| O'Halloran v City of New York |
| 2010 NY Slip Op 08449 [78 AD3d 536] |
| November 18, 2010 |
| Appellate Division, First Department |
| James O'Halloran et al., Plaintiffs, v City of New York,Defendant and Third-Party Plaintiff-Respondent. The Halcyon Construction Corp., Third-PartyDefendant-Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), forrespondent.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 8, 2010, whichdenied third-party defendant's motion for summary judgment dismissing the third-party complaint,unanimously affirmed, without costs.
Plaintiffs and their insurer, Greenwich Insurance Company, commenced the underlying action,alleging that the City, its agents and employees, were negligent in the repair of a sewer line, causingplaintiffs' property to be "inundated with sewage," and resulting in damages of $84,030.97. The Citysubsequently commenced the subject third-party action for indemnification and contribution againstHalcyon, alleging that it was negligent in its repair of plaintiffs' property.
The proponent of summary judgment must establish its defense or cause of action sufficiently towarrant a court's directing judgment in its favor as a matter of law (Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). If this burden is not met, summary judgment must be denied,regardless of the sufficiency of the opposition papers (Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
The evidence submitted by Halcyon, specifically, inspection reports, the affidavit of its supervisor,and the deposition testimony of its foreman and a city inspector, fails to affirmatively establish that it didnot cause or contribute to the flooding and/or sewage inundation at plaintiffs' property, and thus, itsmotion was properly denied without consideration of the City's opposition. Even if Halcyon hadestablished its prima facie case, the motion was nonetheless properly denied, as plaintiff's testimony thathe personally witnessed the secondary collapse and heard [*2]waterafter the backhoe began "aggressively" and that he heard unnamed employees of Halcyon tell theirsupervisor, "All right, we broke his pipe," created triable issues of fact. Contrary to Halcyon'scontention, hearsay evidence may be considered to defeat a motion for summary judgment as long as itis not the only evidence submitted in opposition (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525 [2010]).Concur—Tom, J.P., Andrias, Nardelli, Acosta and DeGrasse, JJ. [Prior Case History: 27Misc 3d 1209(A), 2010 NY Slip Op 50634(U).]