Andino v NSPD Assoc., LLC

Andino v NSPD Assoc., LLC 2011 NY Slip Op 07684 Decided on November 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 1, 2011
Gonzalez, P.J., Tom, Sweeny, Renwick, JJ.
5916 17346/05 13336/07

[*1]Daniel Andino, Index. Plaintiff,

v

NSPD Associates, LLC, et al., Defendants, [And Another Action] _ _ _ _ _ Consolidated Edison Company of New York, Inc., Third-Party Plaintiff-Respondent, Step-Mar Contracting Corp., Third-Party Defendant-Appellant.




Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, New
York (Joseph C. Bellard of counsel), for appellant.
Richard W. Babinecz, New York (Kaming Lau of counsel), for
respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about October 29, 2010, which, in this personal injury action arising from a trip and fall on a public sidewalk, to the extent appealed from, denied third-party defendant Step-Mar's cross motion for summary judgment dismissing Consolidated Edison's third-party complaint against it, unanimously affirmed, without costs.

Step-Mar made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that it did not create the alleged dangerous condition on the subject sidewalk (see Fernandez v 707, Inc., 85 AD3d 539, 540-541 [2011]). In opposition, Con Edison raised an issue of fact as to whether Step-Mar properly performed its contractual obligation to maintain the work site, which included the subject sidewalk (cf. id. at 541). The contract does not state, and Step-Mar's supervisor did not testify at his deposition, that Step-Mar's obligation is limited to safeguarding its own work, materials, or equipment.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2011

CLERK