Levine v City of New York

Levine v City of New York 2012 NY Slip Op 08256 Decided on December 4, 2012 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 December 4, 2012
Saxe, J.P., Friedman, Acosta, Renwick, Freedman, JJ.
8696 101491/06 59048/07 590915/09

[*1]Renee Levine, et al., Plaintiffs-Appellants, The

v

City of New York, et al., Defendants, Consolidated Edison Company of New York, Inc., sued herein as Consolidated Edison, Defendant-Respondent. [And A Third-Party Action] Consolidated Edison Company of New York, Inc., Second Third-Party Plaintiff, Danella Construction Company of NY, Inc., Second Third-Party Defendant-Respondent.




The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of
counsel), for appellants.
Office of Richard W. Babinecz, New York (Stephen T. Brewi of
counsel), for Consolidated Edison Company of New York, Inc.,
respondent.
McElroy Deutsch Mulvaney & Carpenter, LLP, New York
(John P. Cookson of counsel), for Danella Construction
Company of NY, Inc., respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered October 24, 2011, which granted the cross motion of defendant/first and second third-party plaintiff Consolidated Edison Company of New York, Inc. (Con Ed) for summary judgment dismissing the complaint and all cross claims as against it, and granted the motion of second third-party defendant Danella Construction Company of NY, Inc. (Danella) for summary judgment dismissing the second third-party complaint and all cross claims as against it, unanimously affirmed as to the granting of Con Ed's cross motion, and the appeal otherwise dismissed, without costs. [*2]

No appeal lies from that part of the order dismissing the second third-party complaint against Danella. Plaintiffs never asserted a direct claim against Danella, and thus, are not aggrieved by the dismissal of the second third-party action (see CPLR 5511; 11 Essex St. Corp. v Tower Ins. Co. of N.Y., 96 AD3d 699, 699-700 [1st Dept 2012]).

Con Ed established its entitlement to judgment as a matter of law by showing that they did not cause or create the pothole that caused plaintiff Renee Levine's fall and resultant injuries. Con Ed's employee testified that excavation of the area was completed more than two years before the accident, and that he inspected the area at that time and did not find any unsafe conditions or receive any complaints about the work. Moreover, Danella's employee stated that the pothole, identified by plaintiff in photographs, was outside the area that was excavated in 2003 (see Jones v Consolidated Edison Co. of N.Y., Inc., 95 AD3d 659 [1st Dept 2012]; Robinson v City of New York, 18 AD3d 255 [1st Dept 2005]).

In opposition, plaintiffs failed to raise a triable issue of fact. The opinions proffered by their expert were conclusory and speculative (see e.g. Grullon v City of New York, 297 AD2d 261, 263-264 [1st Dept 2002]).

We have considered plaintiffs' remaining contentions and find them unavailing.

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

ENTERED: DECEMBER 4, 2012

CLERK