DENNEHY v. LaRUFFA DURCAN

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Supreme Court, Appellate Division, Second Department, New York.

Patrick J. DENNEHY, et al., respondents, v. LaRUFFA & DURCAN, appellant, et al., defendants.

Decided: January 30, 2007

GABRIEL M. KRAUSMAN, J.P., ANITA R. FLORIO, ROBERT J. LUNN, and JOSEPH COVELLO, JJ. Greshin, Ziegler & Amicizia, LLP, Smithtown, N.Y. (Joel L. Ziegler of counsel), for appellant. Carl Maltese, Smithtown, N.Y. (Alex Maltese of counsel), for respondents.

In an action, inter alia, to recover damages for engineering malpractice, etc., the defendant LaRuffa & Durcan appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 19, 2006, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action to recover damages based upon the appellant's alleged failure to detect termite infestation at a prepurchase inspection of a house which they subsequently purchased, in reliance on the appellant's inspection report.   The appellant thereafter moved for summary judgment dismissing the complaint insofar as asserted against it.   In order to establish a prima facie showing of entitlement to judgment as a matter of law, it was incumbent upon the appellant to establish, according to its expert's opinion, that the initial inspections of accessible and observable areas would not have alerted an engineer to the infestation of the house by termites (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  470 Owners Corp. v. Richard L. Heimer, P.E., P.C., 258 A.D.2d 558, 685 N.Y.S.2d 747).   The appellant failed to satisfy this burden.   Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it.

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