Boone v City of New York

Boone v City of New York 2006 NY Slip Op 07306 [33 AD3d 641] October 10, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Evangeline Maria Boone et al., Plaintiffs,
v
City of New York, Defendant and Third-Party Plaintiff-Respondent. Keyspan Energy Delivery N.Y.C., Sued Herein as Brooklyn Union Gas Company, Third-Party Defendant-Appellant.

—[*1]In an action to recover damages for personal injuries, etc., the third-party defendant appeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated February 24, 2006, which denied its motion for summary judgment dismissing the third-party complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the third-party complaint is granted.

The third-party defendant met its burden of establishing, prima facie, that it did not create the allegedly dangerous condition upon which the plaintiff Evangeline Maria Boone tripped and fell, and the third-party plaintiff failed to raise a triable issue of fact in opposition (see Cendales v City of New York, 25 AD3d 579 [2006]; Schwartz v City of New York, 23 AD3d 368 [2005]; Verdes v Brooklyn Union Gas. Co., 253 AD2d 552, 553 [1998]; Curci v City of New York, 240 AD2d 460 [1997]).

Accordingly, the third-party defendant's motion for summary judgment should have been granted.

The third-party plaintiff's contentions regarding the best evidence rule and an [*2]affidavit of the third-party defendant's employee are improperly raised for the first time on appeal, and, in any event, are without merit. Miller, J.P., Goldstein, Mastro and Dillon, JJ., concur.