Berman v Empire City Subway Co., Inc.

[*1] Berman v Empire City Subway Co., Inc. 2009 NY Slip Op 50121(U) [22 Misc 3d 130(A)] Decided on January 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570612/08.

Sonia Berman, Plaintiff-Respondent,

against

Empire City Subway Company, Inc. and Consolidated Edison of New York, Defendants, -and- Pipeline Construction, LLC, Defendant-Appellant.

Defendant Pipeline Construction, LLC appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered March 27, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered March 27,
2008, reversed, with $10 costs, and the motion of defendant Pipeline Construction, LLC for summary judgment dismissing the complaint against it granted. The Clerk is directed to enter judgment accordingly.

Defendant Pipeline Construction, LLC made a prima facie showing of entitlement to summary judgment by establishing that it did not perform any construction or road work on the northeast corner of 96th Street near Madison Avenue, where plaintiff fell (see Flores v City of New York, 29 AD3d 356, 358 [2006]; Robinson v City of New York, 18 AD3d 255, 256 [2005]). Plaintiff's speculative assertions that the earlier work undertaken by defendant on Madison Avenue, away from the location of plaintiff's fall, impacted construction work on surrounding and adjacent areas, are insufficient to raise a triable issue (see Cacciatore v City of New York, 49 AD3d 271 lv denied 11 NY3d 705 [2008]); Flores v City of New York, 29 AD3d 356 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE
COURT. [*2]
Decision Date: January 28, 2009