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

1346
CA 11-00533
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


VERIZON NEW YORK INC., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ECSM UTILITY CONTRACTORS, INC.,
DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


DOBSHINSKY & PRIYA, LLC, NEW YORK CITY (NEAL S. DOBSHINSKY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SOLOMON AND SOLOMON, P.C., ALBANY (TODD M. SARDELLA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered December 16, 2010. The judgment
awarded plaintiff money damages.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying plaintiff’s motion for
summary judgment in its entirety, vacating the award of damages, and
granting that part of defendant’s cross motion for summary judgment
dismissing the negligence cause of action and dismissing that cause of
action and as modified the judgment is affirmed without costs.

     Memorandum: This dispute arises from 45 separate incidents of
property damage that occurred over the course of 16 months and across
17 different counties in New York State. Plaintiff hired defendant to
locate and mark its underground telephone cables before any
contractors began to conduct excavation work. On 45 different
occasions, various contractors damaged plaintiff’s underground
facilities, which plaintiff claims defendant did not accurately mark.

     Plaintiff thereafter commenced this action asserting causes of
action for negligence and breach of contract based on 45 claims.
Defendant’s appeal from the judgment entered against it in the amount
of over $300,000 brings up for our review its contention that Supreme
Court erred in granting those parts of plaintiff’s motion for summary
judgment on the complaint with respect to 33 of the 45 claims and in
denying defendant’s cross motion for summary judgment dismissing the
complaint or for alternative relief. As noted by the court in the
amended order deciding plaintiff’s motion and defendant’s cross
motion, plaintiff withdrew the action with respect to the 12 remaining
claims.
                                 -2-                         1346
                                                        CA 11-00533

     We conclude that the court erred in granting those parts of
plaintiff’s motion concerning the first cause of action, for
negligence, and instead should have granted that part of defendant’s
cross motion for summary judgment dismissing that cause of action. We
therefore modify the judgment accordingly. As we noted in Verizon New
York, Inc. v Barlam Constr. Co. ([appeal No. 2] ___ AD3d ___ [Dec. 23,
2011]), New York does not recognize negligent performance of a
contract as a valid cause of action (see Sommer v Federal Signal
Corp., 79 NY2d 540, 551; Gallup v Summerset Homes, LLC, 82 AD3d 1658,
1660).

     With respect to the breach of contract cause of action, plaintiff
failed to meet its initial burden of proof entitling it to summary
judgment with respect to the 33 claims (see generally Zuckerman v City
of New York, 49 NY2d 557, 562). Plaintiff may not rely on its
attorney’s affirmation because the attorney does not have personal
knowledge of the material facts (see McGowan v Villa Maria Coll., 185
AD2d 674). In addition, as in Verizon New York, Inc. v Barlam Constr.
Co. ([appeal No. 2] ___ AD3d at ___), plaintiff failed to produce the
original agreement between the parties or to provide a sufficient
explanation for its absence along with secondary evidence of contents
in accordance with the best evidence rule, which is necessary where
the terms of the agreement are disputed and the plaintiff seeks to
prove those terms (see Schozer v William Penn Life Ins. Co. of N.Y.,
84 NY2d 639, 643-644). We thus conclude that the court also erred in
granting in part plaintiff’s motion with respect to the second cause
of action, for breach of contract, and we therefore further modify the
judgment by denying plaintiff’s motion in its entirety. We have
considered the remaining contentions of the parties and conclude that
they are without merit.




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
