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

1262
CA 15-00023
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


CHANDRA M. HEWITT, AN INFANT, BY HER PARENT
AND NATURAL GUARDIAN, DONALD E. HEWITT, AND
DONALD E. HEWITT, INDIVIDUALLY,
PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

LIVERPOOL CENTRAL SCHOOL DISTRICT, LIVERPOOL
CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION,
NATARE CORPORATION, PATTERSON-STEVENS
AQUATECH, INC., PATTERSON-STEVENS, INC.,
DODGE CHAMBERLIN LUZINE WEBER ASSOCIATES
ARCHITECTS, LLP, BBL CONSTRUCTION SERVICES, LLC,
FORMERLY KNOWN AS BARRY, BETTE & LED DUKE, INC.,
BETTE & CRING, LLC, FORMERLY KNOWN AS BARRY,
BETTE & LED DUKE, INC., DEFENDANTS-RESPONDENTS,
KLEPPER, HAHN & HYATT, ENGINEERS AND LANDSCAPE
ARCHITECT, P.C., DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREENE & REID, PLLC, SYRACUSE (JAMES T. SNYDER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS LIVERPOOL CENTRAL SCHOOL DISTRICT
AND LIVERPOOL CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION.

PHELAN, PHELAN & DANEK, LLP, ALBANY (TIMOTHY P. TRIPP OF COUNSEL), FOR
DEFENDANT-RESPONDENT BBL CONSTRUCTION SERVICES, LLC, FORMERLY KNOWN AS
BARRY, BETTE & LED DUKE, INC.

NAPIERSKI, VANDENBURGH, NAPIERSKI & O’CONNOR, LLP, ALBANY (SHAWN T.
NASH OF COUNSEL), FOR DEFENDANT-RESPONDENT BETTE & CRING, LLC,
FORMERLY KNOWN AS BARRY, BETTE & LED DUKE, INC.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered April 21, 2014. The order denied the motions
of defendant Klepper, Hahn & Hyatt, Engineers and Landscape Architect,
P.C., for summary judgment dismissing plaintiff’s complaint and any
cross claims against it.
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                                                         CA 15-00023

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motions of
defendant-appellant are granted, and the complaint and the cross
claims of defendants Liverpool Central School District, Liverpool
Central School District Board of Education, Natare Corporation, and
Bette & Cring, LLC, formerly known as Barry, Bette & Led Duke, Inc.,
against it are dismissed.

     Memorandum: Plaintiff Chandra M. Hewitt, by her father, and
plaintiff father, individually, commenced this action seeking damages
for injuries sustained by Chandra when she lacerated her wrist on
strips of metal in the water collection and filtration system of a
swimming pool owned and operated by defendants Liverpool Central
School District and the Liverpool Central School District Board of
Education (collectively, School District defendants). Plaintiffs
alleged that the injuries were caused by, inter alia, the negligent
design, manufacture and installation of the water collection and
filtration system, and that defendant Klepper, Hahn & Hyatt, Engineers
and Landscape Architect, P.C. (KHH) was liable for damages because the
School District defendants had hired KHH to provide structural and
mechanical engineering services during a renovation of the swimming
pool. After some discovery, KHH moved for summary judgment dismissing
the complaint against it pursuant to CPLR 3212 (b) and (i), and KHH
moved separately pursuant to those subdivisions for summary judgment
dismissing “any and all current or prospective cross claims” against
it. We note that KHH did not name any specific cross claimants in
that motion, but the moving papers of KHH included the answers with
cross claims against it from the School District defendants, defendant
Natare Corporation (Natare), and defendant Bette & Cring, LLC,
formerly known as Barry, Bette & Led Duke, Inc. (Bette & Cring).
Supreme Court denied KHH’s motions pursuant to CPLR 3212 (f), without
prejudice to renew pursuant to CPLR 3212 (b) and (i) following
additional discovery. We reverse.

     We conclude with respect to both motions that KHH met its initial
burden pursuant to CPLR 3212 (b) by submitting evidence establishing
that it was not involved in the design, manufacture or installation of
the water collection and filtration system, and thus that the work KHH
performed on the project “did not cause or contribute to the happening
of the accident” (Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 755; see
Davies v Ferentini, 79 AD3d 528, 528-529). In opposition to the
motions, plaintiff, the School District defendants, Natare, and Bette
& Cring, failed to raise triable issues of fact (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). We agree with KHH
that the court erred in denying the motions pursuant to CPLR 3212 (f).
“Although a motion for summary judgment may be opposed on the ground
‘that facts essential to justify opposition may exist but cannot be
stated’ (CPLR 3212 [f]), ‘the opposing party must make an evidentiary
showing supporting [that] conclusion’ ” (Preferred Capital v PBK,
Inc., 309 AD2d 1168, 1169); “[m]ere speculation . . . is not
sufficient to raise an issue of fact” (Newman v Regent Contr. Corp.,
31 AD3d 1133, 1135 [internal quotation marks omitted]). Here, the
record establishes that KHH disclosed its project files to plaintiffs,
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                                                         CA 15-00023

and plaintiffs had the opportunity to depose a KHH employee about the
project. The contention of plaintiffs and the cross claimants that
further discovery may result in the disclosure of evidence that KHH
was involved in the design, manufacture or installation of the water
collection and filtration system is merely speculative (see State Farm
Fire & Cas. Co. v Ricci, 96 AD3d 1571, 1574; see generally Kirbis v
LPCiminelli, Inc., 90 AD3d 1581, 1582-1583; WILJEFF, LLC v United
Realty Mgt. Corp., 82 AD3d 1616, 1617).

     In light of our determination, we do not address KHH’s contention
that it was entitled to summary judgment pursuant to CPLR 3212 (i).




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
