Trocchia v. Yonkers Construction Co.

May 4, 1998
Versions:250 A.D.2d 599
672 N.Y.S.2d 247
1998 N.Y. App. Div. LEXIS 4900

—In an action to recover damages for injury to property based on negligence and private nuisance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated April 8, 1997, as denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment is granted, and the complaint is dismissed.

The defendant established its entitlement to judgment as a matter of law by submitting evidence in admissible form, including an affidavit and testimony from the examination before trial of its vice president and project engineer, which indicated that it had neither been negligent nor had committed a private nuisance in its work as contractor on the Meeker Avenue viaduct rehabilitation project (see, Zuckerman v City of New York, 49 NY2d 557; Spearmon v Times Sq. Stores Corp., 96 AD2d 552; Copart Indus. v Consolidated Edison Co., 41 NY2d 564; Beck v State of New York, 21 AD2d 939, 940). The plaintiffs’ opposition, consisting essentially of an affirmation *600from an attorney without personal knowledge of the facts, was insufficient to raise a triable issue of fact (see, Spearmon v Times Sq. Stores Corp., supra). Miller, J. P., Joy, Friedmann and McGinity, JJ., concur.