Cablevision of Rockland v HSP Constructors, LTD

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Cablevision of Rockland v HSP Constructors, LTD 2011 NY Slip Op 33567(U) November 30, 2011 Supreme Court, Nassau County Docket Number: 18309/09 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .............. ........ .......................... ............ ....... [* 1] SHORT FORM ORDER SUPREME COURT - ST ATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRlALIIS, PART 4 CABLEVISION OF ROCKLAND ANDIRMAPO, LLC, d/b/a CABI,EVlSION, Plaintiff, -against- HSP CONSTRUCTORS, LTD., NASSAU COUNTY MOTION SEQ. NO. : 001 MOTION DATE: 9/1/11 INDEX NO. : 18309/09 Defendant. The following papers having been read on the motion (numbered 1- 4): Notice of Motion.................................................................................. ...... Affirma tio n in Opposition.............. .......... Memoran dum of Law..... .......................................................................... Reply Affirmation..............................................." .................. Motion by defendant HSP Constrctors , Ltd. (HSP) pursuant to CPLR 3212 for summar judgment dismissing the complaint is determined as follows. BACKGROUND In this action, plaintiff Cablevision seeks to recover damages arising from excavation of a driveway at 6 Green Hedges Lane, Blauvelt, New York, on September 12 2006 during which an underground cable wire, located at the base of the driveway apron, was crushed. Plaintiff alleges that defendant HSP was hired by the homeowner, who is not a par to this lawsuit, to perform certain home improvements and renovation services at the premises. Defendant HSP avers that it was not hired to do any digging or work on , in fact, perform such work. the subsurface in the area of plaintiff s utilties and did not As plaintiff points out, however , the one page contract between defendant HSP and the responsibilties of the homeowner docs not specify the scope of work and the respective parties. Contending that it never did any excavation work in the front of the premises, or in any area in or around the driveway, defendant HSP seeks summary judgment dismissing the complaint. [* 2] In this regard, moving defendant argues that , pursuant to its contract with the homeowner, it was not obligated to perform any excavation work on the driveway nor was it obligated to control/supervise the work of any other contractors hired to perform working anywhere near the such work. The movant asserts that its crew was not Since date of plaintiff s alleged loss or at any other time. driveway of the p::-emises on the other vis-a-vis it had no duty to perform excavation work, or provide supervisory service contractors on thf: job, defendant HSP maintains it canot be held liable for the alleged , Perfection Paving, Inc. which it hired to negligent excavation by independent contractor s own labor and materials. In short, excavate and replace the driveway using Perfection defendant HSP asserts that it was hired to perform exterior work to the rear of the premises and did not perform the digging and excavation activity plaintiff alleges caused the damage. Moreover, defendant HSP further asserts that, prior to beginning work at the premises, in compliance with the " Call Before You Dig Program, it contacted the One utilties in and around the premises in Call Center to request a markout of all underground , markouts of ation to begin work. According to defendant HSP order to obtain authoriz utilties were completed by a company provided water, cable television, gas and electrical by One Call Center and locating reports in the area of the excavation were produced. of any cable wire running Defendant HSP' s president attests that he had no knowledge through the driv1 way area. ANAL YSIS Excavation work is governed by statutes and regulations designed to protect underground facilties. They set forth various procedures to be followed when engaging in such work. 1he regulations provide that an excavator must contact the One Call notification system serving the vicinity prior to commencing or engaging in a non1(b). emergency excavation. 16 NYCRR 753NYCRR 753 are statutes designed to General Business Law Aricle 36 and 16 fort procedures with which all excavators must protect underground facilties by setting Vilage of Athens, See Verizon New York comply prior to and durng excavation. any procedure or AD3d 526, 527 (3 Dept 2007). These laws do not contain requirements fc,r paries who are not performing the excavation. General Business Law 763 - 765 outline the duties of excavators in preparng and conducting excavations. These sections mandate that an excavator shall not [* 3] commence/engag(: in any excavation until notice is given of the location and date the operators proposed excavation is to take place. These statutory sections apply"only to " in 16 excavators is set forth excavators. " The statutory defmition of " (utilties) and " See propert owners or NYCRR 753- 1.2(i), and does not include 73 AD3d 865 866- 78 (2 Dept 2010). Petrilo Contr., excavator" is: 16NYCRR 753- 1.2(i) provides that an " Any person who is engaged in a trade or business which includes the carrying out of excavation or demolition; provided, however that an individual employed by an excavator and having no supel"\isory authority other than the routine direction of employees , shall be deemed an excavator for over an excavation or demolition of any the purpose of this part. The act of any employee or agent excavator acting within the scope of his or her official duties or of such excavator. lessees. , Level Inc., Communications, LLC emplc1yment shall be deemed to be the act some Violation of the statute s implementing rules and regulations constitutes p. 527. at Vilage of Athens, supra, Verizon, New York, Inc. evidence ofnegligence. the Generally, a part who hires an independent contractor is not liable forthe acts of maner in which does not control the said contractor because the hiring par The general rule is subject to varous independent contractor performs its work. exceptions, not here present, including where premises are open to the public and the premises owner has a non- delegable duty to provide the public with a reasonably safe which or maner in where the general contractor supervises or controls the method or Posa Copiague Pub. School Dist. independent cor tractor performs its duties. means by which the work is AD3d 770, 772 (2 Dept 2011). Control of the method and part is an independent performed is, therefore, a critical factor in determining whether a Sumary contractor. Typically, such a determination involves a question of fact. judgment is appropriate, however Goodwin , in those instances where the evidence onDeptissue of the sl 2007) Comcast Corp. 42 AD3d 322 (l control presents no conflict. (citations and quotation marks omitted). par Here, the contractual arrangement between defendant HSP and non- the premises additional construction" to clear as is the exact scope of the " Perfection is ll. s one page contract (March 6 , 2006) with the homeowner. referenced in d, fendant HSP' [* 4] The cour notes that it was defendant HSP that contacted the One Call Center to request a The locating reports that were provided to markout of the underground utilties. , the president of defendat HSP list it as the contractor on the project and Pete Hilebrand HSP, as the conta.;t person. prima On a motion for summar judgment, the movant has the burden of judgment as a matter of law and of tendering showing of entitlement so sumar makng a New York facie Weingrad 64 NY2d 851 (1985). If the moving par sufficient evidence to show the absence of material issues of fact. University Medical Center, fails in meeting this burden, the motion must be denied. If, however, the burden is satisfied, then the the opposing papers, burden shifts to the opposing part, regardless of the sufficiency of City of New York, 49 Zuckerman to establish the existence of material issues of fact. NY2d 557 (1980l While the mere fact that discovery has not been conducted does not necessarily 58 NY2d (Chemical Bank PIC Motors Corp. preclude the grant of sumar 1023, 1026 (1983)), where facts essential to justify opposition to a motion for , sumary judgment are ex,lusively within the knowledge and control of movant par has not had a judgment may bf: denied. This is particularly so where the opposing Global Mins. & reasonable opportunity for disclosure prior to the Holme 35 AD3d 93, 103 pst Dept 2006). of a factual issue as to whether and Under the: circumstances extant, the existence , or was involved in, the excavation the extent to whi ch defendant HSP had control of , summar , and given the fact that no discovery has been conducted work at the premises dismissal is prec luded. summar judgment dismissing th Accordingly, motion by defendant HSP for denied. summar judgment makng of the motion. Metals Corp. complaint is This Dated: stitues the Orer of the Cour. 30 '/otl ENTER JAN NASSAU 2 4 2012 cou COUNTY CLER.K' S OFFICE

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