Lynch v City of New York
Annotate this CaseDecided on July 19, 2006
Supreme Court, New York County
Ryan J. Lynch, Plaintiff,
against
The City of New York, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., EMPIRE CITY SUBWAY, METROMEDIA FIBER NETWORK, INC., T. MORIARTY & SON, INC., Defendants. Empire City Subway Company (Limited), Third-Party Plaintiff, Nico Asphalt Paving, Inc., Third-Party Defendant.
Empire City Subway Company (Limited), Third-Party Plaintiff, against
against
Nico Asphalt Paving, Inc., Third-Party Defendant.
103282/03
Marilyn Shafer, J.
Motion Sequence Nos. 002 and 003 are consolidated for disposition. In Motion Sequence No. 002, defendant/third-party plaintiff Empire City Subway Company (Limited), sued here as Empire City Subway (ECS) moves, pursuant to CPLR 3212, for an order dismissing the complaint and all cross claims asserted against it. Defendant Consolidated Edison Company of New York, Inc. (Con Ed) cross-moves, pursuant to CPLR 3212, for similar relief. In Motion Sequence No. 003, defendant T. Moriarty & Sons, Inc. (Moriarty) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it. Defendant Nico Asphalt Paving Inc. (Nico) cross-moves for similar relief.
This is an action for personal injuries sustained by plaintiff on January 25, 2002, while he was riding his bicycle on Eighth Avenue, between 31st and 33rd Streets, New York, New York. Plaintiff's injuries allegedly occurred when his bicycle struck a raised, uneven portion of the roadway pavement, causing him to be thrown over the handlebars to the ground.
Plaintiff brought this action against the City of New York, the owner of the roadway, and Con Ed, ECS, Metromedia Fiber Network, Inc. (Metromedia), and Moriarty, the entities that allegedly worked in the surrounding area prior to plaintiff's fall. Plaintiff discontinued, without [*2]prejudice, the action as against Metromedia. Defendant ECS subsequently instituted a third-party action against Nico, a paving company used by ECS for paving work on Eighth Avenue, New York, New York. In April 2004, plaintiff amended its summons and complaint to add Nico as a direct defendant.
Defendants ECS, Con Ed and Nico now seek summary judgment dismissing the complaint and cross claims respectively asserted against them. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once a prima facie showing has been made, the burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists, warranting a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
In support of their respective motions, defendants primarily rely on the parties' respective depositions.
Plaintiff testified, inter alia, that his accident occurred on the northeast side of Eighth Avenue, between 32nd Street and 33rd Streets, New York, New York, approximately 50 feet north of 32nd Street (Plaintiff's deposition held on 3/4/04, at 46). He described the roadway condition which caused him to fall as two large asphalt bumps, approximately six-to-eight inches high with approximately 12 inches between them (id. at 25).
Dirk Rolff, ECS's project manager, testified, inter alia, that ESC owns and maintains a system of underground conduits and manholes throughout the boroughs of Manhattan and the Bronx (Rolff's deposition held on 6/9/04, at 14); that his review of ECS's records for the two years preceding plaintiff's accident disclosed that, during that period, three jobs involving excavation work were performed on Eighth Avenue; and of those, only one was done between 32nd and 33rd Streets, but involved the west side of Eighth Avenue between eight and nine feet east of the westerly curb line (id. at 12 & 21). During his deposition, Rolff was also asked about a job order reference (088877RT) noted in plaintiff's Exhibit 3 for which records had not been produced (id. at 29). Rolff responded that he thought the reference number "may be a typographical error" (id.). Later, when his executed and notarized transcript was returned, Rolff stated that job number 088877RT was a conduit installation that was supposed to take place on Eighth Avenue between West 30th and West 31st Streets but had been canceled (ECS's Exhibit G, Correction sheet attached to Rolff's deposition dated 4/25/02).
Mario Smith, Con Ed's record searcher, also testified that his review of Con Ed's records for the two years preceding and including plaintiff's date of accident at the location of West 32nd Street and Eight Avenue, New York, New York, failed to reveal any work performed by Con Ed or on its behalf at the accident site (Smith's deposition held on 8/13/04, at 9-10).
John Denegall, Nico's superintendent, testified, inter alia, that Nico is the exclusive paver for ECS in Manhattan and the Bronx, and the primary paver for Con Ed in Manhattan (John Denegall's deposition held on 10/19/04, at 9-10); that he conducted a search in Nico's records for the location of Eighth Avenue between 32nd and 33rd Streets for the two-year period preceding and including the accident date (id. at 11 & 20); and that Nico had no records of work being done [*3]at that particular location (id. at 12).
Since moving defendants ECS, Con Ed and Nico submit proof in admissible form showing that, prior to plaintiff's accident, they did not perform any work in the eastern side of Eighth Avenue, where plaintiff identified the site of his accident, they establish, prima facie, their entitlement to judgment as a matter of law (see Robinson v City of New York, 18 AD3d 255 [1st Dept 2005]).
In opposition to the motions of ECS, Con Ed and Nico, plaintiff initially argues that they failed to demonstrate their respective prima facie entitlement to summary judgment. As noted by plaintiff, in support of their respective summary judgment applications, these defendants are required to establish that they did not create the alleged defective condition that caused plaintiff's fall (see Field v City of New York, 302 AD2d 223 [1st Dept 2003]). Contrary to plaintiff's argument, however, as aforementioned, the moving defendants sufficiently met their burden.
Further, plaintiff contends that these defendants failed to establish that their respective record searches encompassed the accident site, because the location they searched for, the intersection of West 32nd Street and 8th Avenue, does not exist. Plaintiff claims that the map he submitted, as Exhibit A to his supporting papers, reflects that West 32nd Street ends at 7th Avenue and does not continue thereafter, thus demonstrating that there is no intersection of West 32nd and 8th Avenue (Plaintiff's Exhibit A, copy of map depicting the area surrounding the location of plaintiff's accident). A review of the record, however, discloses that these defendants conducted their search based on the plaintiff's description of the accident site. In his deposition, plaintiff described the location of his accident as being between 32nd and 33rd Street (Plaintiff's deposition, at 23 & 46), and "north of 32nd Street" (id. at 46). Plaintiff's verified bill of particulars also identifies the location of his accident as "the street pavement of Eighth Avenue north of its intersection with West 32nd Street ..." (Plaintiff's verified bill of particulars dated 6/30/03, ¶ 2). Furthermore, it is apparent from the depositions of the witnesses on behalf of ECS and Con Ed that their respective searches, in any event, disclosed work performed on Eighth Avenue between West 31st and 33rd Streets during the two-year period preceding the accident (Rolff's deposition, at 12) and subsequent to the accident (Smith's deposition, at 9-10), which were unrelated to the site of plaintiff's accident.
Plaintiff also argues that, since the City of New York issued permits to Con Ed for excavation work in the subject area before and after plaintiff's accident, it demonstrates that they performed work thereat. Contrary to plaintiff's argument, however, the mere fact that permits were issued to Con Ed is insufficient to raise a question of fact as to whether such work was actually performed (see Bermudez v City of New York, 21 AD3d 258 [1st Dept 2005]). Here, the undisputed testimony of these defendants reflects that any work performed, pursuant to these permits, was not conducted anywhere near the site plaintiff identified as the location of his injury, or that work was not performed since the permits were subsequently cancelled.
Plaintiff's argument that ECS and Con Ed failed to fulfill their respective burdens of proof since they did not search for records for more than two years is also without merit, particularly when the records reflect, and plaintiff acknowledges, that the parameters of their searches were directed by this court. Since plaintiff fails to proffer some evidence connecting any of defendant's work to the situs of plaintiff's injury, the respective applications by defendants ECS, Con Ed and Nico for summary [*4]judgment dismissing the complaint and all cross claims against them are granted (see Robinson v City of New York, 18 AD3d 255, supra).
Defendant Moriarty also moves for summary judgment dismissing the complaint and all cross claims asserted against it.
Through sworn deposition testimony of Anthony Abbene, its project manager, Moriarity demonstrates its prima facie entitlement to judgment as a matter of law (Weingrad v New York Univ. Med. Ctr., 64 NY2d 851, supra), in that Abbene testified, inter alia, that Moriarty had been hired by Mass. Electric Construction Company, as the civil mechanical subcontractor, for an electrical and mechanical rehabilitation of Penn Station, New York (Abbene's deposition held on 6/9/04, at 11); that Moriarty's work was done primarily inside Penn Station (id. at 13-14); and none of it included any street openings or street paving on Eighth Avenue (id. at 20-21). In light of the absence of any opposition to Moriarity's application, its motion is granted.
In view of the foregoing, it is
ORDERED that the motion and cross motion by Empire City Subway Company (Limited) and Consolidated Edison Company of New York, respectively, in Motion Sequence 002, for summary judgment dismissing the complaint and all cross claims asserted against them are granted, and the complaint is severed and dismissed with costs and disbursements to said defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the motion and cross motion by defendant T. Moriarty & Sons, Inc., and defendant/third party defendant Nico Asphalt Paving Inc., respectively, in Motion Sequence No. 003, for summary judgment dismissing the complaint and all cross claims asserted against them are granted, and the complaint is severed and dismissed with costs and disbursements to said defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the remainder of the action shall continue.
Dated:
ENTER:
_______________________
J. S. C.
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