PUCHADES v. LLC (2018)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered January 12, 2017, which, insofar as appealed from as limited by the briefs, denied defendant and fourth-party defendant Triumph Construction Corp.'s (Triumph) motion for summary judgment dismissing the complaint, all cross claims and the fourth-party action against it, unanimously modified, on the law, to grant Triumph's motion to the extent of dismissing the complaint and all cross claims (except the fourth-party action), as against it, and, upon a search of the record, to grant summary judgment to defendant/fourth-party plaintiff Consolidated Edison Company of New York (Con Ed) dismissing the complaint and all cross claims against it, and otherwise affirmed, without costs.

Triumph met its burden of showing entitlement to summary judgment by showing that, by applying an expanding foam to fill the void between conduits which it installed and preexisting sleeves transiting the wall of the subject building, it exercised care to prevent the precise hazard of which plaintiff complains, namely, infiltration of water into the building resulting in flooding and slippery conditions.  In opposition, plaintiff, via his expert, offered only conclusory speculation that the sealing foam must have failed.  This is not enough to show negligence (see Villa–Capellan v. Mendoza, 135 A.D.3d 555, 556, 25 N.Y.S.3d 72 [1st Dept. 2016];  Murchison v. Incognoli, 5 A.D.3d 271, 271, 773 N.Y.S.2d 299 [1st Dept. 2004] ).

The record shows that, as Con Ed's contractor, Triumph performed the excavation work which plaintiff contends led to his injury;  no party claims otherwise.  Thus, if Triumph is not liable for plaintiff's injury, then Con Ed cannot be liable either (see Burke v. Hilton Resorts Corp., 85 A.D.3d 419, 420, 924 N.Y.S.2d 358 [1st Dept. 2011];  Whitehead v. Riethoffer Shows, 304 A.D.2d 754, 755, 759 N.Y.S.2d 125 [2d Dept. 2003] ).  Accordingly, upon our search of the record, we grant summary judgment to Con Ed to the extent indicated.  We note, however, that our modification leaves in place Con Ed's fourth-party action against Triumph for contractual indemnification and its pending motion for summary judgment.