Opinion
Index No. 157521/2017 Motion Seq. No. 004
04-06-2023
JAMES THOMAS, Plaintiff, v. THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., EMPIRE CITY SUBWAY COMPANY (LIMITED) D/B/A EMPIRE CITY SUBWAY CORP., WELSBACH ELECTRIC CORP., CITYBRIDGE, LLC, EXTENENT SYSTEMS, INC., Defendants.
Unpublished Opinion
MOTION DATE 10/04/2022
DECISION+ ORDER ON MOTION
HON. JUDY H. KIM PART, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 004) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 94, 95, 96, 97, 98 were read on this motion for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion by defendant ExteNet Systems, Inc. ("ExteNet") for summary judgment dismissing the complaint and all crossclaims against it is denied for the reasons set forth below.
Plaintiff commenced this negligence action seeking damages for injuries allegedly sustained on May 24, 2017, when he tripped and fell in a pothole in the middle of the intersection of West 57th Street and Eighth Avenue in Manhattan (NYSCEF Doc. Nos. 73 [Compl. at][¶9, 11-13], 74 [GML §50-h Tr. at pp. 8, 10] and 75 [GML §50-h photos). ExteNet now moves for summary judgment on the grounds that it did not perform work at the location of plaintiff s fall. In support of its motion, ExteNet submits the affidavit of Brian Kirk, its Vice President and Deputy General Counsel, in which he attests that:
Plaintiff notes that the Kirk Affidavit is executed out of this state without a certificate of conformity and argues that, as a result of this deficiency, it may not be considered by the Court. However, as ExteNet notes, "[t]he absence of such a certification is a mere irregularity, and not a fatal defect" (Sebrow v Sebrow, 205 A.D.3d 563, 564 [1st Dept 2022] [internal citations omitted]) and this irregularity was, in any event, cured by ExteNet in its reply papers (See NYSCEF Doc. No. 97).
Upon being notified of this lawsuit, I conducted a search of documents pertaining to work performed by ExteNet and/or its contractor(s) at the intersection of 8th Avenue and West 57th Street in the City, County, and State of New York (the "intersection").
ExteNet has undertaken two projects near the intersection.
The first project involved the digging of a trench towards the northeast corner of the intersection. The work involving this trench was completed on July 21, 2016. Annexed hereto as Exhibit A is a copy of the permit drawing regarding this work.
The second project involved the digging of a trench on the southwest corner of the intersection. The work involving this trench was completed on October 26, 2016. Annexed hereto as Exhibit B is a copy of the permit drawing regarding this work.
[N]one of ExteNet's work during either the first project or the second project included any work, whatsoever, in the middle of the intersection, including that area where Plaintiff testified his accident occurred.
Neither ExteNet nor any of its contractors were performing work at the intersection in May 2017, including on May 24, 2017.(NYSCEF Doc. No. 70 [Kirk Aff. at K¶2-5, 7-8)
In opposition, plaintiff argue that this motion is premature because ExteNet has not responded to its discovery demands and because no depositions have been held. Plaintiff further argues that triable issues of fact remain, as plaintiff performed a public records search that uncovered relevant permits issued to ExteNet that ExteNet did not produce in discovery.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]). "A defendant who moves for summary judgment in a trip and fall action has the initial burden of making a prima facie demonstration that it did not create the hazardous condition" (Briggs v Pick Quick Foods, Inc., 103 A.D.3d 526, 526 [1st Dept 20131 quoting Smith v Costco Wholesale Corp.. 50 A.D.3d 499, 500 [1st Dept 2008]).
In light of the foregoing, ExteNet's motion is denied. Plaintiffs submission of permits related to ExteNet's work in and around the subject intersection which were not included in ExteNet's documentary production establishes that questions of fact remain as to the scope of ExteNet's work at the subject intersection, leaving open the possibility that it may have performed work at the site of plaintiffs fall (See e.g., Sabino v The City of New York. 2018 NY Slip Op 32359[U], 10-11 [Sup Ct, NY County 20181; see also Curry v The City of New York, 2022 NY Slip Op 33477[U], 4-5 [Sup Ct, NY County 2022]).
Accordingly, it is
ORDERED that ExteNet Systems, Inc.'s motion for summary judgment is denied without prejudice and with leave to renew at the conclusion of discovery; and it is further
ORDERED that within fifteen days from the date of this decision and order, counsel for plaintiff shall serve a copy of this order with notice of entry on the Clerk of the Court (60 Centre St., Room 141B) and the Clerk of the General Clerk's Office (60 Centre St., Rm. 119) who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.