Ronald J. Papa et al.,, Appellants,v.Associated Indemnity Corporation et al., Respondents.BriefN.Y.Jun 20, 2017R U P p 1600 Liberty Building, 424 Main Street, Buffalo, NY 14202 B A AS E P 716.854.3400 4 www.ruppbaose.com P FA L Z G R A F SEAN W. COSTELLO C U N N I N G H A M LLC firstname.lastname@example.org AT T O R N E Y S May 3, 2017 VIA FEDEX OVERNIGHT State of New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Dear Honorable Court: Re: Papa V. Associated Indemnity Court of Appeals No.: APL—2017-0004O Our File No.: 00249024 1. D&D’s Position Regarding the Question of Insurance Coveragg This law firm represents defendant/respondent D&D Power, Inc. (“D&D”), in connection with the above-referenced matter. The February 10, 2017 Memorandum and Order of the Appellate Division, Fourth Department unanimously affirmed the portions of the Order and Judgment of the Hon. Diane Y. Devlin, J.S.C., entered on February 23, 2016 that denied D&D’s motion for summary judgment in the underlying matter. It is our understanding that this Court does not hear an appeal from such a non-final determination of the claims against D&D, and that D&D’s status as a respondent in this matter is merely nominal. D&D takes no position with respect to the question of insurance coverage that is the subject of appellants’ April 13, 2017 submission. 2. The Appellate Division Should be Reversed with Respect to D&D’s Appeal To the extent that this Court is reviewing all of the parties’ briefs, D&D respectfully requests that if it deems such relief appropriate, the Court reverse the Appellate Division with respect to its decision on D&D’s appeal. D&D supported its underlying motion for summary judgment with the unrebutted affidavit of an expert Innovation in Practice Rochester 300 Powers Building, 16 West Main Street, Rochester, NY 14614 4 P 585.381.3400 Lockport 172 East Avenue, Lockport, NY 14094 < P 716.438.0488 Jamestown 111 W 2nd Street,Suife 1100, Jamestown, NY 14701 4 P 716.664.2967 RUPP BAASE PFALZGRAF CUNNINGHAM LLC Rule 500.11 Submission by Defendant/Respondent D&D Power, Inc. May 3, 2017 Page 2 metallurgist, who offered the expert opinion that the conduit at issue failed due to corrosion. (R. 228—249). This necessarily means the conduit did not fail due to mechanical forces during the underlying utility pole replacement. As the crux of plaintiffs’ claim for negligence against D&D is that it broke the conduit through mechanical forces during that utility pole replacement, plaintiffs’ unsupported and wholly speculative theory regarding causation is insufficient as a matter of law to support a finding that D&D was negligent. (R. 74, 301). The Appellate Division improperly concluded that the expert metallurgist had given an opinion on mechanical forces, and should be reversed. Further, contrary to the conclusion of the Appellate Division, even if D&D’s work had caused further damage to the corroded conduit at issue, which already was in a state of failure, plaintiffs have not pointed to any evidence that their damages were foreseeable. The undisputed evidence established that it was not foreseeable that the conduit, which appeared from the surface to be sound, was corroded through underground at its point of failure, and the standard utility pole replacement procedure that D&D used in this case does not damage sound conduit sweeps. (R. 138, 143, 165, 168, 175, 180, 187-188, 243). The Appellate Division erred when it decided that D&D was not entitled to summary judgment on the ground that the damage to the property was unforeseeable as a matter of law, and should be reversed. 3. Status of Related Litigation D&D agrees with the statement regarding the status of related litigation at page six of appellants’ April 13, 2017 submission. 4. Corporate Disclosure Statement D&D has no parent, subsidiary, or affiliate entities. 5. Conclusion D&D recognizes that this Court could determine that it cannot review the Appellate Division’s denial of D&D’s appeal on jurisdictional grounds. However, as RUPP BAASE PFALZGRAF CUNNINGHAM LLc Rule 500.11 Submission by Defendant/Respondent D&D Power, Inc. May 3 , 2017 Page 3 the Court nonetheless is reviewing all of the parties’ briefs in connection with this matter, D&D submits that the Appellate Division manifestly erred when it denied D&D’s appeal from the trial court’s order that denied D&D’s motion for summary judgment. The unrebutted expert opinion established that corrosion, not D&D’s allegedly negligent work, caused plaintiff s damages. Plaintiffs’ damages also were not foreseeable at the time D&D performed its work, because D&D could not have known of the corroded condition of the conduit. D&D respectfully requests that the Appellate Division’s February 10, 2017 Memorandum and Order be reversed to the extent necessary to grant D&D’s motion for summary judgment dismissing plaintiffs’ complaint against D&D in its entirety. Respectfillly submitted, Sean W. Costello WORD COUNT CERTIFICATION I hereby certify that the total word count for the text of the body of the above submission is 574 words, exclusive of the status of related litigation and corporate disclosure statement. This word count was calculated by the word-processing system used to prepare the submission. gmfl' Sean W. Costello, Esq.