Yousafzai v City of New York

[*1] Yousafzai v City of New York 2006 NY Slip Op 52492(U) [14 Misc 3d 127(A)] Decided on December 13, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1572 Q C.

Narcisa Yousafzai, Respondent,

against

City of New York, Consolidated Edison Company of New York, Inc., Defendants, -and- Keyspan Energy, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Valerie Brathwaite Nelson, J.), entered December 28, 2004. The order, insofar as appealed from, denied a motion by defendant Keyspan Energy for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.Order, insofar as appealed from, reversed without costs and motion by defendant Keyspan Energy for summary judgment dismissing the complaint and all cross claims insofar as asserted against it granted.

In this action to recover damages for personal injuries sustained when plaintiff tripped and fell due to a defect in the roadway, defendant Keyspan Energy (Keyspan) appeals from the denial of its motion for summary judgment. Keyspan demonstrated its prima facie entitlement to summary judgment by the submission of transcripts of the examinations before trial and an affidavit establishing both that it had no facilities at or near the site of the accident and that it did not perform any work at said site, but rather across the street therefrom (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition, plaintiff did not offer any evidence that Keyspan performed work at the location of the hole/depression or that it otherwise caused it to form. Nor did plaintiff present any evidence that Keyspan had facilities at or near the defect. Rather, plaintiff relied upon an affirmation from her counsel who declared, based upon his review of photographs authenticated [*2]by plaintiff during her EBT, that "[t]he cause of the fall was a roadway defect, apparently created (by the looks of the photographs) by work done on the roadway." In response to Keyspan's proof that while the defect which caused plaintiff's fall was located five feet from the east curb on 75th Street and its work was located eight feet east of the west curb on 75th Street, plaintiff's counsel noted that, based upon the photographs, the width of the hole/depression appeared to be two feet. He then asserted that, based upon "the width of an average city street," the location of Keyspan's work "could easily coincide" with the defect which caused plaintiff's fall. Plaintiff's counsel also believed that there was an issue of fact because it was too coincidental that Keyspan's excavations were two feet wide and the defect in question also "just happens to be approximately two feet wide." In addition, plaintiff's counsel further relied upon the fact that Keyspan obtained seven excavation permits between January 1994 and October 1999 with respect to 75th Street between 37th Avenue and 37th Road. Counsel asserted that since five of the permits indicated that they were for "major installation work," "Keyspan's continued presence on this block without specificity as to the address leaves open the question as to whether any of Keyspan's major installations' or repairs caused the defect in question."

Contrary to plaintiff's contention, the affirmation by plaintiff's counsel was insufficient to demonstrate the existence of a triable issue of fact. Counsel's estimate as to the size of the defect in the roadway, based upon his review of the photographs, was without probative value as was his conclusion that the paving work performed by Keyspan "could easily coincide" with the location of the defect based upon "the width of an average city street" (see Acheson v Shepard, 27 AD3d 596 [2006]; Cordova v Vinueza, 20 AD3d 445 [2005]; Skerret v Nixon, 290 AD2d 500 [2002]; Lorber v Prospect Park Nursing Home, 289 AD2d 303, 303-304 [2001]; Lopez v Insurance Co. of N. Am., 289 AD2d 205 [2001]; Campo-Joseph v King, 277 AD2d 193 [2000]; see also Verdes v Brooklyn Union Gas Co., 253 AD2d 552 [1998]). In any event, in a reply affidavit, Keyspan demonstrated that the affirmation of plaintiff's counsel was of no probative value because a Keyspan employee affirmatively declared that, in September 2004, he measured the width of 75th Street and that the street was 42 feet wide at the location of the roadway defect, thereby placing approximately 25 feet between the area where Keyspan worked and the site of the subject defect (cf. Cendales v City of New York, 25 AD3d 579 [2006]). In light of the foregoing, Keyspan's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it should have been granted (see Zuckerman, 49 NY2d 557, supra; Holy Name of Jesus R.C. Church v New York City Tr. Auth., 28 AD3d 520 [2006]; Schwartz v City of New York, 23 AD3d 368 [2005]).
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 13, 2006