Frederickson v City of New York

Frederickson v City of New York 2017 NY Slip Op 04563 Decided on June 8, 2017 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 June 8, 2017
Friedman, J.P., Gische, Kapnick, Kahn, Gesmer, JJ.
4214 150859/13

[*1]James Frederickson, Plaintiff-Respondent,

v

The City of New York, et al., Defendants, Verizon New York, Inc., et al., Defendants-Appellants.

Conway, Farrell, Curtin & Kelly, P.C., New York (Darrell John of counsel), for appellants.

Frekhtman & Associates, Brooklyn (Eileen Kaplan of counsel),for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered December 23, 2015, which denied defendants Verizon New York, Inc. and Empire City Subway Company Ltd.'s motion for summary judgment dismissing the complaint and any and all cross claims against them, unanimously modified, on the law, to grant the motion as to Verizon, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of Verizon dismissing the complaint as against it.

The IAS court properly determined in this trip and fall action that issues of fact exist concerning whether an unevenness in the roadway surface caused by the defendants' work in the area caused plaintiff's accident (see e.g. Hutchinson v Sheridan Hill House Corp., 26 NY3d 66 [2015]; Glickman v City of New York, 297 AD2d 220 [1st Dept 2002]). However, Verizon made an unrebutted prima facie showing that it has no potential liability in this matter inasmuch as the plate in question was put in place by its subsidiary, Empire, without the direction or supervision of the parent company. While plaintiff argued in opposition that further discovery was required to determine whether grounds for Verizon's liability might exist, the order should be modified to dismiss the complaint as against Verizon in view of plaintiff's having filed a note of issue before taking Verizon's deposition.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 8, 2017

CLERK