                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    517969
________________________________

STATE FARM FIRE & CASUALTY
   COMPANY, as Subrogee of
   KRISTINA KAPUR DDS et al.,
   Doing Business as FALL
   CREEK FAMILY DENTISTRY,                   MEMORANDUM AND ORDER
                    Appellant,
      v

CITY OF ITHACA,
                    Respondent.
________________________________


Calendar Date:    September 9, 2014

Before:    Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

                              __________


     Austin A. Duvernoy, Ithaca, for appellant.

      Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel),
for respondent.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered September 4, 2013 in Tompkins County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.

      Plaintiff commenced this subrogation action to recover for
property damage caused when a water meter ruptured in the
basement of its subrogors' dental office allegedly due to
defendant's negligent operation of its water system. After
joinder of issue and discovery, the parties each moved for
summary judgment. Supreme Court granted defendant's motion,
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finding that it did not have a duty to inspect the water meter.
Plaintiff appeals, arguing that it does not rely on any duty to
inspect and that, rather, there is a question of fact as to
whether an affirmative act of negligence by defendant caused the
water meter to rupture. We agree with plaintiff.

      In support of its motion, defendant submitted an affidavit
from a water department engineer, who opined that the rupture was
caused by sudden pressure, described as a water hammer,
originating from inside the subrogors' premises. In opposition,
plaintiff's expert opined that the fracture was caused by a water
hammer originating outside the premises when a valve within
defendant's water system was opened too quickly. Plaintiff's
expert based his opinion, in part, on the existence of a backflow
preventer inside the premises and downstream of the meter, which
he claimed would have prevented pressure from originating inside
the premises and causing the fracture. Plaintiff's subrogors
both claimed that their water service had been interrupted prior
to the rupture, and one of them attributed the interruption to
work being performed on the streets in the neighborhood.1

      Defendant's argument that there is no evidence that the
backflow preventer was working properly at the time of the
accident goes to the weight of plaintiff's expert evidence and
does not render it insufficient to raise an issue of fact (see
Hyatt v Price Chopper Operating Co., Inc., 90 AD3d 1218, 1220
[2011]; Madden v Town of Greene, 64 AD3d 1117, 1121 [2009]).
Moreover, although defendant submitted evidence regarding the
lack of any work performed by its water department or any similar
complaints in the area during the time period in question, it did
not address whether service to the subrogors' premises had been
interrupted as a result of road work being performed in the area.
Given the competing evidence as to the cause of the ruptured


    1
        We do not view these claims as directly contradicting the
prior testimony of one of the subrogors so as to be considered as
an attempt to create a feigned issue of fact (see Sutin v Pawlus,
105 AD3d 1293, 1295 [2013]; Sullivan v Schindler El. Corp., 94
AD3d 1207, 1208-1209 [2012]; O'Leary v Saugerties Cent. School
Dist., 277 AD2d 662, 663 [2000]).
                                 -3-                  517969

water meter and viewing the evidence in a light most favorable to
plaintiff, issues of fact exist warranting denial of defendant's
motion for summary judgment (see McGrath v George Weston
Bakeries, Inc., 117 AD3d 1303, 1305 [2014]; Longtemps v Oliva,
110 AD3d 1316, 1318 [2013]; Sutherland v Thering Sales & Serv.,
Inc., 38 AD3d 967, 968 [2007]).2

         Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, with costs
to plaintiff, by reversing so much thereof as granted defendant's
motion for summary judgment; motion denied; and, as so modified,
affirmed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     2
        In light of these issues, plaintiff's contention that the
doctrine of res ipsa loquitor entitles it to summary judgment in
its favor is misplaced (see Morejon v Rais Constr. Co., 7 NY3d
203, 212 [2006]).
