Nibbs v City of New York & RCN Telecom Servs. of NY Inc.

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Nibbs v City of New York & RCN Telecom Servs. of NY Inc. 2012 NY Slip Op 30774(U) March 26, 2012 Supreme Court, New York County Docket Number: 401886/2008 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: BARBARA JAFFF &e J.S.b. // Index Number: 401886/2008 NIBBS, MARTHA vs. C I T Y OF NEW YORK SEQUENCE NUMBER : 002 SUMMARY JUDGMENT The following papem, numbered Ito Notlce of MotionlOrder to Show Cause Answerlng Affldrvita - Exhibib INDEX NO. MOTION DATE '/ /'SF / I 4 MOTION SEQ NO. C&L 1 ,were 5 PART JusUce 0 - bur2 - read on this motion tolfor ~ ~ J r p ? ' ' u ~I J ! ' I mt'''2 .hi -AmdaviG - Exhiblts No@). 3 I INo(s). IW s ) . Replying Affldavita Upon the foregoing papers, It Is ordered that thls motion IS MAR 28 2012 NEW YORK J.S.C. I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION I : S 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED D-6 L RANTED aSETTLE ORDER 1 ]DO NOT POST 7 N-FINAL DISPOSITION DENIED GRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 401 886/08 Index No. MARTHA NIBBS Motion Date: Motion Seq. No.: Motion Cal. No.: Plaintiff, -against- THE CITY OF NEW YORK & RCN TELECOM SERVICES OF NY INC., 1/17/12 002 102 DECISION AND ORDER Third-party Plaintiff, -against- FILED HYLAN DATACOM & ELECTRICAL INC., MAR 2 8 2012 NEW YORK COUNTY CLERK'S OFFICE I For Hylan: Scott C. Perez, Esq. The Law Offices of Edward Garfinkel 12 Metrotech Center, 28"'Floor Brooklyn, NY 11201-3837 718-250-1 100 By notice of motion dated December 21,201 1 and submitted on default, third-party defendant Hylan Datacom & Electrical Inc. (Hylan) moves pursuant to CPLR 3212 for an order dismissing the third-party complaint and all cross-claims against it. I. BACKGROUND On or about April 30,2007, plaintiff tripped and fell on an uneven portion of pavement as she was walking north across East 43rdStreet on the crosswalk just east of its intersection with Third Avenue in Manhattan. (Affirmation of Scott C. Perez, Esq., dated Dec. 21,201 1, Exh. C). [* 3] Sometime thereafter, plaintiff commenced the instant matter by filing a summons and complaint. On or about April 2,20 10, defendant RCN Telecom Services of NY Inc. (RCN) commenced a third-party action against Hylan with the filing of a summons and third-party complaint, asserting claims for common-law indemnification and contribution. ( l d ,Exh. A). On or about July 13, 2010, Hylan joined issue on the third-party complaint with service of its answer. (Id., Exh. B). At an examination before trial (EBT) held on June 2, 201 1, Nadine Loggia, expediter for Hylan, testified that Hylan s records reveal that it performed work on RCN s behalf on East 43rd Street between Lexington and Third Avenues and that the work did not extend into the east crosswalk. (Id., Exh.D). At a second EBT held on September 15,2011, she examined a photograph on which plaintiff identified the accident site and testified that it did not portray Hylan s work. (Id,Exh. E). At an EBT held on the same day, Brian Crombie, RCN constructing and engineer manager, testified that a diagram of RCN s subterranean facilities at or near the subject intersection shows that no such facilities exist east of the intersection. (Id., Exh. I). rr. CONTENTIONS Hylan denies that it owes common-law indemnification or contribution to RCN as it did not perform work at the accident site. ( I d ) . ludmsxu A party seeking summary judgment must demonstrate, prima< facie, entitlement to judgment as a matter of law by presenting sufficient evidence to negate any material issues of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the movant meets 2 [* 4] this burden, the opponent must rebut the prirnajacie showing by submitting admissible evidence, demonstrating the existence of factual issues that require trial. (Zuckerman v CiQ of New York, 49 NY2d 557, 562 [ 19801; Bethlehem Steel Curp. v MOW,NY2d 870, 872 [I19801). 51 Otherwise, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 NY2d at 853). To establish aprima facie claim of negligence, a plaintiff must show duty, breach, and proximate cause. (Kenney v Ct ofNew York, 30 AD3d 261,262 [lst iy Dept 20061). A contractor who has not performed or is not responsible for any construction work at an accident site owes no duty to a plaintiff injured at the site. (Id.). L Common-law indemnification is available to a party that has been held vicariously liable from the party who was at fault in causing a plaintiffs injuries. (Structure Tone,Inc. v Universal Servs.Group, Ltd,, 87 AD3d 909,911 [Is1Dept 201 11). And, pursuant to CPLR 1401, Ywo or more persons who are subject to liability for damages for the same personal injury . . . may claim contribution among them. Having established that it did not perform work at the accident location, and absent any evidence that its work on the other side of the intersection caused or created the defect on which plaintiff tripped, Hylan has demonstrated, prima facie,that it may not be held liable to plaintiff, thereby dispositively rebutting RCN s claims for common-law indemnification and contribution. (See Amarma v Cily ufNew York, 5 1 AD3d 596 [ 19t Dept ZOOS] [where unrebutted affidavit of project superintendent reflected that defendant did not perform work at accident site, and no evidence showing that its work caused defect offered, defendant entitled to summary judgment]; FZores v City ofNew York,29 AD3d 356 [lSt Dept 2006][defendant entitled to summary 3 [* 5] judgment [albsent some evidence connecting [its] work to the situs of plaintiff s injury ]). Accordingly, it is hereby ORDERED, that third-party defendant Hylan Datacom & Electrical Inc. s motion for summary judgment on the third-party complaint is granted. ENTER: DATED: March 26,2012 New York, New York MAR 2 6 2012 J.S.C. FILED NEW YORK COUNTY CLERKS OFFICE 4

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