Opinion
Index No. 712976/2018 Motion Seq. Nos. 004 & 005
09-24-2024
BYRUE RICHARDS, Plaintiff, v. CONSOLIDATED EDISON, INC., CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., VERIZON NEW YORK INC., MASPETH SUPPLY CO. LLC, and CARLO LIZZA & SONS PAVING, INC., Defendants.
Unpublished Opinion
MOTION DATE 06/06/2024
PRESENT: HON. PHILLIP HOM, Justice
DECISION + ORDER ON MOTION
PHILLIP HOM, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 92, 93, 94, 95, 96, 97, 101, 103, 104, 105, 109, 110, 111 were read on this motion to/for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 98, 99, 100, 102, 106, 107, 108, 112, 113 were read on this motion to/for SUMMARY JUDGMENT.
Upon the foregoing papers, it is ordered that the motion by defendant Verizon New York Inc. ("Verizon") (Seq 004), and the motion by defendants Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. (collectively "Con Ed") (Seq 005) are determined as follows:
This is an action to recover damages for personal injuries that plaintiff Byrue Richards ("plaintiff') allegedly sustained on August 26, 2015, in a trip-and-fall incident in the roadway, at or near the premises located at 87-74 Parsons Boulevard (the "Premises"), in the County of Queens. Plaintiff has alleged that defendants Verizon, Maspeth Supply Co. LLC ("Maspeth"), Carlo Lizza &Sons Paving, Inc. ("Carlo Lizza"), and Con Ed owned, maintained and/or negligently performed certain work on the roadway at or near the subject premises, and that these defendants had notice of the dangerous condition which was involved in plaintiffs incident.
Now, Verizon now moves for summary judgment dismissing the complaint and all crossclaims. Con Ed similarly moves for summary judgment dismissing the complaint, any crosscomplaints, any crossclaims, and any other claims.
"'To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented'" (Matter cf New York City Asbestos Litig., 33 N.Y.3d20,25 [2019], quoting Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968]). '"Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable'" (id., at 23, quoting Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 315 [2004]). The evidence must be viewed in a light most favorable to the non-moving party (see Rivera v Town of Wappinger, 164 A.D.3d 932, 935 [2d Dept 2018]: Boulos v Lerner-Harrington, 124 A.D.3d 709, 709 [2d Dept 2015]). Only if a prima facie demonstration has been made, does the burden shift to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (see Gityfrida v Citibank Corp., 100N.Y.2d72, 81 [2003]; Roos v King Constr., 179 A.D.3d 857 [2d Dept 2020]). Thus, where the movant does not satisfy this initial burden, summary judgment is denied regardless of the sufficiency of the opposing papers (see Roos, 179 A.D.3d at 859; Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014]).
As an initial matter, the court will address plaintiffs contention in opposition to Verizon's motion, that summary judgment is premature.
"Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent of the motion ... [a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence'" (Sloan v 216 Beeford Kings Corp., 208 A.D.3d 1192, 1193 [2d Dept 2022] [internal quotation marks and citation omitted]; see also CPLR 3212 [f]; Haidhaqi v Metro. Transp. Auth., 153 A.D.3d 1328, 1329 [2d Dept 2017])." 'The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion'" (Castro v Rodriguez, 176 A.D.3d 1031, 1033 [2d Dept 2019], quoting Lcpez v WS Distrib., Inc., 34 A.D.3d 759, 760 [2d Dept 2019]; see also Jobson v SM Livery, Inc., 175 A.D.3d 1510, 1512 [2d Dept 2019]). Thus, plaintiff fails to make a sufficient evidentiary showing that further disclosure is necessary. The Court will continue on to consider the merits of Verizon's motion, as well as the motion filed by Con Ed.
A cause of action sounding in negligence requires "the existence of a duty that the defendant owed to the plaintiff, a breach of that duty, and that the breach of that duty was a proximate cause of the plaintiffs injuries" (Santoro v Poughkeepsie Crossings, LLC, 180 A.D.3d 12, 18 [2d Dept 2019]). '"As a general rule, liability for a dangerous or defective condition on property is predicated upon ownership, occupancy, control or special use of the property'" (Paden v Brooklyn Museum cf Arts, 226 A.D.3d 920 [2d Dept 2024], quoting Torres v City of New York, 153 A.D.3d 647, 648 [2d Dept 2017]). "A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street" (Morris v City of New York, 143 A.D.3d 681, 682 [2d Dept 2016]). Where a defendant moves for summary judgment, it has the burden of establishing that it "did not perform any work on the portion of the roadway where the accident occurred or that it did not create the allegedly defective condition that caused the plaintiffs injuries" (id. at 682; see also Igneri v Triumph Constr. Corp., 166 A.D.3d 737, 739 [2d Dept 2018]).
In support of its motion, Verizon argued, among other things, that it did not owe a duty to plaintiff, and that it did not create the condition that caused the alleged incident. The record contains, among other things, the affidavit of James Julich ("Julich"), Area Manager - Network
Operations for Verizon. Julich attests that two permits were issued to Verizon to perform work on September 20, 2013, for the purpose of building a conduit on Parsons Boulevard, and that, after an investigation, he concluded that Verizon did not perform any work pursuant to the two permits. The permits then expired on October 22, 2013. Julich further states that Verizon did not own any facilities, performed no work, and had no connection or involvement with the subject location of plaintiffs incident, for a period of two years prior to and including the date of the incident.
In opposition, plaintiff submits a FOIL response from the New York City Department of Transportation. However, plaintiff fails to point to sufficient evidence to raise a triable issue of fact. No other party has opposed Verizon's motion. Therefore, based upon the above, Verizon is entitled to the dismissal of the complaint and all crossclaims.
Next, the court will address Con Ed's motion. In support of their motion, the Con Ed argues, among other things, that they did not own, repair, or maintain the roadway/bus pad where the plaintiffs accident allegedly occurred, that they did not create the alleged condition, and that the limited work performed by the Con Ed defendants in the same street segment was nowhere near the location of plaintiffs alleged incident.
In support of their motion, the Con Ed relies upon, among other things, the examination before trial ("EBT") testimony of Jefferson Wu ("Wu"), a specialist for Con Ed. Wu testified that he performed a search of Con Ed's records. The search located two corrective action requests relating to work performed by Con Ed at 87-60 and 87-78 Parsons Boulevard. Wu testified that he also located two opening tickets: PS 824834, for work in the parking lane at 87-78 Parsons Boulevard, and the second opening ticket, PS 824833, for work performed in the traffic lane at 87-60 Parsons Boulevard. Wu further testified that the Con Ed defendants did not perform any work in front of 87-74 Parsons Boulevard, the location of the alleged incident. The only work that Con Ed performed and completed in the general area was on a parking lane manhole in 2013, located at 87-78 Parsons Boulevard.
Based upon this evidence, Con Ed sufficiently demonstrates that they did not create the alleged condition involved in plaintiffs incident. Although, in opposition, plaintiff relies upon various images from Google Maps, which in their current form, bearing the date the material was created, are admissible (CPLR 4532-b), the photographs are, nevertheless, unclear as to the condition of the roadway. To the extent that plaintiff argues that the mis-leveled roadway bus pads may have been caused by work performed by Con Ed nearby, without admissible evidence to support this contention, it is speculative. Plaintiff does not point to any other admissible evidence to raise a triable issue of fact.
No other party has opposed the Con Ed defendants' motion. Therefore, based upon the above, the Con Ed is entitled to the dismissal of the complaint, cross-complaints, and crossclaims.
The parties' remaining contentions have been considered and found to be unavailing.
In accordance with the foregoing, it is hereby ORDERED that Verizon New York Inc.'s motion (Seq 004) for summary judgment, dismissing the complaint and all crossclaims, is granted; and it is further
ORDERED that Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc.'s motion (Seq 005) for summary judgment dismissing the complaint and crosscomplaints, crossclaims and any other claims of any nature is granted; and it is further
ORDERED that plaintiffs complaint is dismissed as against Verizon New York Inc., Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc.; and it is further
ORDERED that any requested relief and/or remaining contentions not expressly addressed herein have nonetheless been considered and are hereby expressly rejected; and it is further
ORDERED that Verizon New York Inc. shall serve, via NYSCEF, a copy of this Order with Notice of Entry upon all parties (Seq 004), within seven (7) days from the date of entry; and it is further
ORDERED that Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. shall serve, via NYSCEF, a copy of this Order with Notice of Entry upon all parties (Seq 005), within seven (7) days from the date of entry.
This constitutes the Decision and Order of this Court.