Hernandez v City of New York

[*1] Hernandez v City of New York 2009 NY Slip Op 50103(U) [22 Misc 3d 130(A)] Decided on January 22, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 22, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570477/08.

Carmen Hernandez, Plaintiff-Appellant,

against

The City of New York, and Consolidated Edison Company of New York, Inc., Defendants-Respondents. Consolidated Edison Company of New York, Inc., Third-party plaintiff- Respondent, City Wide Asphalt Paving Co. and Felix Industries, Inc., Third-party defendants- Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered September 18, 2007, which granted summary judgment dismissal to defendant Consolidated Edison Company of New York, Inc. and third-party defendant City Wide Asphalt Paving Company.

Per Curiam.
Order (Anil C. Singh, J.), entered September 18, 2007, affirmed, with $10 costs.

Defendant Con Edison and third-party defendant City Wide Asphalt Paving Co. made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint and third-party complaint as against them (see Flores v City of New York, 29 AD3d 356 [2006]). Defendants established that they did not perform any excavation or road work in the crosswalk on West 189th Street where plaintiff fell (see Melcher v City of New York, 38 AD3d 376 [2007]). Plaintiff's speculative assertions are insufficient to raise a triable issue as to whether her injuries resulted from the repair and excavation work done by these defendants many months before the incident at the nearby intersection, away from the location of plaintiff's fall as [*2]identified by plaintiff herself in photographs at her deposition. In the absence of any evidence connecting defendants' work to the situs of plaintiff's injury, these defendants are entitled to summary judgment (see Robinson v City of New York, 18 AD3d 255 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 22, 2009