Royzman v Consolidated Edison Co. of N.Y., Inc.
2012 NY Slip Op 31017(U)
April 16, 2012
Supreme Court, New York County
Docket Number: 103311/2009
Judge: Barbara Jaffe
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Index Number : 10331112009
Sequence Number : 005
MOTION SEQ. NO.
MOTION CAL. NO.
The following papers, numbered 1 to
were read on thia motion to/for
Notice of Motion/ Order to Show Cause - Affidavits - Exhlblts ...
Answering Affidavlta - Exhlblts
Upon the foregoing papera, it ia ordered that thla motlon
COUNTY CLERK'S OFFICE
Check if appropriate:
0 SUBMIT ORDER/JLTDG.
DO NOT POST
FINAL D ~ S P O S ~ T ~ O N
0 SETTLE ORDER /JUDG.
Motion Seq. No.:
Motion Cal. No.:
DECISION AND ORDER
CONSOLIDATED EDISON COMPANY OF NEW YORK,
INC., THE CITY OF NEW YORK, NICO ASPHALT PAVING,
INC., SAFEWAY CONSTRUCTION ENTERPRISES, INC.,
JC DUGGAN, INC., and ZEBRA ENVIRONMENTAL COW.,
NICO ASPHALT, INC. and SAFEWAY CONSTRUCTION
Robert Modica, Esq.
Gordon & Rees, LLP
90 Broad Street, 231dFloor
New York,NY 10004
Murad X.Agi, Esq.
Camacho Mauro Mulholland, LL P
350 Fifth Avenue, Suite 5 10 1
New York, NY 101 18
By notice of motion dated November 2,201 1 and submitted on default, defendant Zebra
Environmental Corp. (Zebra) moves pursuant to CPLR 3212 for an order dismissing the
complaint and all cross-claims against it. By notice of cross-motion dated November 23,201 I
and submitted on default, defendant JC Duggan, Inc. (Duggan) moves pursant to CPLR 3212 for
an order dismissing the complaint and all cross-claims against it.
On December 3 1, 2008, plaintiff was walking across West 1841hStreet just west of its
intersection with Broadway in Manhattan when he tripped and fell in a trench in the street,
allegedly sustaining physical injuries. (Affirmation of Robert Modica, Esq., dated Nov. 2,201 1
[Modica Aff.], Exhs. A, C).
Court records reflect that on or about March 10,2009, plaintiff commenced the instant
action with the filing of a summons and complaint.
On or about March 29,201 1, plaintiff served defendants with a supplemental summons
and amended complaint, adding, inter alia, Zebra and Duggan as party defendants and asserting
negligence claims against them. (Id.).
On April 14 and 25,201 1, Duggan and Zebra joined issue with service of their answers,
respectively. (Id,Exh. B; Affirmation of Murad X. Agi, Esq., dated Nov. 23,201 1 [Agi Aff.],
By affidavit dated July 28,20 11, Gerald Cereghino, president of Duggan, states that
Duggan âis not in the business of excavating andor performing roadwork,â that Duggan
performed no work or excavation at the accident site, that it obtained a permit to provide a crane
for the hoisting up of medical equipment at 4334 Broadway, that this work was complete by the
close of business on February 4,2008, and that Duggan never returned to the accident site. ( I d ,
By affidavit dated October 4,20 11, Paul Fleischrnann, founder and president of Zebra,
states that Zebra performs âsubsurface sampling, installation, injection and data collection
services to engineering and consulting firms,â that in October of 2008 it performed work at 4320
Broadway, that this work did not involve digging a trench but rather required the drilling of five
quarter-sized holes, that these holes were backfilled, that it âhas never owned, leased, rented,
maintained, occupied, or in any way controlled the roadways and/or crosswalks located at the
[subject] intersection,â and that it has never entered into a contract for the maintenance or repair
of the accident site. (Modica Aff., Exh. D).
1 . CONTENTIONS
Both Zebra and Duggan disclaim liability for plaintiffs injuries as there is evidence
neither that they owned, occupied, controlled or made a special use of the accident site nor that
they created the trench on which he tripped, and they assert that all cross-claims against them
should be dismissed as a result.. (Id.; Agi Aff.).
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. (Winepad v New York Univ.
Med. O r . , 64 NY2d 851, 853 ). If the movant meets
this burden, the opponent must rebut the prima facie showing by submitting admissible evidence,
demonstrating the existence of factual issues that require trial. (Zuchrman v City oflvew York,
49 NY2d 557,562 ; Bethlehem Steel Corp v Solow, 51 NY2d 870, 872 ).
Otherwise, the motion must be denied, regardless of the suffxiency of the opposition. (Winegrad,
64 NY2d at 853).
To state aprima facie claim of negligence, a plaintiff must show duty, breach, and
proximate cause. (Kenney v City of New York,30 AD3d 261,262 [lââ
Dept 20061). âLiability for
a dangerous condition is generally predicated on [ ] ownership, control or a special use of the
property.â (Lopez v AlliedAmusement Shows, Inc., 83 AD3d 5 19, 5 19 [ lRt
Dept 201 11; Bulsarn v
Delma Engâg Corp., 139 AD2d 292,296 [lst
Dept 19SSlj. City has the duty of maintaining
public streets and roadways in a reasonably safe condition. (Kiernan v Thompson, 73 NY2d 840,
âCommon-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.â (Structure Tone, Inc. v
Universal Servs. Group, Ltd., 87 AD3d 909,911 [lstDept 201 11) And, pursuant to CPLR 1401,
âtwo or more persons who are subject to liability for damages for the same personal injury . . .
may claim contribution among them.â
Here, plaintiffs accident occurred on âaCity street, and there is no evidence that Zebra or
Duggan controlled or occupied the accident site or put it to a special use. Moreover, as 4320 and
4334 Broadway are located near the intersection of Broadway and West 1 85â Street, both Zebra
and Duggan offer evidence demonstrating that they did not perform work at the accident site.
Absent evidence that their work nearly a block away caused or created the trench, Zebra and
Duggan have established prima facie entitlement to summary judgment on plaintiffs claims and
have dispositively rebutted any cross-claims for common-law indemnification and contribution.
(See Amarosa v Ct ofNew York, 5 1 AD3d 596 [lstDept 20081 [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];
Flores v Ci@ofhrew York, 29 AD3d 356 [lBt
Dept 2006][defendant entitled to summary
judgment â[albsent some evidence connecting [its] work to the situs of plaintiffs injuryâ]).
Accordingly, it is hereby
ORDERED, that defendant Zebra Environmental C o p â s motion for summary judgment
on the complaint and all cross-claims against it is granted; and it is further
ORDERED, that defendant JC Duggan, Inc.âs cross-motion for summary judgment on the
complaint and all cross-claims against it is granted.
April 16,20 12
New York, New York