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