        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

20
CA 16-00334
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


SWORMVILLE FIRE COMPANY, INC.,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

K2M ARCHITECTS P.C., DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


HARTER, SECREST & EMERY LLP, ROCHESTER (MICHAEL A. DAMIA OF COUNSEL),
FOR DEFENDANT-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered April 21, 2015. The order, insofar as appealed
from, granted in part plaintiff’s motion for partial summary judgment.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and plaintiff’s motion
is denied in its entirety.

     Memorandum: Plaintiff commenced this action alleging, among
other things, that K2M Architects, P.C. (defendant) breached its
contract to provide professional architectural services to plaintiff
by improperly designing various features of plaintiff’s new fire
station. On appeal, defendant contends that Supreme Court erred in
granting that part of plaintiff’s motion seeking partial summary
judgment against defendant for breach of contract as a result of its
failure to design a fire wall for the fire station that complied with
the requirements of the 2002 New York State Building Code (Code). We
agree with defendant that the court should have denied plaintiff’s
motion in its entirety, based upon plaintiff’s failure to meet its
initial burden of establishing its entitlement to judgment as a matter
of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Although plaintiff established that its expert was qualified to render
the opinions set forth in his affidavit (see Matott v Ward, 48 NY2d
455, 459; Blandin v Marathon Equip. Co., 9 AD3d 574, 575), he failed
to support his conclusory assertion that a fire wall was required with
citation to applicable provisions of the Code and otherwise merely
speculated with respect to whether the designed wall was required to
comply with the provisions governing the construction of fire walls
(see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9;
Igbodudu-Edwards v Board of Mgrs. of the Parkchester N. Condominium,
                                 -2-                            20
                                                         CA 16-00334

Inc., 105 AD3d 448, 449; Fitzgerald v Sears, Roebuck & Co., 17 AD3d
522, 523). Even assuming, arguendo, that plaintiff met its initial
burden, we nonetheless conclude that defendant raised triable issues
of fact sufficient to defeat the motion by submitting the affidavit of
its expert (see generally Zuckerman, 49 NY2d at 562). The conflicting
affidavits of the parties’ experts with respect to the applicability
of the subject provisions of the Code under the facts of this case and
defendant’s compliance therewith present issues of credibility that
cannot be resolved on a motion for summary judgment (see Riley v ISS
Intl. Serv. Sys., 5 AD3d 754, 756; Slomin v Skaarland Constr. Corp.,
207 AD2d 639, 641; see generally Haas v F.F. Thompson Hosp., Inc., 86
AD3d 913, 914). In light of our determination, we see no need to
address defendant’s remaining contention.




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
