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Nancy KRAMER, respondent, v. OIL SERVICES, INC., appellant. (Action No. 1)
State Farm Fire & Casualty Company, as subrogee of Nancy Kramer, respondent, v. Oil Services, Inc., appellant. (Action No. 2) (and related actions).
In two related actions, inter alia, to recover damages for injury to property, the defendant Oil Services, Inc., appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), dated March 8, 2007, which granted those branches of the respective motions of the plaintiffs in both actions which were for summary judgment on the issue of liability pursuant to Navigation Law § 181.
ORDERED that the order is reversed, on the law, with one bill of costs, and those branches of the respective motions of the plaintiffs in both actions which were for summary judgment on the issue of liability pursuant to Navigation Law § 181 are denied.
The plaintiffs Nancy Kramer and State Farm Fire & Casualty Company, as subrogee of Nancy Kramer (hereinafter the plaintiffs), commenced separate actions against Oil Services, Inc. (hereinafter Oil Services) to recover damages resulting from a discharge of oil which occurred at the residence of the plaintiff Nancy Kramer. The plaintiffs each moved for summary judgment on the issue of liability and relied primarily on an affidavit by Kramer wherein she stated that an Oil Services' technician told her that his hand pumping of the oil line had caused a rupture in the pipe, which resulted in the spill. This hearsay evidence was insufficient to satisfy the plaintiffs' burden of establishing their prima facie entitlement to judgment as a matter of law on the issue of liability (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Stock v. Otis El. Co., 52 A.D.3d 816, 861 N.Y.S.2d 722; Wen Ying Ji v. Rockrose Dev. Corp., 34 A.D.3d 253, 254, 823 N.Y.S.2d 400; AIU Ins. Co. v. American Motorists Ins. Co., 8 A.D.3d 83, 85, 778 N.Y.S.2d 479; Rodriguez v. Sixth President, 4 A.D.3d 406, 407, 771 N.Y.S.2d 368). Also insufficient was the plaintiffs' reliance on handwritten notes of the Oil Services' technician, as the plaintiffs failed to establish their admissibility under the business records exception (see CPLR 4518[a]; Hochhauser v. Electric Ins. Co., 46 A.D.3d 174, 179, 844 N.Y.S.2d 374).
Moreover, although the plaintiffs claimed that Oil Services was contractually obligated to maintain the heating equipment that had leaked, they provided no proof of such. Liability under Navigation Law article 12 is predicated on a potentially responsible party's capacity to take action to prevent an oil spill or to clean up the resulting contamination (see State of New York v. Speonk Fuel, Inc., 3 N.Y.3d 720, 724, 786 N.Y.S.2d 375, 819 N.E.2d 991; State of New York v. Green, 96 N.Y.2d 403, 405, 729 N.Y.S.2d 420, 754 N.E.2d 179). Here, summary judgment was erroneously awarded to the plaintiffs, as they presented no evidence that Oil Services was a “discharger” pursuant to Navigation Law § 181 (see Navigation Law §§ 181[1], 172[8]; cf. State of New York v. Joseph, 29 A.D.3d 1233, 1235-1236, 816 N.Y.S.2d 214; State of New York v. Avery-Hall Corp., 279 A.D.2d 199, 201-202, 719 N.Y.S.2d 735; Domermuth Petroleum Equip. & Maintenance Corp. v. Herzog & Hopkins, 111 A.D.2d 957, 490 N.Y.S.2d 54).
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Decided: November 25, 2008
Court: Supreme Court, Appellate Division, Second Department, New York.
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