Ronald J. Papa et al.,, Appellants,v.Associated Indemnity Corporation et al., Respondents.BriefN.Y.June 20, 2017To be Argued by: SEAN W. COSTELLO (Time Requested: 10 Minutes) Appellate Division Docket No. CA 16-_____ Erie County Clerk’s Index No. 2012-600077 New York Supreme Court Appellate Division—Fourth Department RONALD J. PAPA and THERESA M. PAPA d/b/a MUIR LAKE ASSOCIATES, Plaintiffs-Respondents, – against – ASSOCIATED INDEMNITY CORPORATION and D&D POWER, INC., Defendants-Appellants. NATIONAL FIRE ADJUSTMENT CO., INC., Plaintiff-Respondent, – against – D&D POWER, INC., Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT D&D POWER, INC. Of Counsel: R. Anthony Rupp III Sean W. Costello RUPP BAASE PFALZGRAF CUNNINGHAM LLC Attorneys for Defendant-Appellant D&D Power, Inc. 1600 Liberty Building 424 Main Street Buffalo, New York 14202 (716) 854-3400 TABLE OF CONTENTS TABLE OF AUTHORITIES .. ..... ..... .. ........... .. .... ....... .. .. ... .... ... ............... ............. ..... ... ....... ........... ii CASES ................................................................................................................................ ii STATUTE ............. ........................................ ... ... ................. ............ ... ..... ..... ... ... ......... ...... iii QUESTIONS PRESENTED .. ....... ... ............. .............................................. ............ ...... ..... ... .. .. ... .. .. ! PRELIMINARY STATEMENT ................................................... .. ....... ......... .... ........ ................... 2 PROCEDURAL BACKGROUND .................................................................................................. 4 FACTUAL BACKGROUND ............................ ..... ....... .... ............. ... ...... ............ ... .... .. ...... .. ....... ... . 6 ARGUMENT ....... ...................... ................ .................... ....... ... ............... ................... .......... .......... 15 POINT I PLAINTIFFS' SPECULATION DOES NOT CREATE A TRIABLE ISSUE OF FACT ...... ..... ....... ................... ... ..... .. .... . 15 POINT II D&D WAS NOT NEGLIGENT, AND PLAINTIFFS' DAMAGES WERE NOT REASONABLY FORESEEABLE AT THE TIME OF THE UTILITY POLE REPLACEMENT .... ............... ... .................. .. 21 CONCLUSION ......................................................................................... ..... ..................... .. ...... ... 24 TABLE OF AUTHORITIES CASES Alvarez v. Prospect Hasp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986) ... ..... ................. ...... ....... ...... ........ ... .. ............ ........ ... 15 Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895 (1978) .. ...... ...... ...... ... ................... ........... ............ ........... .. . 21 Butler-Francis v. New York City Hous. Auth., 38 A.D.3d433, 834N.Y.S.2d 15 (lstDep't2007) .... ........ .. .............. .. .... ... ... .. ......... ... 17, 18, 19 Castro v. N Y. Univ., 5 A.D.3d 135, 773 N.Y.S.2d 29 (1st Dep't 2004) ... ..... ... ...... ............ ... ..... ...... .... .. ...... ......... .... 17 Clough v. Szymanski, 26 A.D.3d 894,809 N.Y.S.2d 707 (4th Dep' t 2006) ..... .. ......... ... ..... ... ...... ...... ... .... 15, 16, 19, 20 Dance Magic, Inc. v. Pike Realty, Inc., 85 A.D.3d 1083, 926 N.Y.S.2d 588 (2d Dep't 2011) .. ..... ......................... ............ ........ ... .. ... ... 21 Danielenko v. Kinney Rent A Car, Inc., , 57 N.Y.2d 198, 455 N.Y.S.2d 555 (1982) ...... .............................. ... ............ ... .............. .. .... ...... 21 Deridarian v. Felix Contractor Corp., 51 N.Y.2d 308,315, 414 N.E.2d 666 (1980) .. .................................. ..... ..... ... ......... ..... ..... .. 15, 16 Gordon v. New York, 70 N.Y.2d 839, 523 N.Y.S.2d 445 (1987) ..... ..... .. ............. .. ........ .. ........ ... .. ........... ................... 22 Hahn v. Tops Markets, LLC, 94 A.D.3d 1546, 943 N.Y.S.2d 361 (4th Dep't 2012) ... ... ... .... ............ .... ............ .. ......... .... 15, 16 Lomnitz v. Woodbury, 81 A.D.2d 828,438 N.Y.S.2d 825 (2d Dep't 1981) .... ......... ............... .. ... ...... ....... ........ ..... ... ... 20 Machen v. State, 57 A.D.2d 719, 396 N.Y.S.2d 113 (4th Dep' t 1977) ... ..... .. .............. ...... ....... ...... .......... ........... 19 Van Ostberg v. Crane, 273 A.D.2d 895, 709 N.Y.S.2d 774 (4th Dep't 2000) ........................................................ ... .. . 16 Wasson v. Szafarski, 6 A.D.3d 1182, 776 N.Y.S.2d 423 (4th Dep' t 2004) .......... ..... ........... ...... ....... ....... ... .. .... ......... 16 11 Winegrad v. NYU Medical Ctr., 64 N.Y.2d 851,487 N.Y.S.2d 316 (1985) ... ............ .... ......... ......... .... .. ...... ..... ..... ............... ...... 15 Zuckerman v. New York, 427 N.Y.S.2d 595,404 N.E.2d 718 (1980} ..................................................... ..................... ..... 17 STATUTE CPLR 3212 ................ ...................... ................................................................... ...... ........... ........ 4, 5 111 QUESTIONS PRESENTED 1. When a defendant presents evidence that its alleged negligence was not the proximate cause of plaintiffs ' damages, can plaintiffs defeat defendant's motion for summary judgment and create a triable issue of fact by presenting speculation that the defendant's conduct caused the damages? Answer of the trial court: Yes. 2. Where a metal conduit sweep appeared sound and defendant had no reason to believe the buried portion of the conduit sweep was corroded, fragile, and riddled with holes, was it foreseeable that damage would result from defendant engaging in a standard utility pole replacement procedure that does not result in damage to a sound conduit sweep? Answer of the trial court: Yes. PRELIMINARY STATEMENT Defendant, D&D Power, Inc. ("D&D"), submits this brief in support of its consolidated appeals from an order granted by the Hon. Diane Y. Devlin, J.S.C., on February 22, 2016, which denied D&D' s motions for summary judgment. Plaintiffs allege that D&D damaged a conduit while replacing a utility pole near their premises, which resulted in water entering their premises. As set forth herein, D&D's motions should have been granted. The conduit failed because of corrosion, not D&D 's work. The question of causation is straightforward and there is no material issue of fact requiring a trial. The corrosion-related failure of the conduit is apparent in this photograph of the conduit sweep at issue (R. 251): - 2 - The above photograph is from the affidavit of expert metallurgist Mohan S. Devgun, Ph.D., that D&D submitted in support of its motions for summary judgment. Professor Devgun confirmed that the metal conduit sweep failed due to corrosion, not due to D&D' s work, and plaintiffs presented no competent expert evidence that creates a material question of fact over the cause for the conduit failure. All that plaintiffs submitted in opposition to D&D's motions for summary judgment was their theory that the conduit broke during the utility pole replacement, which was nothing more than speculation that was disproved by expert analysis of the evidence. D&D respectfully submits that as set forth below - and demonstrated in the above photograph - the evidence is so clear that a trial is not necessary to conclude that the conduit failed due to corrosion. Plaintiffs' damages also were not foreseeable, because the conduit appeared sound from the surface and it was not reasonably foreseeable when D&D performed its work that the buried conduit was corroded, fragile, and riddled with holes. The parties agree that some water had entered plaintiffs' premises through the conduit even before D&D replaced the utility pole. A quantity of water larger than previously had flowed through the conduit entered plaintiffs' premises through the conduit 36 days after D&D replaced the utility pole. However, this loose correlation between the utility pole replacement and the larger quantity of water entering the premises does not establish D&D's work as the proximate cause of plaintiffs' damages. The physical evidence - the conduit sweep that failed- clearly shows that the conduit failed due to corrosion. The trial court should not have found an issue of material fact barring summary judgment to D&D based on plaintiffs ' speculative claims that D&D performed the utility pole - 3- replacement in a negligent manner. D&D submitted the opinion of an expert metallurgist that the failure of the conduit resulted from corrosion, not D&D' s work. In any case, the testimony ofD&D's journeyman line mechanics, who testified that the pole replacement was proper, demonstrated that plaintiffs' allegations of negligence are unfounded speculation by non-experts divorced from any knowledge of the proper procedures for utility pole replacement. Further, plaintiffs did not present the trial court with any evidence that the utility pole replacement- even if improper- damaged the conduit at issue, because corrosion caused the damage to the conduit. Finally, evert ifD&D's work caused further damage to the corroded conduit, which already was in a state of failure, the trial court should have granted D&D summary judgment as a matter of law because it was not foreseeable that the conduit, which appeared from the surface to be sound, was corroded through underground at its point of failure. For all of these reasons, and as discussed below, D&D cannot be liable to plaintiffs as a matter oflaw. The trial court's order should be reversed and D&D's motions for summary judgment pursuant to CPLR 3212 should be granted. PROCEDURAL BACKGROUND This consolidated appeal is from a single order that denied D&D' s motions for summary judgment in two actions. In one action, the plaintiffs are Ronald J. Papa and Theresa M. Papa d/b/a Muir Lake Associates ("Muir Lake"), and in the other action, the plaintiff is National Fire Adjustment Co., Inc. ("NF A"). Mr. Papa is President ofNF A. (R. 850). Muir Lake' s claim against D&D is as owner of the building allegedly damaged in the underlying incident, and NF A' s claim is for its personal property that allegedly was damaged in the same - 4 - incident. The motions for summary judgment submitted by D&D were almost identical in both the Muir Lake and D&D actions, and plaintiffs in both the Muir Lake and NF A actions submitted just one set of papers in opposition to both motions. Citations to the record made herein are to the papers submitted in the Muir Lake action, unless reference to a paper submitted in connection with the motion in the NF A action is required. Muir Lake and NFA commenced the underlying actions by filing separate summonses and complaints with the Erie County Clerk's Office on January 4, 2012. (R. 70, 297). The Muir Lake plaintiffs also named as a defendant their property insurance company, Associated Indemnity Corporation ("AIC"). (R. 70). The same trial court order that denied D&D's motions for summary judgment also denied AIC's motion for summary judgment and granted Muir Lake's cross-motion for summary judgment against AIC, and AIC is pursuing an appeal from that order on this record. D&D answered plaintiffs' complaints on February 24, 2012, denying liability to plaintiffs for the damages alleged and asserting various affirmative defenses. (R. 78, 303). The parties conducted extensive pretrial discovery. D&D moved for summary judgment pursuant to CPLR 3212 after plaintiffs filed notes of issue on August 27,2015. (R. 87, 311). Justice Devlin denied D&D's motions for summary judgment on February 22, 2016, and D&D now appeals. - 5 - FACTUAL BACKGROUND A. Plaintiffs' Allegations On May I, 2010, D&D replaced a utility pole adjacent to plaintiffs' premises. (R. 73-74). Plainti~fs' complaints allege that" ... D&D failed to exercise reasonable care in the replacement of the utility pole by failing to support the electrical conduit line." (R. 74, 301). As a result, plaintiffs allege that "the electrical conduit line ruptured" and on June 6, 2010, water entered into their basement through the conduit. (R. 74, 301). Contrary to plaintiffs' claims, the evidence that D&D submitted in support of its motions for summary judgment established that the conduit failed because oflong-term corrosion, not D&D's work. (R. 227-247). B. Testimony of Ronald J. Papa Plaintiff Ronald J. Papa was present for a portion ofD&D's pole replacement operation. (R. 100). He took photographs during the pole replacement. (R. 101). Mr. Papa did not observe anything improper in connection with the pole replacement, but he admits that utility pole replacements are not his "area of expertise." (R. I 01 ). Despite his admitted lack of expertise, Mr. Papa was "told" that the utility pole replacement broke the conduit because the conduit was not supported during the pole replacement. (R. 1 02). "The water entered in the lower level of the building, in the electrical room, through the electrical conduit." (R. 99). Muir Lake owned this electrical conduit. (R. I12). Plaintiffs' premises were constructed- and the conduit was installed- in I983 or 1984. (R. 411, 563). The utility pole at issue was located in a ditch. (R. I 05). - 6- Subsequent to the loss alleged in the complaint, plaintiffs discovered that there was rust beneath where the conduit entered their premises. (R. 1 08). The rust pre-dated the incident alleged in plaintiffs' complaint. (R. 108-109, 270-271). Other signs that water entered through the conduit prior to the loss alleged in the complaint included rust on the electrical cabinet where the conduit entered plaintiffs' premises and decay on a wooden board underneath the electrical cabinet. (R. 111, 123-126). Mr. Papa testified in part that "[i]t' s obvious now - and I'll speak for a moment or two, ifl may, but it' s obvious now, when we opened the cabinet and saw the rust in there, that we were getting some minor water in that basement." (R. 114). Plaintiffs also discovered that at some point prior to the incident at issue putty had been applied to patch up the end of the conduit, in an effort to stop further water from entering the premises through the conduit. (R. 116-117). C. Testimony D&D Representative Andrew Ripple Two D&D employees testified at pre-trial depositions. Andy Ripple is qualified as a journeyman lineman and has worked as a general foreman for D&D since 2007. (R. 132-135). He was involved in about 100 pole replacements between 2007 and 2010. (R. 137). He testified that normal pole-replacement procedure does not require support for the conduit. (R. 138). Structurally sound conduits do not rupture during a pole replacement when the conduit, and wires coming through the conduit, are not supported during the pole replacement. (R. 143). The conduit is buried a minimum of30 inches. (R. 144-145). Mr. Ripple' s involvement in this matter was through his role overseeing Steve Lockett, the general foreman responsible for the job. (R. 136). D&D replaced the utility - 7 - pole at issue as a subcontractor for Fibertech Networks, LLC ("Fibertech"). (R. 73-74). Fibertech originally was named as a defendant in the underlying lawsuits, but the parties executed stipulations of discontinuance with respect to Fibertech on April 6, 2015 . (R. 1-2). After D&D replaced the utility pole, another Fibertech sub-contractor placed Fibertech's cable on the pole. (R. 139-140). D. Testimony of D&D Representative Steve Lockett Steve Lockett is a journeyman lineman who had more than 1 0 years of experience at the time of the utility pole replacement. (R. 156). His apprenticeship training included 7,000 hours of on-the-job training, as well as bookwork and tests. (R. 156-157). This included a minimum requirement of about 750 hours of on-the-job training related to pole setting, including changing and replacing utility poles as an apprentice under the supervision of a journeyman lineman. (R. 173-174). He has worked on approximately 100 pole replacements. (R. 158). D&D completed the utility pole replacement at issue using the "spot replacement" method. (R. 159-160). To complete the utility pole replacement, the electric transformers at the top of the utility pole were de-energized. (R. 161 ). Then, D&D disconnected from the transformers the secondary electrical conductors (the "secondary service lines"), which supplied energy to the subject premises and ran through the subject conduit. (R. 161 ). The top of the conduit rose about six to eight feet from the ground using a rigid metal "riser" pipe. (R. 181-182). Between that pipe and the transformers, U-guard bolted over the wires and onto the utility pole protected the secondary service lines. Next during the pole replacement, this U-guard was unbolted. (R. 161). After the U-guard was unbolted, the top sections of the - 8 - electrical service conductors were loose from the utility pole, and were laid over the top of the rigid metal riser pipe onto the ground. (R. 165). The rigid metal riser pipe connected to the top of the conduit sweep/elbow at issue, the bottom of which then connected to the longer portion of PVC conduit running to plaintiffs' premises. (R. 153-155). The top of the sweep/elbow was level with the ground, and it connected to the six to eight foot rigid metal riser pipe at a coupling. (R. 167 -168). The rigid metal riser pipe was affixed to the utility pole with U-clamps. The top of the rigid metal riser pipe moved away from the utility pole when it was undamped. (R. 166-167). At the bottom of the utility pole, the rigid metal riser pipe was six or eight inches away from the pole. (R. 181 ). The top part of the riser had been pulled tight against the original utility pole, so when it was unscrewed it moved back to its original resting position, which meant it moved away from the utility pole. (R. 167 -168). At this point, D&D pulled the old utility pole straight up out of the ground using a truck-mounted machine. (R. 169). D&D then cleaned out the existing hole using long hand tools. (R. 170). The new utility pole was inserted in the existing hole. (R. 171 ). Then, the transformers and primary electric lines, which were removed from the old pole and suspended in the air during the pole replacement, were attached to the new pole. (R. 171 ). D&D next re-attached the rigid metal riser pipe then to the pole, and the secondary service lines were re-connected and covered with protective U-guard. (R. 171). D&D inserted the new utility pole so that it was plumb with the rigid metal riser pipe, and therefore it was not necessary to move - 9- the rigid metal riser pipe back the six inches it moved when it was un-damped to re-attach it to the new utility pole. (R. 186). During a utility pole replacement like the one D&D completed, the secondary electric service connectors are not supported in the air; they are laid on and supported by the ground. The ground surface and the wires' natural tendency to coil support them. (R. 175). These wires would be kept suspended in the air during a pole replacement only if needed for safety reasons, such as to keep them off a sidewalk, out of the way of pedestrians. (R. 175). At no point during the utility pole replacement was any deterioration, corrosion, or other condition of concern observed with respect to the conduit visible during the pole replacement. (R. 168, 180, 187-188). Mr. Lockett observed the conduit at issue when it was excavated following the loss alleged in plaintiffs' complaint, and the area of the conduit that broke was buried 18 to 30 inches below the surface. (R. 172). E. Testimony of Fibertech Representative Earl Knab Earl Knab, a Fibertech employee, testified that after the utility pole was replaced, Fibertech employees, not D&D, attached Fibertech's cable to the utility pole. (R. 206-207, 209-21 0). Further, Mr. Knab observed the visible portion of the subject conduit prior to the utility pole replacement, and he observed no corrosion or physical damage that suggested to him that it would require repair or replacement. (R. 57). - 10- F. Expert MetaUurgist Mohan S. Devgun, Ph.D. The only evidence that plaintiffs preserved relative to the failed conduit was the sweep/elbow at issue. On May 5, 2015, Professor Mohan S. Devgun, an expert metallurgist, inspected the sweep. (R. 229). Professor Devgun' s affidavit describes his education and more than 35 years of experience as a metallurgist, and sets forth the bases for the professional metallurgical opinion given therein. (R. 228-249). Professor Devgun concluded that "the sweep failed because of prolonged corrosion and that overstress of the metal [from the pole replacement] played no part in the separation of the sweep from the PVC conduit." (R. 247). D&D's tenth affirmative defense to plaintiffs ' complaints asserts that "Plaintiffs' alleged injuries were proximately caused by a pre-existing condition .... " (R. 81 , 306). D&D supported its motions for summary judgment with Professor Devgun' s affidavit, which lays out in detail the foundation for his opinion and confirms that corrosion, not D&D' s work, caused the conduit' s failure and plaintiffs' damages. (R. 227-271). In summary, Professor Devgun observed that the conduit sweep was in sound condition near the end that would have been at the surface during the pole replacement, but the portion buried further underground "had failed in multiple areas due to severe corrosion." (R. 231,243, 251-252). The failure of the conduit was a gradual process. Prior water entry through the conduit and into plaintiffs' premises that resulted in water stains and corrosion deposits underneath the conduit where it entered plaintiffs' premises evidences the gradual deterioration of the metal conduit sweep. (R. 244). - 11 - The reason why the buried part of the conduit sweep failed due to corrosion while the portion of the conduit sweep near the surface was sound was that the action of corrosion on metal varies depending on the environment where the metal is installed. (R. 238). Where the conduit was buried further below ground, corrosion thinned the metal to the point where there were holes corroded in the conduit and the threaded end of the conduit sweep was completely missing, having corroded away. (R. 238). The threads where the sweep connected to the PVC conduit corroded away completely because threads are created by cutting away steel, leaving less thickness of steel to be corroded. (R. 242). This is the area that plaintiffs claim D&D's work damaged. (R. 854). The fact that the conduit's threads completely corroded away shows that the separation of the conduit sweep from the PVC conduit to which it attached happened over time, was due to the corrosion, and did not occur as a result ofD&D' s work. While plaintiffs suggest that the end of the metal conduit sweep separated completely from the PVC conduit because D&D broke it, D&D presented the trial court with the affidavit of its expert metallurgist who examined the evidence and concluded that the metal sweep and PVC conduit separated because the threads on the metal conduit sweep had corroded . completely. (R. 242). It is Professor Devgun's "professional opinion within a reasonable degree of metallurgical certainty that the sweep failed because of prolonged corrosion and that overstress of the metal played no part in the separation of the sweep from the PVC conduit." (R. 247). - 12- G. Plaintiffs' Evidence in Opposition to D&D's Motion In opposition to D&D's motion, plaintiffs claimed that "even if this Court determines that D&D has met its prima facie burden for summary judgment," they had submitted evidence that D&D did not support the secondary service lines during the utility pole replacement, and that "upon excavating the broken conduit ... the conduit was torqued and ruptured." (R. 847). D&D already had acknowledged that the secondary service lines were supported by the ground and their tendency to coil during the pole replacement. (R. 165). The only evidence submitted by plaintiffs in support of their contention that "the conduit was torqued and ruptured" by D&D's work was speculation contained in a notarized statement from electrician Keith Allen dated August 25, 2010 and an unsworn report from architect George Pearlman dated July 22, 2010. (R. 885, 890). Neither the Allen statement nor the Pearlman report recites any qualifications to offer an opinion on the cause of the metal conduit's failure. Plaintiffs presented no evidence to the trial court that Mr. Allen or Mr. Pearlman has any education, skill, knowledge, training, experience, or expertise with respect to utility-pole replacement procedures. Mr. Pearlman nonetheless concluded that the pole replacement "exerted pressure and force" that he alleged broke the "conduits." (R. 890). Mr. Allen's statement claims that "[i]n my opinion ... stress from the unsupported wire on the pipe twisted the conduit and ripped them right apart." (R. 886). Mr. Allen speculated that "chances are" supporting the secondary service lines would have avoided damage to the conduit. (R. 886). Mr. Allen offers nothing to explain why conduits do not break every time a similar pole-replacement procedure takes place, - 13- as D&D's witnesses testified that the pole-replacement procedure used was typical in the line mechanic trade. (R. 138, 143, 165, 175). Neither Mr. Allen nor Mr. Pearlman observed the conduit failure (which, of course, occurred underground), and incredibly, neither the Pearlman report nor Allen statement even acknowledges the extensive corrosion on the conduit. They also fail to consider the fact that water was entering plaintiffs' premises through the conduits before D&D performed the utility pole replacement. (R. 108-109, 270-271). Mr. Pearlman and Mr. Allen both reached their conclusions without reviewing the testimony of the journeyman line mechanics who had actual knowledge of the pole replacement procedure, as that testimony was taken years after the dates ofthe 2010 reports that plaintiffs submitted in opposition to D&D's motions for summary judgment. Plaintiffs submitted no expert affidavit or report disputing Professor Devgun's expert metallurgical opinion after an analysis of the evidence that the conduit failed because of corrosion. Despite the fact that plaintiffs presented only a speculative theory regarding the proximate cause of the conduit failure that was disproven by the evidence, the trial court denied D&D's motions for summary judgment. The trial court also failed to appreciate that even if plaintiffs came forward with evidence that D&D' s work damaged the conduit, the corroded condition of the conduit and the damages plaintiffs allege were not foreseeable at the time of the work, and D&D therefore cannot be liable to plaintiffs as a matter of law. On this appeal, D&D requests that this Court reject plaintiffs' speculation, find that no material issue of fact exists, and reverse the trial court to grant summary judgment to D&D. - 14- ARGUMENT As this Court is well aware, on motions for summary judgment, the moving party bears the initial burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case. See Winegrad v. NYU Medical Ctr., 64 N.Y.2d 851,487 N.Y.S.2d 316 (1985). After the moving party makes the appropriate showing, the burden then shifts to the opposing party to produce proof in admissible form establishing the existence of material questions of fact. Alvarez v. Prospect Hasp., 68 N.Y.2d 320, 326-27, 508 N.Y.S.2d 923, 926 (1986). It is well settled that speculation submitted in opposition to a motion for summary judgment - even when presented in the form of an expert affidavit - will not create the question of fact necessary to preclude summary judgment. See Clough v. Szymanski, 26 A.D.3d 894, 896, 809 N.Y.S.2d 707,709 (4th Dep't 2006) ("[m]ere speculation, including that set forth in an expert's affidavit, is insufficient to raise an issue of fact"). POINT I PLAINTIFFS' SPECULATION DOES NOT CREATE A TRIABLE ISSUE OF FACT. In order to prevail on a negligence claim, a plaintiff must prove that the defendant's conduct was the proximate cause ofthe plaintiffs injuries. The plaintiff must prove that the defendant's conduct was a substantial cause of the events that led to the plaintiffs injury. See, e.g., Deridarian v. Felix Contractor Corp., 51 N.Y.2d 308,315,414 N.E.2d 666 (1980). Generally, questions of proximate cause are for the trier of fact. See id. at 312; see also Hahn v. Tops Markets, LLC, 94 A.D.3d 1546, 1547,943 N.Y.S.2d 361 (4th Dep't 2012). However, - 15- where "only one conclusion may be drawn from the established facts," the question of proximate cause may be decided as a matter oflaw on summary judgment. See Deridarian, 51 N.Y.2d at 315; Hahn, 94 A.D.3d at 1547. Speculation cannot create issue offact sufficient to defeat a motion for summary judgment. See Clough, supra; Wasson v. Szafarski, 6 A.D.3d 1182, 776 N.Y.S.2d 423 (4th Dep't 2004) (plaintiff's expert affidavit submitted in opposition to defendant's motions for summary judgment was speculative because it was based on an assumption that was not supported by any record evidence); Van Ostberg v. Crane, 273 A.D.2d 895, 896, 709 N.Y.S.2d 774, 775 (4th Dep' t 2000) ("[t]he speculative affidavit of plaintiffs expert containing alternative explanations concerning the manner in which the accident occurred is insufficient to defeat the motion"). The trial court erred in denying D&D's motions for summary judgment because plaintiffs failed to offer anything but speculation in response to D&D's evidence that corrosion, not D&D' s conduct, resulted in the conduit's failure. D&D's motions for summary judgment are supported by the affidavit of Mohan S. Devgun, Ph.D., who is an expert metallurgist and Chair and Professor at the Buffalo State College Department of Engineering Technology. (R. 248-249). Professor Devgun is the only expert metallurgist who has examined the metal conduit sweep at issue. He opined that it is his "professional opinion within a reasonable degree of metallurgical certainty that the sweep failed because of prolonged corrosion and that overstress of the metal played no part in the separation of the sweep from the PVC conduit." (R. 247). ,Jn opposition to D&D' s motion for summary judgment, plaintiffs did not offer qualified expert evidence - from a metallurgist or otherwise - that supports their speculative - 16- claim that the conduit at issue failed due to D&D's work. Additionally, plaintiffs did not oppose D&D' s motion with the affidavit of an expert in the field of utility pole replacement, and no qualified expert controverts the testimony ofD&D's representatives regarding the propriety of D&D's utility pole replacement. Though plaintiffs submitted no expert opinion on the failure of the metal conduit, plaintiffs put before the trial court a statement from electrician Keith Allen dated August 25,2010 and a report from George Pearlman dated July 22,2010. As a threshold matter, the Pearlman report is unsworn. The trial court should not have considered the Pearlman report because "one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim . ... " Zuckerman v. New York, 427 N.Y.S.2d 595, 598,404 N.E.2d 718,720 (1980) (emphasis added). In any case, both the Pearlman and Allen documents failed to raise a genuine issue of material fact. At issue here is the cause for the failure of the metal conduit at issue. While Mr. Pearlman and Mr. Allen speculated in 20 I 0 that the metal failed because of stress placed on it during the pole-replacement operation, expert metallurgical examination of the metal conduit has disproved their hypothesis. An expert affidavit that is submitted in opposition to a motion for summary judgment does not create an issue of fact where it is "devoid of evidentiary facts and consisted of mere conclusions, speculation and unsupported allegations." Butler-Francis v. New York City Hous. Auth., 38 A.D.3d 433, 434, 834 N.Y.S.2d 15, 17 (1st Dep't 2007) citing Castro v. N.Y. Univ., 5 A.D.3d 135, 773 N.Y.S.2d 29 (1st Dep' t 2004). - 17- In Butler-Francis, the trial court denied the defendant's motion for summary judgment. The defendant supported its motion for summary judgment with the testimony of a fire marshal who conducted a cause-and-origin investigation after the fire at issue, examining the fire 's bum patterns and physical evidence. He "concluded that the fire started when the electrical cord of plaintiffs' clothes dryer, which was damaged by pinching between the dryer and kitchen range and was covered with a pile of clothes, shorted and ignited the clothes." 38 A.D.3d at 434. In opposition to the motion for summary judgment, "plaintiffs and their experts speculated that the fire was the probable result of a gas leak in the allegedly defective kitchen range based upon plaintiffs' alleged observation of flames coming from the oven when they discovered the fire and upon alleged problems with the range, including the smell of gas .. . . " !d. Plaintiff's expert failed to provide evidentiary support for his conclusions, and based his opinion on speculation, not evidence. The First Department reversed the trial court and granted summary judgment to the defendant because the speculative expert affidavit did not create a question of fact sufficient to defeat the defendant's motion for summary judgment. The parties' submissions in this case are similar to those in Butler-Francis. D&D supported its motion for summary judgment with the opinion of an expert metallurgist that establishes corrosion as the cause of the metal conduit's failure. As in Butler-Francis, plaintiffs opposed D&D's motion with speculation that the conduit was damaged in the pole replacement, based simply on the fact that the conduit had failed and the observation that the secondary service lines were not supported during the pole replacement. Plaintiffs do not let the fact that there was no evident reason to support the conduit or the secondary service lines stand in the way oftheir speculation that D&D's failure to support the conduit damaged it at a point underground - 18 - near where it transitioned from galvanized steel to PVC. (R. 57, 138, 143, 168, 180, 187-188, 243). However, plaintiffs base their theory regarding the failure of the underground portion of the conduit wholly on assumption and speculation. No one witnessed the failure of the conduit, because it took place underground. In fact, the conduit was failing long before the loss at issue, as evidenced by rust stains beneath the conduit where it entered plaintiffs' premises and other signs ofprior water entry through the conduit. (R. 108-109, 270-271). Plaintiffs emphasized that they did not have significant water entry until 36 days after D&D performed its work. (R. 855). However, this vague correlation between the date of D&D's work and the entry of a large quantity of water into their premises does not equal causation. "Negligence cannot be presumed from the mere happening of an accident." Machen v. State, 57 A.D.2d 719, 720, 396 N.Y.S.2d 113, 114 (4th Dep't 1977). The evidence - the metal conduit- does not support plaintiffs' speculative theory. As in Butler-Francis, where the physical evidence did not support the speculation presented by the plaintiff's expert, the trial court in this case improperly denied D&D summary judgment based on speculation, which under New York law does not create a material question of fact barring summary judgment to a moving defendant. This Court's decision in Clough v. Szymanski, 26 A.D.3d 894, 809 N.Y.S.2d 707 (4th Dep't 2006) illustrates the doctrine that when a defendant meets its burden on a motion for summary judgment, an expert's speculative affidavit does not create a question of fact. There, the defendant submitted deposition testimony establishing its defense that nothing could have been done to avoid the automobile accident at issue. In opposition to the defendant's motion for - 19- summary judgment, the plaintiff submitted an expert affidavit opining that the defendant was negligent because it was driving too fast and that the point of impact was in the middle of the road. This Court noted that "the expert offered no evidentiary foundation for those opinions, and the evidence in the record before us indicates otherwise." 23 A.D.3d at 896. Because "[m]ere speculation, including that set forth in an expert affidavit, is insufficient to raise an issue of fact," this Court reversed the trial court and granted the defendants' motion for summary judgment. Id. Here, as in Clough, the actual evidence before the Court does not support plaintiffs' claim that the pole replacement procedure exerted pressure that broke the metal conduit sweep. On actually examining the metal conduit at issue after it was unearthed, Professor Devgun found no sign of an overstress failure on the metal conduit. (R. 243, 247). Had D&D's work separated the metal conduit sweep from the PVC conduit, there would have been signs of an overstress failure. This means that plaintiffs' theory that the conduit failed because D&D did not support the portion of the conduit that was above the ground itself is unsupported - or, as the Court put it in Clough - "the evidence in the record before us indicates otherwise." 23 A.D.3d at 896. Plaintiffs' speculation that the pole replacement caused the failure of the conduit is a convenient theory that utterly is refuted by the physical evidence. "Although summary judgment is granted infrequently in negligence actions, it should be granted where there is no merit to the cause of action, i.e. , where a plaintiff has failed to establish a genuine issue of fact with respect to defendant's negligence as a proximate cause of the accident." Lomnitz v. Woodbury, 81 A.D.2d 828, 829, 438 N.Y.S.2d 825, 827 (2d Dep't 1981). -20- D&D met its burden in its motions for summary judgment by submitting evidence that its negligence did not cause plaintiffs' damages. Corrosion, not D&D's alleged negligence, was the proximate cause of plaintiffs' damages. Plaintiffs' speculation that D&D's pole replacement procedure broke the conduit is a theory disproved by the physical evidence. The trial court failed to appreciate that merely because plaintiffs offered speculation regarding an alternative cause for the conduit failure, this speculation does not create an issue of fact requiring a trial of this matter. Corrosion as the proximate cause of plaintiffs' damages is evident with a glance at the metal conduit sweep that failed, and is confirmed and explained by Professor Devgun's affidavit. Because D&D's alleged negligence was not the proximate cause of the alleged loss, D&D is not liable for plaintiffs' damages. D&D should be granted summary judgment. POINT II D&D WAS NOT NEGLIGENT, AND PLAINTIFFS' DAMAGES WERE NOT REASONABLY FORESEEABLE AT THE TIME OF THE UTILITY POLE REPLACEMENT. For "any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause ofthe damages suffered by the injured party." Becker v. Schwartz, 46 N.Y.2d 401,410, 413 N.Y.S.2d 895, 899 (1978) (citation omitted). "The existence and scope of an alleged tortfeasor' s duty is a legal question to be determined by the court." Dance Magic, Inc. v. Pike Realty, Inc., 85 A.D.3d 1083, 1088, 926 N.Y.S.2d 588, 593 (2d Dep' t 2011). "Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants ' conduct." Danielenko v. Kinney Rent A Car, Inc., - 21 - 57 N .Y.2d 198,204,455 N.Y.S.2d 555, 557 (1982). "Whether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen at the moment the defendant engaged in the activity which later proves harmful." !d. Accordingly, "if defendant' s conduct was reasonable in light of what could have been anticipated, there is no breach of duty, no negligence and no liability." Gordon v. New York, 70 N.Y.2d 839, 841, 523 N.Y.S.2d 445, 446 (1987). Here, in addition to the fact that the physical evidence confirms plaintiffs' damages were not proximately caused by D&D' s alleged negligence, D&D should have been granted summary judgment as a matter of law because the undisputed facts of this case demonstrate that the damages plaintiffs allege were not reasonably foreseeable at the time of the utility pole replacement. The portion of the conduit sweep/elbow that was visible during the utility pole replacement appeared to be in good condition and there was no outward sign of any problem with the conduit. (R. 168, 180, 187-188, 243). Consequently, the pole-replacement procedure did not require that D&D support the conduit or the secondary electrical service lines that ran through the conduit. (R. 138, 143, 165, 175). The conduit was buried in and supported by the earth. (R. 143, 172). During a routine utility pole replacement consistent with these facts, there is no reason to provide additional support for the conduit. In opposition to D&D' s motions for summary judgment, plaintiffs failed to present any evidence that D&D should have foreseen their injury at the time it replaced the utility pole. The closest plaintiffs' opposition to D&D' s motion came to claiming that the damage was foreseeable was speculation by Keith Allen that " [i]t's very possible that if it wasn't supported, it could crack even a new pipe." (R. 887). Of course, as noted above, there was no -22- expert foundation for this speculative opinion based on "common sense" by an electrician that failed to recite any education, experience, or training in utility pole replacements. (R. 898). Mr. Allen's claim not only lacks any foundation, it is not credible, as D&D' s witnesses testified that they had experience replacing hundreds of utility poles and that laying the cables over in the manner that Mr. Allen claims would "crack even a new pipe" is a typical procedure. (R. 138, 143, 165, 175). Even accepting plaintiffs' speculative and baseless claim that their damages could have been avoided ifD&D had supported the conduit during the utility pole replacement, plaintiffs have not alleged that D&D violated a duty of care that it owed to them when it did not support the conduit. It was not reasonably foreseeable that the conduit at issue would be so corroded and fragile that it was riddled with holes. D&D' s workers had extensive experience with utility pole replacements, and with respect to the conduit at issue, they encountered nothing out of the ordinary that would cause them to be concerned. (R. 168, 180, 187 -188). The conduit appeared to be structurally sound. (R. 57, 168, 180, 187-188, 243). A structurally sound conduit does not break if it is not supported during a utility pole replacement. (R. 143). Therefore, it was not reasonably foreseeable that the conduit at issue- which appeared sound- would break during the utility pole replacement if not supported. D&D' s conduct was reasonable in light of what could have been anticipated, so there was no breach of a duty to plaintiffs, no negligence, and there can be no liability. D&D did not breach a duty to plaintiffs and was not negligent because its conduct was reasonable in light of what could have been anticipated. D&D should be granted summary - 23 - judgment as a matter of law, because plaintiffs cannot prove the elements of their cause of action for negligence. CONCLUSION The trial court erred when it denied D&D's motions for summary judgment because plaintiffs' speculation did not create an issue of fact requiring the trial ofthis matter. Plaintiffs' damages also were not foreseeable at the time of the utility pole replacement, because D&D could not have known of the corroded condition of the conduit. As set forth above, D&D demonstrated its entitlement to summary judgment as a matter oflaw, and this Court should reverse the trial court's order and issue an order granting summary judgment dismissing plaintiffs' actions against D&D. Dated: June 29, 2016 Buffalo, New York RUPP BAASE PFALZGRAF CUNNINGHAM LLC Attorneys for Defendant/ Appellant, D&D Power, Inc. By~//~ R. Anthony Rupp III, Esq. Sean W. Costello, Esq. 1600 Liberty Building Buffalo, New York 14202 (716) 854-3400 - 24-