In this action to recover for property damage, defendant Tri Star Construction Corp. ("Tri Star") moves for summary judgment dismissing the complaint insofar as [*2]asserted against it.^[FN1]

Defendant SL Green Realty Corp. owns the building located at 485 Lexington Avenue. Two tenants in the building, OMD and DDBRX hired Tri Star to conduct construction/renovation work in their building units. Plaintiff Verizon New York, Inc. ("Verizon") commenced this action in or about March 2009 alleging that on April 5, 2006, its property was damaged as the result of the defendants' negligence at the construction site. Specifically, Verizon alleged that Tri Star sawed through a 6 inch conduit and damaged 2400 telephone cables and negligently operated equipment, negligently excavated the location, failed to observe cable markings, failed to stay alert, and failed to maintain proper control to ensure that Verizon's property was protected. Verizon also alleged that defendants violated 16 NYCRR Part 753-3.1(a), 3.6 and 3.8, and NY General Business Law §764.

The Building Incident Report provides, "on April 10, 2006 Jim Keenaghan of JT Magen Construction reported loss of Verizon phone service in the field office located on the 6th floor of 485 Lexington Ave. An investigation revealed that the main Verizon feeder cable on the 2nd and 3rd floors south mechanical rooms was cut and missing. The missing cable was approximately 150 feet long and 3 inches in diameter. The m[e]chanical rooms were accessible to several contractors (JT Magen, Henegan, Tri Star, ICON and McGovern) working on these floors due to the large amount of construction going on at the time due to demolition and tenant build outs."

Tri Star now moves for summary judgment dismissing the complaint insofar as asserted against it, arguing that it only began work at the subject location after April 5, 2006 and therefore, could not have caused the alleged damage to Verizon's property. In support of its motion, Tri Star first refers to the property damage report for the subject incident, which lists Icon Interiors Inc. as the company that caused the damage.

Tri Star also submits the affidavit of its project manager for the subject construction project, Lawrence Greengold ("Greengold"). According to Greengold, Tri Star was hired by DDBRX and OMD in March or April 2006 to perform the renovation work, but work did not begin until May or June 2006. He refers to Tri Star's payroll records, which he claims show that work only began in May 2006 for Job 8844, and in June 2006 for Job 8851. Greengold further avers that Tri Star never worked in the second or third floor mechanical rooms where the incident is alleged to have occurred.

In opposition, Verizon, defendant McGovern & Company, LLC ("McGovern") and defendants 485 Lexington Owner LLC, SL Green Management LLC and SL Green Realty Corp. ("SL Green") each submit affirmations arguing that Tri Star's motion must be denied because (1) Tri Star failed to provide a signed contract with DDBRX and OMD, indicating date, time and exact location accessible and not accessible to Tri Star; [*3](2) the Building Incident report indicates that the location of the subject incident was accessible to several contractors, including Tri Star; (3) while payroll records were submitted by Tri Star, no explanation was given for Job Codes 8844 or 8851; and (4) Tri Star did not submit any daily logs or schedules nor any evidence to establish whether Tri Star would or would not have had access to the rooms where the incident was alleged to have occurred.

In reply, Tri Star contends that no evidence has been presented in opposition to its motion to show that it began work at the subject construction site after April 5, 2006, the date of the incident. Greengold submits a supplement affidavit, explaining that there was no contract or daily logs for Tri Star's renovation work at OMD and DDBRX's premises because it was a small project. He also explained that Tri Star would not have been permitted in the building to commence work until it had insurance for that job and until a project number was assigned. He claims that the first proof of insurance for that job is April 11, 2006, as evidenced by the certificate of liability insurance dated April 11, 2006, and that the project log for the subject project notes a logged date of April 26, 2006. Therefore, work could not have commenced before April 26, 2006.

Greengold further clarifies the payroll records, explaining that Job Code 8851 referred to OMD and Job Code 8844 referred to DDBRX, and that those job codes are identified as such in the project logs. Finally, he explains that the project log and project construction schedule, annexed to his affidavit, confirm that Tri Star's work began on April 26, 2006.

Discussion

A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Here, Tri Star submits sufficient evidence, including Greengold's affidavits and supporting documentation, to show that it only began working at the subject premises after the date of the subject incident. In opposition, Verizon, McGovern and SL Green merely attempt to undercut Greengold's affidavit through speculative assertions. They also attempt to raise an issue of fact by submitting the Building Incident Report. However, the Building Incident Report only parenthetically provides that certain contractors, including Tri Star, were at the premises on the date of the incident. They present no other documentation, affidavits or other evidence to support their claim that Tri Star was working at the premises on the date of the accident and they fail to raise any triable issue of fact with respect to the evidence submitted by Tri Star. In order to defeat a motion for summary judgment, those opposing the motion are required to present a material issue of evidentiary fact comprised of more than just mere speculation or [*4]conjecture. See Cillo v. Resjefal Corp., 16 AD3d 339 (1st Dept. 2005). Here, Verizon, McGovern and SL Green do not submit material evidence sufficient to raise any triable issue of fact.

In accordance with the foregoing, it is

ORDERED that the motion for summary judgment by defendant Tri Star Construction Corp. is granted and the complaint insofar as asserted against it is dismissed; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly and the action is severed and shall continue as to the remaining defendants.

This constitutes the decision and order of the Court.

Dated:New York, New York

February 15, 2011

E N T E R:

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Saliann Scarpulla, J.S.C.