Herbst v City of New York

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Herbst v City of New York 2011 NY Slip Op 33181(U) December 9, 2011 Sup Ct, NY County Docket Number: 103365/10 Judge: Cynthia S. Kern 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 1211312011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY CYNTHIA S. KERN u PRESENT: J. . $5 e- 5s ' PART Justlco Index Number : 103365/2010 HERBST, SARELLE vs. CITY OF NEW YORK SEQUENCE NUMBER : 003 - MOTION DATE MOTION SEQ NO. 03 SUMMARY JUDGMENT The followlng papsm, numbered 1 to Notlce of MotIonlOrdsr to Show Cauie Aniwering Affldavlta , were read on thls motlon toffor - Affldavita - Exhlbltn INo(*). - Exhlbita IN O W . INO(#). Replying Affldavlb Upon the forsgolng papers, It lo ordered that thls motlon Is .. is decided in accordance with the annexed decision. I NI"V YORK COUNTY CLERK'S OFFICE Dated: 1. CHECK ONE: A ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: , J.S.C. CYNTHIA S.KERN ........................... MOTION IS: 0GRANTED - ................................................ & CASE DISPOSED 0DENIED 0SEifLE ORDER DO NOT POST J.S.C. NON-FINAL DISPOSITION aGRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] IndexNo. 103365/10 Plaintiff, DECISION/ORDER -against- THE CITY OF NEW YORK, TULLY CONSTRUCTION CO., INC., EMPIRE;: CITY SUBWAY COMPANY (LIMITED) and CONSOLIDATED EDISON, INC., HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 221 9(a), of the pap for : nh Papers e6 c e d u in the review of this motion 1 2a]] Q!.$ov FOR Notice of Motion and Affidavits Annexed........c&ews8.. .......... Notice of Cross Motion and Answering Affidavits .........0 ~ Affirmations in Opposition to the Cross-Motion.. ........................ Replying Affidavits., .................................................................... Exhibits.,.................................................................................... - . Numbered 1 2 ~ ~ . 3 4 Plaintiff commenced the instant action to recover damages for personal injuries she allegedly sustained when she tripped and fell on a metal sewage grate in the crosswalk near the northeast corner of Fifth Avenue and East 36thStreet, New York, New York on January 4,2009. Defendant Empire City Subway ( ECS ) now moves for summary judgment dismissing plaintiffs complaint and all cross-claims against it on the ground that ECS did not create the alleged defect. Defendant Consolidated Edison, Inc. ( Con Ed ) cross-moves for summary judgment dismissing the complaint and all cross-claims against it on the grounds that it did not [* 3] create the alleged defect and that it did not o m the metal grate. For the reasons set forth below, both ECS s motion and Con Ed s cross-motion are granted. On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Wayburn v. Madison Land Ltd. Partnership, 282 A.D.2d 301 (lgt Dept 2001). Summary judgment should not be granted where there is any doubt as to the existence of a material issue o f fact. See Zuckerman v. City nfNew York, 49 N.Y.2d 557, 562 (1980). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim. Id. . . In the instant action, ECS is entitled to summary judgment as it has made out its prima facie case that it did not perform any work at the accident location prior to the date of the accident, and thus, did not create the alleged defect. As set forth in the sworn testimony of Cynthia Howard, a record searcher for the New York City Department o f Transportation, a two year search was performed for work records at the location of plaintiffs accident. Ms. Howard testified that seventeen permits were found but none of the permits were issued to ECS. Additionally, as set forth in the affidavit of Calvin Gordon, Specialist for ECS, ECS only performed work west of the location where plaintiffs accident occurred. Specifically, ECS conducted trench work five feet north of the southerly crosswalk at Fifth Avenue and 361hStreet. According to ECS records, ECS s trench work did not involve any activity in the northeast corner of the intersection where plaintiff alleges her accident took place. In response, plaintiff fails to raise a triable issue of material fact as to whether ECS performed work at the location where 2 [* 4] plaintiffs accident occurred. Thus, ECS s motion for summary judgment is granted. Con Ed is also entitled to summary judgment as it has made out its prinia facie case that it did not create the alleged defect nor did it own the metal grate at issue. As set forth in the sworn testimony of Jennifer Teasley, Specialist for Con Ed, a two year search was performed for work done in the area where plaintiffs accident occurred, which included the general vicinity north, south, east and west of the intersection at issue. Ms. Teasley attested that no records were found that showed Con Ed work or facilities at or around the location of plaintiffs accident at the northeast corner of the intersection of Fifth Avenue and 36thStreet. In response, plaintiff has failed to raise a triable issue of material fact as to whether Con Ed performed work at the location where plaintiffs accident occurred or whether Con Ed was in any way responsible for the maintenance of the metal grate. Thus, Con Ed s cross-motion for summary judgment is granted. Although plaintiff asserts that both ECS s motion and Con Ed s cross-motion are premature as discovery is incomplete, such argument is without merit. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Davila v. New York City Transit Auth., 66 A.D.3d 952,953-54 (2nd Dept 2009); see also Brown v. Bauman, 42 A.D.3d 390,39293 (1st Dept 2007). In the instant case, both ECS and Con Ed assert by persons with personal knowledge of the material facts that a two year search was conducted for any records of work done in the area where plaintiff tripped and fell. Both defendants assert that no records were found of any work done for two years prior to and including the date of plaintiffs accident. Accordingly, ECS s motion for summary judgment is granted and Con Ed s cross-motion for summary judgment is granted. Plaintiff s complaint and any cross-claims are dismissed [* 5] against ECS and Con Ed only. The Clerk is directed to enter judgment in favor of ECS and Con Ed and against plaintiff, This constitutes the decision and order of the court. Enter: r( .. 4

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