Reed v Consolidated Edison

Annotate this Case

Download PDF

Reed v Consolidated Edison 2012 NY Slip Op 32952(U) December 7, 2012 Sup Ct, New York County Docket Number: 113401-2008 Judge: Kathryn E. Freed 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. SCANNEDON I211712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PART PRESENT: Justice - ,/o - Index Number : 113401/2008 REED, BIANCA vs. CONSOLIDATED EDISON SEQUENCE NUMBER : 005 - INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits - Exhibits - , were read on this motion tO/fOr -Affidavits - Exhibits U 0 IWd.1 ~, 3 q , , -7 IW 5 ) . INo(@. Replying Affidavits Upon the foregoing papers, it is ordered that this motion is iI Dated: 12 i ,J.S.C. EON.KATHRYNFRED ON-FINAL DISPOSITION ..................................................................... 0 CASE DISPOSED IN CIDENIED oG ~ N T E D PART 0OTHER 2. CHECK AS APPROPRIATE: ........................... MOTION IS: I I GRANTED I SUBMIT ORDER 0SETTLE ORDER 3. CHECK IF APPROPRIATE: ................................................ 0DO NOT POST 0FIDUCI4RY APPOINTMENT 0REFERENCE 1. CHECK ONE: [* 2] P 1ai1 ti i f, 1 DECISION/ORDEK 1 Index No.: 1 13401-2008 -againstCONSOLIDATED ED IS ON,^ F1LED I Scq. No.: 001 Rccitation, as requircd by CPLR $2219[a], of the papers considered in the review of this (thcsc) motion(s) : PAPl3S NUMBERED NOTICE OF MOTION, AFFIDAVI I S AND EXHIBITS ANNEXED . . . . . . . . . . . . . .1-3, 4-7.. ORDER TO SHOW CAUSE AND AFFIIIAVITS ANNEXED ...............1 ...................... ANSWERING; AFFIDAVITS ..................................................................... .......... 8......... REPLY IN C; A FF I I) AVI I S ......................................................................... ...........9 ......... 0 11 E R ........................................................................................................ ...................... Dcfcndant iiioves for an Order granting summary judgment pursuant to CPLKS32 12 and an Order dismissing all dircct, cross-claims or any other claims of any nature. Plaintiff opposes. After a rcvicw of the papcrs presented, all relevant statutes and caselaw, the Court denies the motion. Ihe iiistaiit iiiatter concerns injuries allegedly sustained by plaintiff on July 6,2007. As she was crossing 146 Street, a vehicle crossed over an unsecured iron roadway plate, causing it to beconic air born, ultiniatcly landing on her riglit foot. As a result, plaintiff sustained a fractured aiik le. I he action was subsequently commenced by Suininons and Verified Coinplaint on 1 . - [* 3] Septenibcr 24, 2008. Ilefcndant interposed its Verified Answer and Cross-Complaint on October 22, 2008. Positions of thc parties: Defeiidaiit argues that plaiiitii fhas failed to prcsent any evidence or testimony that shows that it or its coiltractors owned the roadway plate alleged to have caused plaintiff7s accident. It asserts that a review of its records indicates that neither it nor its contractors performed any excavation or construction activity in the roadway in front of479 West 146 Strcct. Nor, did it own or use a metal roadway plate allcgcd to bc the proximate cause of plaintiffs injury. In an effort to undermine plaintifi7s claim, defcndant refers to a portion of the dcposition testimony of i ts rccord scarclier, Mr.Patrick Keogh, who testified that defendant s records revealcd no cxcavations perlbniicd by dcf cndantin the roadway whcrcin plaintift?s accident is alleged to have occurred. I n [act, MI-. Keogh also testified that said records actually demonstrate post--accident work on the sidcwalk in front of 474 West 146 hStreet.. , wherein the cut was opened and backiilled on July 10, 2007. He maintained that no roadway plates were utilizcd during this proccdure. Defendant also proffers a portion of its construction management inspector, Massimiliano Morinello s deposition tcstimony. Mr. Morincllo testified that his duties include inspection of final rcstoratjoiis of roadways, sidewalks and checking violations issued by the City. He also tcstitied that defendant s work that took placc in h i i t of 474 Wcst 146 Strect was actually pcrformed on the sidewalk, and did not involve any roadway plates. Wlien shown some photographs depicting the sulT.ject roadway platc, Mr. Moiincllo testified that road plates used for sidewalks are smaller and thiiiiicr than the subject onc. He also testified that such plates utilized by defendant can be identifkd 2 [* 4] Rl =S I C)RATION-MANHATTAN, which indicates that New York Paving Inc., was apparently rctaincd to rcstorc the location of 474 W 146 ST. FROM: AMSTERDAM AV TO: CONVENT AV. I hcdate of said rcstoration appears to be July 19,2007. Plaintin ernphasizes the fact that on the bottom right hand portion of this document, there is a handwritten note stating Con Ed plates and barricade on location called in 8-22-07. This note is followed by what appears to be the initials MM . PlaintiIlalso argucs that defendant s claim that Mr. Mori,nello testified that a Con Ed plates can bu idcntificd by the letter C embossed on them was misstated. She incorporates the actual exccrpt of said testimony to her opposition papers, wherein Mr. Marinello concedes that he has not seen all Con Ed plates and that he had identified the subject plate as a Con Ed platc. Plaintiff argues that the evidence it has presented creates material issues of fact which ncccssitatcs thc denial o f thc instant motion. Defendant responds that said evidence is L(speculative and unsupported by any testimony of any witness in the instant action. Conclusions of law: . Fhe drastic remedy of summary judgment should bc grantcd only where there are no triable issues of f act ( Clicinical Bank v. West 195 h Street Development Corp., 16 1 A.D.2d 218 [ 1 Dept. 19901; Pearson v. Dix McBride, I , K , 63 A.D.3d 895 [2d Dept. 20091 j, or where the issue is even debatable ( Stone v. Goodson, 8 N.Y.2d [1960] j. In order to prevail on a summary judgment motion, the movant must make a prima facie showing ofentitlement to judgment as a matter of law, through adniissible evidence, eliminating all material issues of fact ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [19S6] ). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing ( Bethlehem Steel Corp. v. Solow, 5 1 N.Y.2d 870, 4 [* 5] 872 [ 19891 ). In opposing such a motion, the party must lay bare its evidentiary proof. ('Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliancc upon surmise, conjecture or speculation ( Morgan v. New York Telenhone, 220 A.D.2d 728,729 " [2d Dept. 19953; Zuckerman v. Citv of New York, 49 N.Y.2d 557, 562 [ 19861 ). In thc casc at bar, thc Court finds that evidencc has bccn presentcd which clearly crcatcs material issues of fact that can only be properly addressed by the trier of fact. In accordance with the aforcmentioned, it is hercby ORDERED that defendant's motion for summary judgincnt and dismissal of all direct and cross-claims is denied and it is further ORDEIIIII) that this constitutcs thc decision and order of the Court. I)A'I'H13: Deceiiiber 7, 2012 F 1 \II E D h i .Kathryn E. Freed \ 5 J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.