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