Verizon N.Y., Inc. v Keyspan Gas E. Corp.

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Verizon N.Y., Inc. v Keyspan Gas E. Corp. 2012 NY Slip Op 31740(U) June 28, 2012 Sup Ct, NY County Docket Number: 118833/06 Judge: Saliann Scarpulla 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] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PART I - I '1 Justice _. Index Number : 118833/2006 VERIZON NEW YORK INDEX NO. VS. MOTION DATE KEYSPAN GAS EAST SEQUENCE NUMBER : 012 - I MOTION SEQ. NO. PRECLUDE The followlng papers, numbered 1 to Notice of MotlonlOrder to Show Cause , were read on thle motlon toHor -Affldavlts - Exhiblts IWN. INO($). I WN. Anawerlng Affidavits - Exhlblta Replying AffldaviQ Upon the foregoing papers, it is ordered that thls motion I s Dated: ijal[Ia-- 1. CHECK ONE: ..................................................................... 0 CASE DISPOSED ........................... MOTIONIS: nGRANTED ~JDENIED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: r-1DO NOT POST OTHER GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, Index No.: 118833/06 Submission date: 11/16/11 DECISION AND ORDER -againstKEYSPAN GAS EAST COWORATION, KEYSPAN ENERGY CORPORATION, HAWKEYE LLC and OCEAN ELECTRIC CORPORATION, FILED NEW YORK COUNTY CLERKS OFFICE Third-party Plaintiff, Index No.: 590258/07 -againstUTILITIES PLUS CORPORATION, For Plaintiff: Pillinger Miller Tarallo, LLP 570 Taxter Road, Suite 275 Elmsford, NY 10523 For Defendant Hawkeye, LLC: Lewis, Brisbois, Bisgaard & Smith LLP 77 Water Street New York, NY 10005 For Defendant Ocean Electric Corporation: Baxter, Smith, Tassan & Shapiro, PC 99 North Broadway Hicksville, NY 11801 HON. SALIANN SCARPULLA, J.: Defendantkhird-party plaintiff Hawkeye LLC ( Hawkeye ) moves to preclude plaintiff Verizon New York, Inc. ( Verizon ) in limine from introducing certain evidence at trial, consisting of a Cost Allocation Manual ( CAM ), invoices and the testimony of its billing specialist, arguing that such claimed proof of damages is inadmissible under [* 3] New York law. Hawkeye also moves pursuant to CPLR 32 12, for partial summary judgment on the issue of damages. Defendant Ocean Electric Corporation ( Ocean Electric ) cross-moves to extend its time to move to file the within summary judgment motion, and, pursuant to CPLR 32 12, for summary judgment on all claims and cross claims against it. By letter dated June 27,2012, counsel for Hawkeye informed the Court that Verizon and Hawkeye have entered into a settlement, and the action as to Hawkeye will be discontinued. Accordingly, Hawkeye s motion to preclude and for summary judgment is denied as moot. Verizon commenced this in December 2006 against defendants Keyspan Gas East Corporation ( Keyspan Gas ), Keyspan Energy Corporation ( Keyspan Energy ), Hawkeye and Ocean Electric. Verizon also commenced a related action against Utilities Plus this Court entitled Verizon New York,Inc. v. Utilities Plus Corporation, Index Number 11 152 1/2007, and obtained a default judgment against Utilities Plus on September 16, 2008. Verizon seeks to recover $43 8,833.12 in damages allegedly sustained to its underground telecommunication facilities on December 8, 2004, as a result of defendants underground drilling work on Hempstead Turnpike, approximately 800 feet east of Oak Street, Hempstead, New York. At the time of the accident, Hawkeye had contracted with Keyspan Communications, not a party to this action, for the installation of fiber optic cable and 2 [* 4] conduit in connection with a telecommunications upgrade at Hofstra University in Hempstead, New York. Hawkeye retained third-party defendant utilities Plus Corporation ( Utilities Plus ) to provide the directional drill and ancillary equipment and to operate the directional drill for underground boring and conduit installation work. Directional drilling was required for the purpose of running Keyspan Communications conduit and cable from an area north of the westbound lanes of Hempstead Turnpike adjacent to Hofstra University to a hand-dug exit pit at the center median, approximately eight to ten feet north of the eastbound lanes of Hempstead Turnpike. Verizon alleges that one of its conduit banks was severed during the directional drilling in the center median approximately 15 feet north of the eastbound lanes of Hempstead Turnpike due to the negligence of Hawkeye, Utilities Plus andor Ocean Electric in locating marked-out utilities. Hawkeye contends that any damage sustained by Verizon was a result of Verizon s negligence in failing to properly mark-out andor identify its underground facilities. After the incident, Verizon s in-house employees repaired the cables, using their own materials and tools. Verizon sent Hawkeye an invoice for the damage totaling $438,833.12, which Verizon alleges was the total cost of repair. Utilities Plus, the entity performing the drilling which allegedly severed Verizon s cable, is now a dissolved corporation. Ocean Electric was formerly affiliated with Utilities Plus, as they were both owned by the same individual. Ocean Electric cross- 3 [* 5] moves for summary judgment on the ground that it was not involved in the planning, operation or execution of any of the work at issue in this action. Keyspan Gas and Keyspan Energy moved for summary judgment dismissing the complaint as against them. Their motions were granted without opposition, in a decision and order placed on the record on April 20, 20 1 1. Hawkeye commenced a third-party action against Utilities Plus on March 16, 2007, by filing its third-party summons and complaint. On March 14, 2008, Hawkeye was granted a default judgment against Utilities Plus for its non-appearance in the thirdparty action. By order of this Court, placed on the record April 20,201 1, I precluded Verizon froin submitting any proof of damages at trial which had not been produced as of April 22, 201 1. Ocean Electric cross-moves to extend its time to move to file the within summary judgment motion, and pursuant to CPLR 3212, for summary judgment on all claims and cross claims against it. Ocean Electric alleges that it was not involved in the planning, operation or execution of any of the work on Hernpstead Turnpike on the date of the accident. Ocean Electric, which is owned solely by Jeffrey Dilandro Dilandro and his wife Helen, alleges that is an entity involved in residential electrical contracting and not commercial directional drilling, boring or underground conduit installation. Utilities Plus, on the 4 [* 6] other hand, was an underground utilities contractor which was also partially owned by Dilandro. Ocean Electric contends that it is being sued because it is owned by Dilandro. On April 20, 20 1 1, in an on the record order at which counsel for Ocean Electric was present, I directed that June 30, 201 I was the deadline to file the note of issue, and that all summary judgment motions must be made within 60 days thereafter. Note of issue was filed on June 30,201 I . The within cross motion for summary judgment was brought on September 15, 20 11, approximately 17 days after my deadline. Counsel for Ocean Electric argues that the within motion is timely in that, although Verizon filed its note of issue on June 30, 201 1, it did not file said note with proof of service, as required by CPLR 3402 (a). Ocean Electric asserts that because Verizon did not serve its proof of service at the time of filing the note of issue, its note of issue is a nullity. Further, Ocean Electric claims that it did not learn that Verizon had filed its note of issue until July 2 1,201 1, when counsel for Hawkeye served correspondence by facsimile, notifying both Verizon and Ocean Electric that Verizon had filed its note of issue but improperly failed to serve the defendant with a copy of the note. On July 27, 20 11, counsel for Ocean Electric received a copy of Verizon s note of issue by regular mail. CPLR 3402(a) requires that any party may place a case upon the calendar by filing, within ten days after service, with proof of such service two copies of a note of issue with the clerk. (Emphasis added). 5 [* 7] Ocean Electric cites the First Department s prior rulings that ?the 60-day period cannot be construed to run from the date of the unilateral act of filing a note of issue, but rather that defendants . . . cannot be charged with knowledge of the triggering event commencing the 60 days, i.e., the filing of the note of issue, until the service by mail is completed. Szabo v.H . Two Way Radio TaxiAssn., 267 AD..2d 134, 135 (Ist Dept 1999). See also Luciuno v. Apple Maintenance & Servs., 289 A.D.2d 90 (1st Dept 200 I). In both Szabo and Luciuno the First Department, citing CPLR 2 103 (b) (2), extended the defendant s time to file a summary judgment motion by five days where the plaintiff had served its notice of filing the note of issue by mail. However, Szabo and Lnciano both predate Brill v. Ct of New York,2 N.Y.3d iy 648 (2004), wherein the Court of Appeals held that courts may not consider the inerjts of an untimely summary judgment motion for any reason other than good cause for the delay in making the motion. Brill, 2 N.Y.3d at 652. Accordingly, the First Department has recently found that Szabo and Luciano are no longer good law to the extent that they permit a five-day extension of the filing deadline for summary judgment motions pursuant to CPLR 2103(b)(2). Group IX Inc. v. Next Print.& Design Inc., 77 A.D.3d 530 (1 Dept 20 10). Ocean Electric also cites McFadden v. 530 F@h Ave. RPSII Assoc., LP, 28 A.D.3d 202 ( lStDept 2004), which held that a plaintiffs failure to serve a note of issue 6 [* 8] constituted good cause for a late summary judgment motion, where defendants did not learn of the filing of the note of issue until after the 60-day period had expired. Here, however, I explicitly informed counsel for the parties that the note of issue had to be filed by June 30,20 11 and that any motions for summary judgment had to be filed within 60 days thereafter. Counsel for all parties were advised that this case, which was commenced in 2006, had been delayed too long and needed to proceed to trial. Finally, the fact that there was outstanding discovery between Verizon and Hawkeye is not good cause for delaying Ocean Electric s motion for summary judgment which is based solely upon the relationship between itself and Utilities Plus. Therefore, Ocean Eclectic s motion for an extension of time to file its motion for summary judgment will be denied, and its motion for partial summary judgment denied as untimely. In accordance with the forgoing, it is ORDERED that the motion by defendadthird-party plaintiff Hawkeye LLC to preclude plaintiff from introducing certain evidence at trial, and for partial summary judgment as to damages is denied as moot; and it is hurther 7 [* 9] ORDERED that the cross-motion by defendant Ocean Electric Corporation to extend its time to move to bring a motion for summary judgment, is denied, and its motion for summary judgment dismissing all claims and cross-claims against it is denied as untimely. This constitutes the Decision and Order of the Court. Dated: New York, New York June 28,2012 8

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