Opinion
No. 2020-03465 Index No. 15082/09
05-31-2023
Helen Thomas, appellant, v. City of New York, defendant, Consolidated Edison of New York, Inc., respondent.
Kardisch Law Group P.C., New York, NY (Josh H. Kardisch and Trishe L.A. Hayes of counsel), for appellant. Lauren A. Jones, New York, NY (Stephen T. Brewi of counsel), for respondent.
Kardisch Law Group P.C., New York, NY (Josh H. Kardisch and Trishe L.A. Hayes of counsel), for appellant.
Lauren A. Jones, New York, NY (Stephen T. Brewi of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered December 9, 2019. The order, insofar as appealed from, granted that branch of the motion of the defendant Consolidated Edison of New York, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In September 2008, the plaintiff allegedly was injured when she tripped and fell in a crosswalk at a certain intersection in Queens. The plaintiff commenced this action against Consolidated Edison Company of New York, Inc. (hereinafter Con Edison), and the City of New York, alleging, inter alia, that Con Edison performed excavation and repair work at the crosswalk prior to the accident and was negligent in failing to maintain the crosswalk. Con Edison moved, among other things, for summary judgment dismissing the complaint insofar as asserted it. The Supreme Court granted that branch of Con Edison's motion. The plaintiff appeals.
"'The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it'" (Bliss v City of New York, 162 A.D.3d 730, 731, quoting Guzov v Manor Lodge Holding Corp., 13 A.D.3d 482, 483). "Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality" (Thompson v Nassau County, 200 A.D.3d 823, 825). However, "[a] contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk" (Lewis v City of New York, 82 A.D.3d 1054, 1055).
Con Edison established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that it did not perform work at the location of the alleged defect or otherwise create the defect that caused the plaintiff to fall (see Chtchannikova v City of New York, 174 A.D.3d 572, 573; Igneri v Triumph Constr. Corp., 166 A.D.3d 737, 739). In opposition, the plaintiff failed to raise a triable issue of fact that Con Edison created the alleged defect (see Burton v City of New York, 153 A.D.3d 487, 488; Ottenstein v City of New York, 83 A.D.3d 1024, 1025; Garcia v City of New York, 53 A.D.3d 644).
Accordingly, the Supreme Court properly granted that branch of Con Edison's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
BRATHWAITE NELSON, J.P., MALTESE, WOOTEN and WAN, JJ., concur.