Supreme Court, Appellate Division, Second Department, New York.

J. P. LIEBERMAN & SON, INC., Appellant,
v.
SAMUEL SCHLOSBERG, INC., Respondent.


April 11, 1966.


 Action for damages for negligent and unworkmanlike performance of contract to
install plumbing and related facilities in construction of a building.  From an
order of the Supreme Court, Queens County, James A. Roe, Jr., J., denying its
motion for summary judgment, with direction for assessment of damages, the
plaintiff appealed.  The Supreme Court, Appellate Division, held that in view of
admission by defendant's president with respect to leaks occurring on project
and pretrial testimony of defendant's general heating and air- conditioning
superintendent as to why pipe installed by defendant had broken away from
fitting and in absence of any exculpatory explanation there was not presented
any triable issue of fact as to liability of defendant which had guaranteed good
and workmanlike performance for damages for negligent and unworkmanlike
performance of contract.

 Order reversed, plaintiff's motion granted and action remitted with directions.


West Headnotes

Judgment  185.3(8)
228k185.3(8) Most Cited Cases

In view of admission by defendant's president with respect to leaks occurring on
project and pretrial testimony of defendant's general heating and air-
conditioning superintendent as to why pipe installed by defendant had broken
away from fitting and in absence of any exculpatory explanation there was not
presented any triable issue of fact as to liability of defendant which had
guaranteed good and workmanlike performance for damages for negligent and
unworkmanlike performance of contract to install plumbing and related facilities
in construction of building.
 **242 Dreyer & Traub, Brooklyn, for appellant; Samuel Kirschenbaum, Brooklyn,
of counsel.

 Raymond J. MacDonnell, New York City, for respondent; Philip Hoffer, New York
City, of counsel.


 Before BELDOCK, P.J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.


 MEMORANDUM BY THE COURT.

 *768 In an action to recover damages arising out of negligent and unworkmanlike
performance of a contract to install plumbing and related facilities in the
construction of a building, plaintiff appeals from an order of the Supreme
Court, Queens County, entered August 13, 1965, which denied its motion for
summary judgment, with a direction for an assessment of damages pursuant to
subdivision (c) of CPLR 3212.

 Order reversed, with $10 costs and disbursements; plaintiff's motion granted;
and action remitted to the court below for the purpose of determining and
assessing the damages and for the entry of an appropriate judgment in
plaintiff's favor.

 In our opinion, the motion papers raise no triable issue of fact sufficient to
preclude granting of the motion.  It is not denied that defendant guaranteed
that the work would be performed in a good and workmanlike manner and that the
materials furnished would be of good quality and suitable for the purposes
intended.  The record contains an admission by defendant's president that the
leaks which occurred on the project were due to 'weak connections that were made
by our steamfitters' which 'opened up when they were subjected to normal
expansion and contraction.'  The president's affidavit in opposition to the
motion does not deny or attempt to explain that admission.  Defendant's general
heating and air-conditioning superintendent testified on an examination before
trial that the pipe installed by defendant had broken away from the fitting
because of inadequate threading.  No attempt was made to explain the
superintendent's admission.  In the absence of anyexculpatory explanation as to
how this break in a pipe behind a closed wall could have occurred, no triable
issue of fact as to defendant's liability was presented.

269 N.Y.S.2d 241, 25 A.D.2d 768

END OF DOCUMENT