Torres v Consolidated Edison Co. of N.Y. Inc.

Torres v Consolidated Edison Co. of N.Y. Inc. 2015 NY Slip Op 03486 Decided on April 28, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 28, 2015
Tom, J.P., Sweeny, Manzanet-Daniels, Clark, Kapnick, JJ.
14969 301430/10

[*1] Santiago Torres, Plaintiff-Respondent, —

v

Consolidated Edison Company of New York Inc., et al., Defendants, The Hallen Construction Co., Inc., Defendant-Appellant.

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant.

Bernstone & Grieco, LLP, New York (Matthew A. Schroeder of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 31, 2013, which, inter alia, denied the motion of defendant the Hallen Construction Co., Inc. (Hallen) for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Dismissal of the complaint and all cross claims as against Hallen is warranted in this action where plaintiff was injured when he tripped and fell over an uncovered gas valve in the sidewalk. Hallen submitted evidence showing that it did not perform work on the subject valve (see Amini v Arena Const. Co., Inc., 110 AD3d 414 [1st Dept 2013]; Jones v Consolidated Edison Co. of N.Y., Inc., 95 AD3d 659, 660 [1st Dept 2012]). Although Hallen contracted with defendant Con Ed to install subterranean gas service with a sidewalk valve near the preexisting service and valve, the "as constructed" diagrams of Con Ed show that the work did not involve the valve over which plaintiff tripped. Thus, Hallen had no obligations as to the subject valve, including ensuring that it was covered. Nor is there any evidence that Hallen ever removed the subject valve's cover in connection with its work (see DeSilva v City of New York, 15 AD3d 252, 254 [1st Dept 2005]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 28, 2015

CLERK