Ain v C.A.C. Indus., Inc.

Ain v C.A.C. Indus., Inc. 2010 NY Slip Op 08517 [78 AD3d 870] November 16, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Martin J. Ain, Appellant,
v
C.A.C. Industries, Inc., et al., Respondents.

—[*1] Frank M. Graziadei, P.C., New York, N.Y. (Edward S. Rudofsky of counsel), for appellant. White, Fleischner & Fino, LLP, New York, N.Y. (Jared T. Greisman and Sara N. Robbin of counsel), for respondents.

In an action to recover damages for injury to property, the plaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated April 30, 2009, which denied his motion to reject a referee's report (Rosen, R.), dated December 8, 2008, made after a hearing, recommending that the complaint be dismissed in its entirety, and granted the defendants' cross motion to confirm the report.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the City of New York and C.A.C. Industries, Inc. (hereinafter CAC), a corporation hired by the City to repair and perform work on the streets adjoining the plaintiff's property, alleging that the work performed by CAC caused damage to the plaintiff's home. The matter was referred to a referee to hear and report on all issues. The referee recommended that the complaint be dismissed in its entirety.

The Supreme Court properly denied the plaintiff's motion to reject the referee's report and properly granted the defendants' cross motion to confirm the report. The record supports the referee's finding that the plaintiff failed to establish that it was more likely that the defendants' activities, rather than some other cause, led to the damage to the plaintiff's property (see Gayle v City of New York, 92 NY2d 936, 937 [1998]; Ferentini v Ferentini, 72 AD3d 882, 883 [2010]).

The plaintiff's remaining contentions either are unpreserved for appellate review or need not be reached in light of our determination. Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.