Opinion
Index No. 106718/11 Motion seq. no.: 001
10-10-2012
THERESA a/k/a TESS STEINKOLK, Plaintiff, v. THE CITY OF NEW YORK, CONSOLIDATED EDISON and EMPIRE CITY SUBWAY, Defendants.
For plaintiff: Mark Halberstam, Esq For ECS: Matthew Matera, Esq. Conway, Farrell et al.
DECISION AND ORDER
BARBARA JAFFE, JSC:
For plaintiff:
Mark Halberstam, Esq
For ECS:
Matthew Matera, Esq.
Conway, Farrell et al.
By notice of motion dated March 9, 2012, defendant Empire City Subway Company (ECS) moves pursuant to CPLR 3212 for an order summarily dismissing the complaint and any cross claims against it or, in the alternative, compelling plaintiff to respond to discovery. Plaintiff opposes.
Plaintiff alleges that on May 8, 2010, she tripped and fell in a pothole located approximately 18 inches east of the northwest corner of the intersection of 30th Street and 9th Avenue in Manhattan. (Affirmation of Matthew Matera, Esq., dated Mar. 9, 2012 [Matera Aff.], Exh. C).
ECS denies having performed any work at the accident location before plaintiff's accident, and asserts that while plaintiff provided a permit issued it before plaintiff's accident, its records show that it performed work after the accident and in a different part of the intersection.
A contractor may be held liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk. (Cino v City of New York, 49 AD3d 796 [2d Dept 2008]). Here, ECS has offered admissible evidence demonstrating that it performed no work at the location of plaintiff's accident before the accident, thus establishing, prima facie, that it did not create the defect at issue. (See Gueli v City of New York, 92 AD3d 840 [2d Dept 2012] [contractor submitted affidavit from employee stating that it had no records showing work performed at accident location before accident, and other documents showed work was performed near location after accident]; Amarosa v City of New York, 51 AD3d 596 [1st Dept 2008] [contractor met burden by submitting affidavit from manager stating that records showed no work at location, and even if other contractor performed work at location, no evidence that its work was proximate cause of pothole 400 feet away from its work]; Flores v City of New York, 29 AD3d 356 [1st Dept 2006] [ECS demonstrated it did not perform work where plaintiff allegedly fell as its records showed it performed work on different corner of crosswalk than where plaintiff fell]; Robinson v City of New York, 18 AD3d 255 [1st Dept 2005] [although contractors performed work on street, no evidence that work was performed at location of plaintiff’s fall]; see also Arias v Skyline Windows, Inc., 89 AD3d 460 [1st Dept 2011] [affidavit indicating search of business records had demonstrated negative findings admissible and can substantiate movant's summary judgment burden]).
In opposition, plaintiff submits no proof showing that a triable issue of fact exists as to whether ECS performed work at the location of her accident. (See Siegel v City of New York, 86 AD3d 452 [1st Dept 2011] [rejecting plaintiff's argument that proximity of ECS conduit to alleged defect raised triable issue as to whether ECS' work caused defect]; Minier v City of New York, 85 AD3d 1134 [2d Dept 2011] [plaintiff's only evidence was permit issued to contractor which did not encompass area where plaintiff fell]; Elkman v Consol. Edison of New York, 71 AD3d 817 [2d Dept 2010] [plaintiff failed to raise triable issue as to whether defendants performed work in area of sidewalk where accident occurred]; Flores, 29 AD3d at 356 ["(a)t best, plaintiff demonstrated that ECS was present at the site some eight months before plaintiff's fall, which is insufficient to raise a triable issue of fact as to whether ECS worked in the crosswalk where plaintiff fell"]).
Plaintiff's assertion that further discovery may lead to relevant evidence is speculative and without evidentiary basis. (CPLR 3212[f]; see Flores v City of New York, 66 AD3d 599 [1st Dept 2009] ["the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion"]; Rubina v City of New York, 51 AD3d 761 [2d Dept 2008] [no evidentiary basis showing that further discovery may lead to relevant evidence concerning whether contractor created defect]; Arrucci v City of New York, 45 AD3d 617 [2d Dept 2007] [plaintiffs failed to establish what additional facts might be disclosed which would demonstrate that issue of fact existed as to whether contractor did work on roadway]).
Accordingly, it is hereby
ORDERED, that defendant Empire City Subway's motion for summary judgment is granted, and the complaint and any cross claims are dismissed against defendant Empire City Subway with costs and disbursements to defendant as taxed by the clerk of the court upon the submission of an appropriate bill of costs, and the clerk of the court is directed to enter judgment accordingly; it is further
ORDERED, that the remainder of the action shall continue, and the DCM clerk is directed to schedule a preliminary conference in this matter and notify the parties accordingly.
ENTER:
________
Barbar Jaffe, JSC
DATED: October 4, 2012
New York, New York