Long Is. Light. Co. v Town of N. Hempstead

Long Is. Light. Co. v Town of N. Hempstead 2012 NY Slip Op 08700 Decided on December 19, 2012 Appellate Division, Second 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 December 19, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SYLVIA HINDS-RADIX, JJ.
2011-07718
(Index No. 11042/07)

[*1]Long Island Lighting Company, doing business as LIPA, respondent,

v

Town of North Hempstead, appellant, Eastern Locating Services, Inc., defendant.




Richard S. Finkel, Town Attorney, Manhasset, N.Y. (Lorienton
N.A. Palmer of counsel), for appellant.
Cullen and Dykman LLP, Brooklyn, N.Y. (Kevin C. McCaffrey
of counsel), for respondent.
Mound Cotton Wollan & Greengrass, New York, N.Y. (Paul
S. Danner, John F. Parker, and Renee
M. Plessner of counsel), for defendant
Eastern Locating Services, Inc.


DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the defendant Town of North Hempstead appeals from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered May 24, 2011, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Town of North Hempstead which was for summary judgment dismissing the second cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant Town of North Hempstead failed to establish its prima facie entitlement to judgment as a matter of law dismissing, insofar as asserted against it, the first and third causes of action, which were to recover damages for negligence and breach of contract, respectively (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d 728, 729-730; City of Albany v Central Locating Serv., 228 AD2d 920, 922). Consequently, it was unnecessary to consider the papers submitted by the plaintiff in opposition to the motion insofar as they related to those causes of action (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d at 730). Accordingly, the Supreme Court properly denied those branches of the Town's motion which were for summary judgment dismissing the first and third causes of action insofar as asserted against it.

The Town, however, met its prima facie burden with respect to that branch of its motion which was for summary judgment dismissing, insofar as asserted against it, the second cause of action, which sought damages for an alleged violation of General Business Law article 36 and 16 [*2]NYCRR part 753 (see City of Albany v Central Locating Serv., 228 AD2d at 922). Since, in opposition, the plaintiff failed to raise a triable issue of fact (see General Business Law § 765[1][b]; 16 NYCRR 753-4.6[a]), the Supreme Court should have granted that branch of the Town's motion which was for summary judgment dismissing the second cause of action insofar as asserted against it.

The Town's remaining contentions are either improperly raised for the first time on appeal or without merit.
SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court