New York State Court of Claims

New York State Court of Claims

VERIZON v. THE STATE OF NEW YORK, #2006-031-059, Claim No. 110832, Motion Nos. M-71518, M-71672


Synopsis


Questions of fact as to how Claimant’s cable was damaged, whether it was buried and if so whether it was buried within the State right of way preclude summary judgment to both Claimant and Defendant

Case Information

UID:
2006-031-059
Claimant(s):
VERIZON NEW YORK, INC.
Claimant short name:
VERIZON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110832
Motion number(s):
M-71518, M-71672
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
SOLOMON AND SOLOMON, P.C.BY: KRISTEN L. BRODEN, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 1, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 15, were read on motions by Claimant and Defendant for summary judgment:
  1. Claimant’s Notice of Motion (M-71518), filed March 28, 2006;
2) Affirmation of Kristen L. Broden, Esq., dated March 13, 2006, with attached exhibits;
3) Affidavit of Steven Calvani, sworn to March 20, 2006, with attached exhibits;
4) Affidavit of John P. Thompson, sworn to March 15, 2006, with attached exhibits;
5) Defendant’s Notice of Motion (M-71672), filed May 5, 2006;
6) Affirmation of James L. Gelormini, Esq., dated May 4, 2006;
7) Affidavit of James A. Dragon, sworn to April 27, 2006;
8) Affidavit of David N. Lange, sworn to May 3, 2006, with attached exhibit;
9) Affidavit of David J. Colonna, sworn to April 12, 2006;
10) Affirmation of Harold L. Solomon, Esq., dated June 5, 2006;
11) Affidavit of Leon W. Hacker Jr., sworn to May 23, 2006, with attached exhibit;
12) Affidavit of Michael J. Collins, sworn to June 2, 2006;
13) Reply Affirmation of James L. Gelormini, Esq., dated June 15, 2006;
14) Supplemental Affidavit of David N. Lange, sworn to June 14, 2006;
15) Filed Documents: Claim and Answer. On April 7, 2004, while attempting to clear a blocked drainage pipe at the bottom of a flooded ditch on the side of Route 98 in the town of Carlton, Orleans County, agents of Defendant damaged a cable belonging to Claimant Verizon New York, Inc. In its claim filed on May 4, 2005, Claimant seeks to recover the sum of $4,171.57 which it alleges is the cost to repair the damaged cable. Both parties have filed motions requesting summary judgment.

In support of its motion, Claimant asserts that there are no questions of fact relating to this matter. Claimant was neither involved in nor notified regarding the work in the ditch which led to the cable being damaged. Further, Claimant asserts that Defendant was obligated by Industrial Code § 53 (which provides for notice to owners of underground facilities prior to excavating) to notify Claimant of its operations and give Claimant a chance to mark the location of its underground cable. Claimant argues that, as a direct result of Defendant’s failure in this regard, its cable was damaged.

Defendant opposes Claimant’s application and asserts that summary judgment should be granted in its favor. According to Defendant, Industrial Code § 53 has no significance in this matter because the operation did not involve an excavation and the cable was not buried (Industrial Code § 53 cited by Claimant relates to the protection of buried facilities). Defendant does admit that, at some point, it attempted to move what it thought was a rock that was blocking the intake pipe. Defendant argues, however, that it was not excavating, and that the bucket of the backhoe was placed in the water only to a depth of about 12 inches when it became entangled in the cable. Defendant maintains that the cable was not buried, but rather was floating just below the surface of the water, and that Claimant was never authorized to place its cable within the State’s right of way.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

I find that questions of fact exist regarding where the cable was located at the time of the incident, whether Claimant had authority to place the cable in that location, and how the cable was, in fact broken. Although both parties have pointed out inconsistencies in each other’s version of events, these inconsistencies serve to underscore the fact that neither side has demonstrated its entitlement to summary judgment as a matter of law.

Based upon the foregoing it is:

ORDERED, that both motions are hereby denied.

September 1, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims