XLI CORPORATION v. BATTLE CONSTRUCTION CO INC (2008)

Plaintiff commenced this action to recover damages for water damage to a manufacturing facility that, according to plaintiff, was negligently constructed by defendant.   The parties entered into a contract for the construction of the facility and, according to plaintiff, defendant failed to construct the building in a manner that effectively repelled water.   We agree with defendant that Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability with respect to the first and second causes of action.   Even assuming, arguendo, that plaintiff met its initial burden on the motion, we conclude that defendant raised an issue of fact whether the water damage was caused by the allegedly defective design of the windows, which the parties agree was the responsibility of the architect rather than defendant.   Indeed, the record establishes that water often infiltrated the building during or after wind-driven rain through the window area, and we thus conclude that there is an issue of fact whether the allegedly defective window design caused the persistent leaks (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the motion is denied in its entirety.

MEMORANDUM: