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Great Northern Insurance Co. v. 5K Development, LLC

United States District Court, D. Connecticut

September 4, 2018

GREAT NORTHERN INSURANCE COMPANY, A/S/O JEFFREY S. JACOB AND MICHEL JACOB Plaintiff,
v.
5K DEVELOPMENT, LLC, Defendant and Third Party/Apportionment Plaintiff,
v.
DIFULVIO CONSTRUCTION, LLC, Third Party/Apportionment Defendant.

          RULING ON MOTIONS FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         I. Introduction

         Great Northern Insurance Company (“Great Northern”) brings this suit as subrogee of Jeffrey and Michel Jacob, the owners of a home at 687 Smith Ridge Road in New Canaan, Connecticut that was damaged during a renovation. Great Northern alleges one count of negligence against 5K Development, LLC (“5K Development”), a home renovation company, for the partial collapse of the home's pre-existing foundation during the excavation of the foundation for a new addition. (ECF No. 1.) 5K Development in turn brought an apportionment complaint and third-party claim for indemnification against excavation company DiFulvio Construction, LLC (“DiFulvio”) for its role in the collapse. (ECF No. 56.) 5K Development and DiFulvio now move for summary judgment against Great Northern on the grounds that Great Northern failed to disclose experts necessary to prove its claim. (See ECF No. 52 at 5-7, ECF No. 54-2 at 4-7.) 5K Development also argues that it owed no duty to the Jacobs, because DiFulvio, rather than 5K Development, was responsible for the excavation. (See ECF No. 52 at 8-9.) For the following reasons, 5K Development's motion for summary judgment is hereby GRANTED, and DiFulvio's motion for summary judgment is DENIED as moot.

         II. Preliminary Issues

         As a threshold matter, I may consider only a limited body of facts in deciding the motions for summary judgment, because both Great Northern and DiFulvio have failed to comply with D. Conn. Local Rule 56(a).

         5K Development supported its motion with a Local Rule 56(a)1 Statement of Facts. (ECF No. 53, Defendant's Local Rule 56(a)(1) Statement (“Def.'s L.R. 56(a)1 Stmt.”).) Although Great Northern made a blanket assertion in its opposition brief that “genuine issues of fact exist, ” it did not identify which facts ¶ 5K Development's 56(a)1 Statement it contests or file a Rule 56(a)2 Statement in support of its opposition. (ECF No. 59 at 2.) Accordingly, the material facts set forth in 5K Development's Rule 56(a)1 Statement are deemed admitted to the extent they are adequately supported by the record. See D. Conn. L.R. 56(a)1; Miron v. Town of Stratford, 976 F.Supp.2d 120, 127 (D. Conn. 2013) (“Where a party fails to appropriately deny material facts set forth in the moving party's 56(a)1 statement, and where those facts are supported by evidence in the record, those facts are deemed to be admitted.”).

         Great Northern did, however, append an exhibit to its memorandum of law to support its assertion that factual disputes exist. (See ECF Nos. 59 at 2, 59-2.) While I “may consider other materials in the record” besides the materials specifically cited in the parties' Rule 56(a) statements, Fed.R.Civ.P. 56(c)(3), I choose not to consider this exhibit because Great Northern has not demonstrated its authenticity or otherwise laid a foundation for its admissibility through an affidavit or otherwise.[1] See Parks v. Blanchette, 144 F.Supp.3d 282, 292 (D. Conn. 2015) (“In ruling on a motion for summary judgment, a court need only consider admissible evidence.”) (citing Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).

         DiFulvio did file a Rule 56(a)1 Statement in support of its own motion for summary judgment. However, DiFulvio did not support its Rule 56(a)1 Statement with evidence, but instead cites almost exclusively Great Northern's complaint and 5K Development's apportionment complaint. (ECF No. 54-1 (citing ECF Nos. 1, 33).)[2] Cf. Welch-Rubin v. Sandals Corp., No. 3:03CV481 (MRK), 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (“[A]llegations in a complaint are not evidence.”); see Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014) (“[T]he district court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed.”). Putting aside whether DiFulvio has met its burden as movant, however, 5K Development's third-party and apportionment complaint against DiFulvio is conditioned on whether Great Northern recovers damages on its negligence claim against 5K Development. (ECF No. 56 at ¶¶ 11, 19.) Accordingly, if I grant 5K Development's summary judgment motion, its third- party/apportionment complaint against DiFulvio is moot. See Simmons v. Kaufman 8th Ave. Assocs. of New York, No. 09 CIV 8502 JSR, 2010 WL 4967837, at *3 (S.D.N.Y. Nov. 30, 2010) (“Since [Defendant's] action against the third-party defendants is premised on [defendant] being held liable for plaintiff's injuries, the entire third-party complaint is moot.”); Davis v. Cumberland Farms, Inc., No. 1:10-CV-480 FJS/RFT, 2013 WL 375477, at *8 (N.D.N.Y. Jan. 29, 2013) (“Since the Court has granted [Defendant's] summary judgment motion . . . it further dismisses [Defendant's] third-party complaint as moot.”). Because I grant 5K Development's motion for summary judgment, I need not address DiFulvio's motion and simply deny it as moot.

         III. Factual Background

         In light of the above, the following facts are taken from 5K Development's Local Rule 56(a)1 Statement and the exhibits and are undisputed unless otherwise noted.

         Jeffrey and Michele Jacob owned a home at 687 Smith Ridge Road in New Canaan, Connecticut. (Def.'s L.R. 56(a)1 Stmt. at ¶ 2.) During the summer of 2014, the Jacobs began a renovation project, which included an addition to one side of the home of two floors above grade and a basement below. (Id. at ¶¶ 6-7; Pirrone Aff. at ¶¶ 9, 18.) The Jacobs contracted with Jay Pirrone, 5K Development's sole member, for Pirrone and 5K Development to complete “framing and finishing work” in accordance with the renovation plans, which were prepared by a third-party architecture firm. (Def.'s L.R. 56(a)1 Stmt. at ¶¶ 4, 8; Pirrone Aff. at ¶¶ 9, 11, 18.) 5K Development performs home renovations and remodelings in lower Fairfield County. (Pirrone Aff. at ¶ 4.)[3] In connection with the Jacobs renovation, Pirrone never held out himself or 5K Development as being an excavator contractor or mason, or having engineering capabilities with respect to home remodeling, renovations and construction. (Def.'s L.R. 56(a)1 Stmt. at ¶¶ 16, 17; Pirrone Aff. at ¶¶ 6-8.)

         The Jacobs did not hire or retain 5K Development to oversee, manage or control excavation work for the renovation project. (Def.'s L.R. 56(a)1 Stmt. at ¶ 9; Pirrone Aff. at ¶ 12.) Rather, the Jacobs directly contracted with DiFulvio to perform the excavation work for the project and paid DiFulvio directly. (Def.'s L.R. 56(a)1 Stmt. at ¶ 12; Pirrone Aff. at ¶ 14.) 5K Development and DiFulvio had no contractual relationship in connection with the renovation project. (Def.'s L.R. 56(a)1 Stmt. at ¶ 15; Pirrone Aff. at ¶ 15.) 5K Development also did not pay DiFulvio for any of its work in connection with the project. (Def.'s L.R. 56(a)1 Stmt. at ¶ 14; Pirrone Aff. at ¶ 16.)

         DiFulvio excavated the new basement area for the addition to a depth below the adjacent, pre-existing basement and its foundation. (Def.'s L.R. 56(a)1 Stmt. at ¶ 19; Pirrone Aff. at ¶ 20.) Neither Pirrone nor 5K Development directed or managed DiFulvio's work. (Def.'s L.R. 56(a)1 Stmt. at ¶ 13; Pirrone Aff. at ¶ 17.) During DiFulvio's excavation of the new basement area, the chimney and its foundation on the side of the house being renovated settled and moved. (Def.'s L.R. 56(a)1 Stmt. at ¶ 20; Pirrone Aff. at ¶ 19.)[4] In other words, part of the home's pre-existing foundation collapsed. (Pirrone Aff. at ¶ 19.)

         After Great Northern commenced this suit against 5K Development, the parties agreed in their Rule 26(f) report that the deadline for Great Northern to designate all expert witnesses and provide opposing counsel with those witnesses' reports was April 1, 2017. (Def.'s L.R. 56(a)1 Stmt. at ¶ 22; ECF No. 53, Exhibit 2, Affidavit of Kevin S. Coyne, Esquire (“Coyne Aff.”) at ¶ 4; see also ECF No. 29 (adopting the parties' November 1, 2017 fact discovery deadline).) When 5K Development moved for summary judgment on November 30, 2017, Great ...


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