SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1337 

CA 11-00444 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ. 

 

VERIZON NEW YORK, INC., PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

BARLAM CONSTRUCTION CORP., DEFENDANT, 

AND 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.), dated November 9, 2010. The judgment

awarded plaintiff the sum of $47,124.87 against defendant ECSM Utility

Contractors, Inc. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law without costs and the complaint is

dismissed. 

Memorandum: Plaintiff, the owner of underground cables and

facilities on a construction site in Camillus, New York, commenced

this action seeking money damages arising from the damage caused to

its cables. Defendant Barlam Construction Corp. (Barlam) was a

subcontractor preparing the property for residential housing, and

defendant ECSM Utility Contractors, Inc. (ECSM) was a utility locator

for plaintiff. In accordance with General Business Law §§ 760 - 767

and 16 NYCRR part 753, Barlam telephoned the one-call notification

system to request a mark-out of all underground facilities in the area

that it planned to excavate. ECSM was then electronically notified to

conduct the mark-out of plaintiff’s underground facilities. An ECSM

employee marked out plaintiff’s facilities on December 1, 2005 using

orange paint and flags, but almost two weeks later Barlam dug up some

of plaintiff’s cables while excavating the property. Following a

bench trial, Supreme Court entered judgment in favor of plaintiff

against ECSM. We reverse. 

We note at the outset that New York does not recognize tort

claims arising out of the negligent performance of a contract (see

Sommer v Federal Signal Corp., 79 NY2d 540, 551; Gallup v Summerset
-2- 1337 

CA 11-00444 

Homes, LLC, 82 AD3d 1658, 1660), and plaintiff failed to prove that

ECSM owed it a duty independent of any contractual obligations. We

further conclude that plaintiff failed to prove that ECSM breached the

contract between the parties inasmuch as plaintiff failed to introduce

into evidence the original agreement between the parties, and the

burden of proving the existence, terms and validity of a contract

rests on the party seeking to enforce it (see Paz v Singer Co., 151

AD2d 234, 235). Here, plaintiff failed to establish that the original

contract came within an exception to the best evidence rule by

sufficiently explaining the unavailability of the original contract

(see generally Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d

639, 643-644), and the court erred in permitting plaintiff to

establish the terms of the contract through secondary evidence in the

absence of any proof that the original contract was lost or destroyed

(see id. at 644; Chamberlain v Amato, 259 AD2d 1048, 1048-1049). 

Entered: December 23, 2011 Frances E. Cafarell

Clerk of the Court