New York Schs. Ins. Reciprocal v Milburn Sales Co., Inc., 2018 NY Slip Op 06925 [165 AD3d 963]

October 17, 2018

Appellate Division, Second Department

[*1]

New York Schools Insurance Reciprocal, as Assignee of West Babylon Union Free School District, Appellant-Respondent,

v

Milburn Sales Co., Inc., Doing Business as Milburn Carpet One Floors & Homes, Doing Business as Milburn Flooring Mills, Respondent-Appellant. (And Third-Party Actions.)

Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Michael T. Reagan of counsel), for appellant-respondent.

Kennedys CMK, New York, NY (Frank J. Wenick of counsel), for respondent-appellant.

In a subrogation action to recover damages for property damage, the plaintiff appeals and the defendant cross-appeals from an order of the Supreme Court, Suffolk County (James Hudson, J.), dated March 15, 2017. The order, insofar as appealed from, denied the plaintiff’s motion for summary judgment on the issue of liability. The order, insofar as cross-appealed from, denied the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On February 18, 2010, a fire damaged a school in the West Babylon Union Free School District (hereinafter the school district). In the weeks leading up to the fire, various contractors, including the defendant, had performed work at the school. The plaintiff commenced this subrogation action against the defendant to recover damages that the plaintiff had paid to the school district. The plaintiff moved for summary judgment on the issue of liability, and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and the cross motion. The plaintiff appeals, and the defendant cross-appeals.

In light of the conflicting expert affidavits submitted by the plaintiff and the defendant in support of their motion and cross motion, respectively, we agree with the Supreme Court’s denial of the motion and cross motion ( see e.g. Colao v St. Vincent’s Med. Ctr. , 65 AD3d 660 , 662 [2009]; Robinson-Reese v Kopp , 62 AD3d 980 , 980 [2009]; Lopez v Gem Gravure Co., Inc. , 50 AD3d 1102 , 1103 [2008]; Gleeson-Casey v Otis El. Co. , 268 AD2d 406, 407 [2000]). Balkin, J.P., Austin, Hinds-Radix and Connolly, JJ., concur..