Hixon v Congregation Beit Yaakov, a N.Y. Non-Profit Religious Corp.

Hixon v Congregation Beit Yaakov 2008 NY Slip Op 09894 [57 AD3d 328] December 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Verina Hixon, Respondent,
v
Congregation Beit Yaakov, a New York Non-Profit Religious Corporation, et al., Defendants, and Urban Foundation Engineering, LLC, Appellant. (And a Third-Party Action.)

—[*1] McDonough Marcus Cohn Tretter Heller & Kanca, L.L.P., New Rochelle (Frank T. Cara of counsel), for appellant.

Paul Coppe, New York, for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 27, 2007, which, insofar as appealed from as limited by the briefs in an action for property damage to plaintiff's cooperative apartment allegedly caused by defendants' construction work on an adjacent building, denied the motion of defendant Urban Foundation Engineering, LLC (Urban) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Urban, the subcontractor charged with installing the foundation system for the new structure adjacent to plaintiff's apartment building, failed to meet its initial burden of establishing, prima facie, that the performance of its inherently dangerous excavation work (see Klein v Beta I LLC, 10 AD3d 509, 510 [2004]), did not contribute to the damage to plaintiff's apartment. Although, pursuant to a preclusion order, plaintiff is prevented from offering her own testimony about damages, the motion court appropriately concluded that the preclusion order would not prohibit plaintiff from offering competent evidence at trial, i.e., insurance company reports, to establish damages (see e.g. Ramos v Shendell Realty Group, Inc., 8 AD3d 41 [2004]). Furthermore, contrary to Urban's contention that the series of floods that damaged plaintiff's apartment after its construction work constituted superseding acts that relieved it from liability, the record shows that the floods occurred both before and after the subject construction work. [*2]

We have considered Urban's remaining arguments and find them unavailing. Concur—Lippman, P.J., Tom, Buckley, Moskowitz and Renwick, JJ.