United States District Court, D. Connecticut
GREAT NORTHERN INSURANCE COMPANY, A/S/O JEFFREY S. JACOB AND MICHEL JACOB Plaintiff,
5K DEVELOPMENT, LLC, Defendant and Third Party/Apportionment Plaintiff,
DIFULVIO CONSTRUCTION, LLC, Third Party/Apportionment Defendant.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
MICHAEL P. SHEA, U.S.D.J.
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.
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).
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.”).
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. 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)).
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).) 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.
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.
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 ¶
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.)
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.)
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.) In other words, part of the
home's pre-existing foundation collapsed. (Pirrone Aff.
at ¶ 19.)
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 ...