9825. VERIZON NEW YORK INC., plfres, —AGAINST— SKANSKA USA CIVIL NORTHEAST INC., FORMERLY KNOWN AS SLATTERY SKANSKA INC., def-ap — Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for ap — Solomon and Solomon, P.C., Albany (Harold L. Solomon of counsel), for res — ORDER, SUPREME COURT, NEW YORK COUNTY (RICHARD F. BRAUN, J.), ENTERED OCTOBER 10, 2012, WHICH, TO THE EXTENT APPEALED FROM, DENIED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, UNANIMOUSLY AFFIRMED, WITHOUT COSTS. DEFENDANT FAILED TO MAKE A PRIMA FACIE SHOWING THAT ITS CONSTRUCTION ACTIVITIES DID NOT CONTRIBUTE TO THE DAMAGE SUFFERED BY PLAINTIFF’S CABLES. SPECIFICALLY, WHILE DEFENDANT SET FORTH EVIDENCE THAT IT WAS NOT PERFORMING WORK IN THE VICINITY OF THE WATER MAIN BREAK AT THE TIME THAT THE LEAK WAS FIRST OBSERVED, IT FAILED TO ADDRESS EVIDENCE THAT IT HAD PERFORMED SECANT PILE DRILLING OPERATIONS IN THE AREA OF THE LEAK, A FEW DAYS PRIOR. SINCE NO EVIDENCE WAS OFFERED THAT PROPER PRECAUTIONS WERE TAKEN DURING THE DRILLING, DEFENDANT FAILED TO MEET ITS INITIAL BURDEN AS MOVANT (see Hixon v. Congregation Beit Yaakov, 57 AD3d 328 [1st Dept 2008]). PLAINTIFF’S CABLES WERE NOT “KEY EVIDENCE” ON THE ISSUE BEING LITIGATED — NAMELY, WHETHER DEFENDANT CAUSED THE WATER MAIN BREAK THAT LED TO THE CABLES BECOMING WET AND FAILING. THUS, THE MOTION COURT PROPERLY DENIED THAT PORTION OF DEFENDANT’S MOTION SEEKING SUMMARY JUDGMENT BASED UPON PLAINTIFF’S DISPOSAL OF PORTIONS OF THE INVOLVED CABLES SIX MONTHS AFTER THE INCIDENT (see Shapiro v. Boulevard Hous. Corp., 70 AD3d 474, 476 [1st Dept 2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. TOM, J.P., SWEENY, SAXE, ROMN, FEINMAN, JJ. 9827. TRANSCONTINENTAL INSURANCE COMPANY plf-ap, v. TWIN CITY FIRE INSURANCE COMPANY, def-res — Carroll, McNulty & Kull LLC, New York (Douglas K. Eisenstein of counsel), for ap — Churbuck Calabria Jones & Materazo PC, Hicksville (Nicholas P. Calabria of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered February 15, 2012, which, to the extent appealed from, declared that defendant is only obligated to indemnify in the underlying personal injury action within its stated policy limit, unanimously affirmed, with costs.
The motion court correctly followed Preserver Ins. Co. v. Ryba (10 NY3d 635 [2008]) in holding that the insured’s work in New York did not entitle it to unlimited employer’s liability coverage under the policy issued by defendant. Assuming arguendo that notice of the insured’s work in New York is a factor in triggering the coverage sought by plaintiffs, the motion court properly found such notice lacking.
