of contract, thedefendants appeal from an order of the Supreme Court, Queens County (Rosengarten, J.), datedMay 13, 2009, which, among other things, denied that branch of their cross motion which wasfor summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' cross motion which was for summary judgment dismissing thecomplaint and substituting therefor a provision granting that branch of the cross motion whichwas for summary judgment dismissing the cause of action to recover damages for negligence andotherwise denying the branch of the cross motion which was for summary judgment dismissingthe complaint with leave to renew after the completion of discovery; as so modified, the order isaffirmed, with costs to the plaintiff.
The gravamen of the negligence cause of action in this case is that the work performed underthe contract was performed in a less than skillful and workmanlike manner. Such a cause ofaction sounds in breach of contract, not negligence (see Staten Is. N.Y. CVS, Inc. v Gordon Retail Dev., LLC, 57 AD3d760, 763 [2008]; Panasuk v ViolaPark Realty, LLC, 41 AD3d 804, 805 [2007]). The plaintiff's allegations of negligenceare "merely a restatement, albeit in slightly different language, of the . . .contractual obligations asserted in the cause[s] of action [alleging] breach of contract"(Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 390 [1987]). Accordingly, theSupreme Court should have granted that branch of the defendants' cross motion which was forsummary judgment dismissing the negligence cause of action.
The defendants failed to meet their prima facie burden of demonstrating entitlement tojudgment as a matter of law on the remaining causes of action (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).As the defendants failed to meet their prima facie burden, we need not consider the sufficiencyof the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]). In any event, the defendants' cross motion was made before discovery wascomplete, and many of the essential issues of fact are within the knowledge of individuals whohave not yet been deposed (see Long Is. Power Auth. v Anderson, [*2]67 AD3d 652 [2009]; Town of Riverhead v County of Suffolk, 66 AD3d 1004 [2009]; Yerushalmi & Assoc., LLP v WestlandOverseas Corp., 21 AD3d 1098, 1099 [2005]).
The defendants' remaining contention is without merit (see CPLR 325 [d]; NY CityCiv Ct Act §§ 201, 202). Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.