Schwartzman v. 346 West 22nd Street Corp.

Plaintiffs, owners of a landmark brownstone located at 344 West 22nd Street in Manhattan, commenced this action in March 1987 against the owner of an adjoining brownstone, defendant 346 West 22nd Street Development Corp., alleging damages to their property caused by workers renovating the adjoining property. Thereafter, in April 1988, plaintiffs commenced a separate action against all others involved in the renovation, including defendant Greco Brothers Ready Mix Concrete Co., who supplied cement to the site, delivering it at curbside. The actions were consolidated. In support of its motion for summary judgment, defendant Greco demonstrated that its employees did not enter the adjoining property, but merely delivered cement to the curbside in front, thereby negating plaintiffs’ claim that their damages were caused by persons working on the site. Nothing in plaintiffs’ opposition to the motion raised a question as to whether this defendant caused any of the damage plaintiffs allege their building sustained. Therefore, summary judgment was properly 541 granted (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338). This is not a case where knowledge necessary to oppose summary judgment is in the exclusive possession of the movant (cf., Ellis v Allstate Ins. Co., 151 AD2d 543). The court correctly concluded that the more appropriate course would have been for plaintiffs to proceed first only against the owners and contractors, deposing them to determine whether others should be joined. We have considered plaintiffs’ other arguments, and find them to be without merit. Concur — Sullivan, J. P., Carro, Ross and Smith, JJ.