TrizecHahn, Inc. v Timbil Chiller Maintenance Corp.

TrizecHahn, Inc. v Timbil Chiller Maintenance Corp. 2012 NY Slip Op 00712 Decided on February 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2012
Gonzalez, P.J., Saxe, Moskowitz, Acosta, Freedman, JJ. 6710-
6710A 111425/04

[*1]TrizecHahn, Inc., Plaintiff-Respondent,

v

Timbil Chiller Maintenance Corp., Defendant-Appellant, Tuthill Corp., etc., et al., Defendants.




Maroney O'Connor LLP, New York (Ross T. Herman of
counsel), for appellant.
Clausen Miller P.C., New York (Kimbley A. Kearney of
counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 29, 2010, which denied defendant Timbil Chiller Maintenance Corp.'s (Timbil) motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs. Order, same court and Justice, entered May 26, 2010, which, insofar as appealed from as limited by the briefs, denied Timbil's motion to limit the amount of damages to $22,200, unanimously affirmed, with costs.

Timbil failed to establish its entitlement to judgment as a matter of law in this action arising out of an explosion of a machine that provided air conditioning for plaintiff's building. Timbil was the service maintenance company charged with performing inspections of the machine pursuant to a contract with plaintiff. The record demonstrates that Timbil submitted the affidavit of its vice president stating that the overspeed trip test was performed during the winter maintenance inspection, as it was every year. However, defendant also submitted the transcript of that individual's deposition in which he admitted that he lacked personal knowledge of when Timbil last performed an overspeed trip test on plaintiff's machine before the August 11, 2001 explosion at issue (see CPLR 3212[b]). Defendant also attached the transcript of the deposition of plaintiff's assistant chief engineer, who said that the last annual inspection before August 2001 was performed in March 2000. In light of the foregoing, Timbil failed to show the absence of triable issues of fact and thus, denial of the motion was warranted "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Moreover, although Timbil submitted, in reply, affidavits from two servicemen who said they performed an overspeed trip test on November 8, 2000, a movant may not "remedy a fundamental deficiency in the moving papers by submitting evidentiary
material with the reply" (Ford v Weishaus, 86 AD3d 421, 422 [2011] [internal quotation marks and citation omitted]).

The court properly declined to limit Timbil's liability to $22,200, which was the yearly [*2]contract price of the parties' agreement (see General Obligations Law § 5-323; Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57, 69-70 [1966]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2012

CLERK