| Long Is. Light. Co. v Town of N. Hempstead |
| 2012 NY Slip Op 08700 [101 AD3d 956] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Long Island Lighting Company, Doing Business as LIPA,Respondent, v Town of North Hempstead, Appellant, et al.,Defendant. |
—[*1] Cullen and Dykman LLP, Brooklyn, N.Y. (Kevin C. McCaffrey of counsel), for respondent. Mound Cotton Wollan & Greengrass, New York, N.Y. (Paul S. Danner, John F. Parker, andRenee M. Plessner of counsel), for defendant Eastern Locating Services, Inc.
In an action, inter alia, to recover damages for negligence, the defendant Town of NorthHempstead appeals from so much of an order of the Supreme Court, Nassau County (Jaeger, J.),entered May 24, 2011, as denied its motion for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendant Town of North Hempstead which was for summaryjudgment dismissing the second cause of action, and substituting therefor a provision grantingthat branch of the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The defendant Town of North Hempstead failed to establish its prima facie entitlement tojudgment as a matter of law dismissing, insofar as asserted against it, the first and third causes ofaction, which were to recover damages for negligence and breach of contract, respectively (see Rush v Swimming Pools by JackAnthony, Inc., 98 AD3d 728, 729-730 [2012]; City of Albany v Central LocatingServ., 228 AD2d 920, 922 [1996]). Consequently, it was unnecessary to consider the paperssubmitted by the plaintiff in opposition to the motion insofar as they related to those causes ofaction (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d at 730).Accordingly, the Supreme Court properly denied those branches of the Town's motion whichwere for summary judgment dismissing the first and third causes of action insofar as assertedagainst it.
The Town, however, met its prima facie burden with respect to that branch of its motionwhich was for summary judgment dismissing, insofar as asserted against it, the second cause ofaction, which sought damages for an alleged violation of General Business Law article 36 and 16[*2]NYCRR part 753 (see City of Albany v Central LocatingServ., 228 AD2d at 922). Since, in opposition, the plaintiff failed to raise a triable issue offact (see General Business Law § 765 [1] [b]; 16 NYCRR 753-4.6 [a]), theSupreme Court should have granted that branch of the Town's motion which was for summaryjudgment dismissing the second cause of action insofar as asserted against it.
The Town's remaining contentions are either improperly raised for the first time on appeal orwithout merit. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.