SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

288 

CA 11-01354 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.

 

 

DANIEL J. SMITH, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

THOMAS CASSIDY AND MICHAEL UNDERWOOD, DOING 

BUSINESS AS CASSIDY & UNDERWOOD CONSTRUCTION, 

DEFENDANTS-APPELLANTS. 

--------------------------------------------- 

ALLSTATE INSURANCE CO., AS SUBROGEE OF DANIEL 

SMITH, PLAINTIFF-RESPONDENT,

V

 

THOMAS CASSIDY AND MICHAEL UNDERWOOD, DOING 

BUSINESS AS CASSIDY & UNDERWOOD CONSTRUCTION, 

DEFENDANTS-APPELLANTS.

 

HISCOCK & BARCLAY, LLP, ROCHESTER (MARK T. WHITFORD, JR., OF COUNSEL),

FOR DEFENDANTS-APPELLANTS. 

SCOTT AND GILBERT, LLP, CANANDAIGUA (JOHN J. GILBERT OF COUNSEL), FOR

PLAINTIFF-RESPONDENT ALLSTATE INSURANCE CO., AS SUBROGEE OF DANIEL

SMITH.

PHILLIPS LYTLE LLP, ROCHESTER (RICHARD T. TUCKER OF COUNSEL), FOR

PLAINTIFF-RESPONDENT DANIEL J. SMITH. 

 

Appeal from an order of the Supreme Court, Livingston County

(Dennis S. Cohen, A.J.), entered March 29, 2011. The order, inter

alia, granted the motions of plaintiffs for leave to renew and

reargue, and upon renewal and reargument, granted the prior cross

motions of plaintiffs for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff Daniel J. Smith commenced an action

seeking damages resulting from the petroleum spill that occurred when

defendants punctured the oil line on his property while installing

vinyl skirting around the perimeter of his residence. Plaintiff

Allstate Insurance Co. (Allstate), as subrogee of Smith, commenced a

subsequent action seeking damages arising out of the petroleum spill,

and the actions were consolidated. Supreme Court granted Smith’s

motion seeking, inter alia, leave to renew and reargue his prior cross
-2- 288 

CA 11-01354 

motion for summary judgment on liability and his opposition to

defendants’ amended motion seeking sanctions for spoliation of

evidence, and the court also granted Allstate’s motion seeking leave

to renew and reargue its prior cross motion for summary judgment on

its complaint and its opposition to defendants’ amended spoliation

motion. Upon renewal and reargument, the court granted plaintiffs’

prior cross motions. 

Contrary to defendants’ contention, we conclude that the court

did not abuse its discretion in granting plaintiffs’ respective

motions for leave to renew and reargue (see generally Tishman Constr.

Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377; Dixon v New

York Cent. Mut. Fire Ins. Co., 265 AD2d 914, 914). With respect to

renewal, the court properly exercised its discretion in determining

that plaintiffs were justified in not offering the newly discovered

evidence in support of the prior cross motions (see CPLR 2221 [e]

[3]). Such evidence was discovered as a result of Smith’s

investigation conducted subsequent to the prior cross motions and

included the fuel tank removed from Smith’s property following the

petroleum spill, as well as the missing sections of oil line that were

discovered in the crawl space under his home. With respect to

reargument, the court recognized that it had “misapprehended [certain

facts] in determining the prior [cross] motion[s]” (CPLR 2221 [d]

[2]), which had led the court to conclude that there was an issue of

fact regarding whether Smith may have contributed to the petroleum

discharge. 

We reject defendants’ further contention that the court, upon

renewal and reargument, erred in granting plaintiffs’ respective cross

motions for summary judgment. Plaintiffs met their initial burdens

with respect to their Navigation Law § 181 (5) causes of action by

establishing that defendants discharged petroleum when they punctured

the oil line while installing the vinyl skirting around Smith’s home

(see Tifft v Bigelow’s Oil Serv., Inc., 70 AD3d 1248, 1249; see also

State of New York v Green, 96 NY2d 403, 408). In opposition,

defendants failed to raise a triable issue of fact with respect to

either their role in discharging the petroleum or whether Smith caused

or contributed to the petroleum spill (see Tifft, 70 AD3d at 1249; see

also White v Long, 85 NY2d 564, 569). 

Entered: March 23, 2012 Frances E. Cafarell

Clerk of the Court