| Katz v Eastern Constr. Developing & Custom Homes, Inc. |
| 2012 NY Slip Op 07958 [100 AD3d 830] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Nikolai Katz et al., Plaintiffs-Appellants, v EasternConstruction Developing and Custom Homes, Inc., Respondent, and Franks Plumbing andHeating, Appellant. |
—[*1] Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Gerald F. Kirby of counsel), fordefendant-appellant. Farber, Brocks & Zane LLP, Mineola, N.Y. (Braden H. Farber and Tracy L. Frankel ofcounsel), for respondent.
In an action to recover damages for negligence and breach of contract, the plaintiffs appealfrom so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), entered May 26,2011, as granted that branch of the motion of the defendant Eastern Construction Developing andCustom Homes, Inc., which was for summary judgment dismissing the complaint insofar asasserted against it, and the defendant Franks Plumbing and Heating separately appeals from somuch of the order as granted that branch of the motion of the defendant Eastern ConstructionDeveloping and Custom Homes, Inc., which was for summary judgment dismissing the crossclaim against it.
Ordered that the order is affirmed, with one bill of costs payable by the appellants appearingseparately and filing separate briefs.
The defendant Eastern Construction Developing and Custom Homes, Inc. (hereinafterEastern), established its prima facie entitlement to judgment as a matter of law dismissing theplaintiffs' negligence cause of action insofar as asserted against it by submitting evidence that thecause of the subject fire at the plaintiffs' premises was unrelated to its work, and that itcommitted no act from which a jury could rationally infer that it negligently caused the fire (see Tower Ins. Co. v Allstate Ins. Co.,31 AD3d 630 [2006]). In addition, Eastern established its prima facie entitlement todismissal of the plaintiffs' cause of action alleging breach of contract insofar as asserted against itby submitting, among other things, proposals for the work, which did not include fire protectionservices. In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). The plaintiffs' remaining contentions are withoutmerit.
Similarly, Eastern established its prima facie entitlement to judgment as a matter of lawdismissing the cross claim of the defendant Franks Plumbing and Heating (hereinafter Franks).[*2]In opposition, Franks failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted Eastern's motion for summary judgmentdismissing the complaint insofar as asserted against it and the cross claim against it. Skelos, J.P.,Florio, Leventhal and Hall, JJ., concur.[Prior Case History: 2011 NY Slip Op31440(U).]