Durand v. Salvation Army

186 A.D.3d 1325

128 N.Y.S.3d 898 (Mem)

George A. DURAND, Appellant,

v.SALVATION ARMY, Respondent;

Delgado Home Improvements, Inc., et al., Third-Party Defendants;

Friends of Freeport NY, Inc., Fourth-Party Defendant.

2017–09286

Index No. 2333/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 21, 2020

September 16, 2020

George A. Durand, Freeport, NY, appellant pro se.

Alfred F. Lucia, Jr., Garden City, NY, for respondent.

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Catherine F. Cavanagh of counsel), for third-party defendant Taiyo Corporation.

Melissa H. Luckman, Deer Park, NY, for fourth-party defendant.

ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for injury to property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered August 3, 2017. The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises out of certain work performed on the plaintiff's home to repair damage caused by Hurricane Sandy. In March 2015, the plaintiff commenced this action against the defendant, inter alia, to recover damages for injury to his property, alleging, among other things, that he did not agree to demolition work performed throughout the first floor of his home, but rather only agreed to the replacement of cracked kitchen tiles, and that various items of his personal property were thrown away during the work. The defendant moved for summary judgment dismissing the complaint, arguing, inter alia, that the "credible evidence" showed that the plaintiff agreed to the scope of the demolition work in his home and that none of the plaintiff's personal property was thrown away during the work. The defendant also asserted that the plaintiff's claims were barred by his execution of a general release and waiver of liability. In an order entered August 3, 2017, the Supreme Court, among other things, granted the defendant's motion. The plaintiff appeals.

Contrary to the defendant's contention, it failed to eliminate triable issues of fact as to whether the plaintiff was aware of and agreed to the scope of the demolition work in his home, and whether the plaintiff's personal property was thrown away without his consent, since the plaintiff's deposition testimony was in conflict with the deposition testimony relied upon by the defendant (see Baptiste v. Ditmas Park, LLC , 171 A.D.3d 1001, 1003, 98 N.Y.S.3d 280 ; Castlepoint Ins. Co. v. Command Sec. Corp. , 144 A.D.3d 731, 733, 42 N.Y.S.3d 30 ). " ‘It is not the court's function on a motion for summary judgment to assess credibility’ " ( Silva v. FC Beekman Assoc., LLC , 92 A.D.3d 754, 756, 938 N.Y.S.2d 583, quoting Ferrante v. American Lung Assn. , 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308 ; see Zalewski v. MH Residential 1, LLC , 163 A.D.3d 900, 82 N.Y.S.3d 40 ). Here, the plaintiff's testimony was not incredible as a matter of law or unworthy of belief, but rather, raised issues of credibility to be resolved by a factfinder (see Merino v. Tessel , 166 A.D.3d 760, 761, 87 N.Y.S.3d 554 ). The defendant also failed to eliminate triable issues of fact as to whether it directed the demolition work at the plaintiff's home and as to the degree of supervision the defendant exercised over that work.

Nevertheless, the defendant established its prima facie...