HERNANDEZ ORTIZ v. Gold/Pearl Parking Corp., et al., Defendants. (2019)

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered September 27, 2017, which, in this action for property damage sustained by plaintiffs tenants during Hurricane Sandy, insofar as appealed from, granted the motion of defendants 2 Gold, 201 Pearl, LLC and TF Cornerstone, Inc. (collectively defendants) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion court exercised its discretion in a provident manner in excusing defendants' two-day delay in filing its summary judgment motion as they showed good cause for the delay based, inter alia, on the difficulties in obtaining an executed copy of their expert's affidavit, and plaintiffs were not prejudiced by the minor delay (see generally Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ).  Nor did the court improvidently exercise its discretion in excusing defendants for filing a motion that violated the page limitations set forth in the court's individual rules.

Defendants established entitlement to judgment as a matter of law.  They submitted evidence showing that plaintiffs' damages, if any, were caused by an act of God. Further, that a storm of the magnitude of Superstorm Sandy would strike lower Manhattan, and that compliance with the Department of Buildings' mandated provisions for flood protection would be inadequate, were not foreseeable.

In opposition, plaintiffs failed to raise a triable issue of fact.  Plaintiffs assert that they presented sufficient evidence to raise triable issues including whether the buildings were adequately flood proofed and prepared for the storm;  whether there was a deviation from the design drawings during construction that caused water to accumulate against the floodgate;  whether it was unreasonable for defendants not to have an emergency plan;  whether defendants should have trained their superintendent in flood preparation and not have permitted him to leave the buildings the weekend before the storm;  and whether it was unreasonable for defendants not to call the emergency services offered by their insurer.  Plaintiffs, however, failed to provide evidence sufficient to support these theories since their experts' opinions were conclusory and unsupported by objective data or citations to the Building Code or industry standards (see Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8–9, 798 N.Y.S.2d 715, 831 N.E.2d 960 [2005];  Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203 [2000];  Etheridge v. Marion A. Daniels & Sons, Inc., 96 A.D.3d 436, 437, 945 N.Y.S.2d 551 [1st Dept. 2012] ).  Moreover, the opinion of one of plaintiffs' experts was based on observations long after the storm and subsequent to the installation of new floodgates.

Contrary to plaintiffs' contention, the court did not improperly determine the credibility of the parties' experts and rely too heavily on defendants' expert.  Rather, the court evaluated whether plaintiffs' experts' affidavits were sufficient to raise a triable issue of fact, and found them wanting.