| Birch v McGhee |
| 2010 NY Slip Op 09035 [79 AD3d 1296] |
| December 9, 2010 |
| Appellate Division, Third Department |
| David Birch, Appellant, v William W. McGhee et al.,Respondents. |
—[*1] Michael C. Howard, P.C., Hudson (Michael C. Howard of counsel), for William W. McGhee,respondent. Hite & Beaumont, P.C., Albany (John H. Beaumont of counsel), for Hudson City Taxi, Inc.,respondent.
McCarthy, J. Appeals (1) from that part of an amended order of the Supreme Court (Donohue,J.), entered April 7, 2009 in Columbia County, which granted a cross motion by defendant HudsonCity Taxi, Inc. for summary judgment dismissing the complaint against it, and (2) from an order of saidcourt (Czajka, J.), entered July 6, 2010 in Columbia County, upon a dismissal of the complaint at theclose of plaintiff's case.
Plaintiff and defendant William W. McGhee signed a lease providing that McGhee would rentpremises owned by plaintiff for use as an office and garage. McGhee was president and soleshareholder of defendant Hudson City Taxi, Inc., although the lease did not mention that corporateentity or indicate that McGhee signed in a representative capacity. While nonparty William Johnson wasin the garage replacing a fuel pump on a vehicle owned by Hudson City Taxi, an explosion occurredwhich resulted in damage to the building.
Plaintiff commenced this action against McGhee and Hudson City Taxi alleging causes of action forbreach of contract and tortious destruction of property. Following joinder of issue, plaintiff moved forsummary judgment against both defendants and Hudson City Taxi cross-[*2]moved for summary judgment dismissing the complaint against it.Supreme Court (Donohue, J.) denied plaintiff's motion and granted Hudson City Taxi's cross motion.At the conclusion of plaintiff's case during the nonjury trial, Supreme Court (Czajka, J.) grantedMcGhee's motion to dismiss the complaint. Plaintiff appeals.
Supreme Court (Donohue, J.) properly denied plaintiff's motion for summary judgment and grantedHudson City Taxi's cross motion. To support his motion, plaintiff submitted his own affidavit, the leaseand hearsay documents. Plaintiff had no personal knowledge regarding the cause of the explosion andthe double hearsay in the police investigation report did not constitute admissible evidence to supporthis motion (see Coleman v Maclas, 61AD3d 569, 569 [2009]). As this evidence was insufficient to entitle him to judgment as a matter oflaw, the court correctly denied his motion. Hudson City Taxi was not a party to, nor mentioned in, thelease, thereby eliminating any possible liability by that entity for breach of contract (see Pacific Carlton Dev. Corp. v 752 Pac.,LLC, 62 AD3d 677, 678 [2009]; Village of Webster v Monroe County WaterAuth., 269 AD2d 781, 782 [2000]; Won's Cards v Samsondale/Haverstraw Equities,165 AD2d 157, 162 [1991]). Concerning the tort cause of action, Hudson City Taxi presented proofthat Johnson was an independent contractor and that neither defendant directed or controlled how heperformed his work. Hudson City Taxi thus established facts to apply the general rule that a business isnot liable for the negligent acts of an independent contractor (see Luksik v 27 Prospect Park W. Tenants Corp., 19 AD3d 557, 557[2005]; Berger v Dykstra, 203 AD2d 754, 754 [1994], lv dismissed and denied 84NY2d 965 [1994]). Plaintiff did not show that any exceptions to that rule apply (see Hesch vSeavey, 188 AD2d 808, 809-810 [1992]), rendering Hudson City Taxi entitled to summaryjudgment dismissing the complaint against it.
At trial, plaintiff presented testimony from McGhee and himself, along with the lease and one otherdocument. Johnson did not testify, nor did the other individual who was present in the building when theexplosion occurred. None of the evidence explained, from anyone with firsthand knowledge, how thebuilding was apparently destroyed. Thus, plaintiff failed to prove that McGhee was liable for anyensuing damage. Although the lease required McGhee to "surrender the premises in as good conditionas they were received," there is no proof in the record to establish the value of the property before orafter the explosion. Even if we assume that McGhee was responsible for the explosion, the trial recorddoes not contain proof that plaintiff suffered any loss nor provide any way to assess the amount heshould recover in damages, because plaintiff failed to present any proof that the value of his propertywas diminished as a result of the explosion or establishing the amount of that diminution of value. Basedon the paucity of the evidence, Supreme Court (Czajka, J.) did not err in dismissing the complaint dueto the utter lack of proof.
Supreme Court did not err in denying plaintiff's request for a postponement of the trial, as thatrequest was made on the day of trial and he failed to offer any explanation to support the request.Finally, contrary to plaintiff's assertions, the court's evidentiary rulings were proper.
Cardona, P.J., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the amended order andorder are affirmed, without costs.