Qu Yun Wei v City of New York

Annotate this Case
Download PDF
Qu Yun Wei v City of New York 2011 NY Slip Op 33529(U) December 29, 2011 Sup Ct, NY County Docket Number: 108011/07 Judge: Barbara Jaffe 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. EDON 111012012 [* 1] INDEX NO. /WEI, QI YUN MOTION DATE VS. MOTION SEQ. NO. CITY OF NEW YORK 3 MOTION CAL. NO. SEQUENCE NUMBER : 003 - SUMMARY JUDGMENT LA . this motlon to/for ) -J / is I PAPER8 NYMBFRED Norice .. or Motion/ Order to Show Cause - Affldavlts Anawering Affidavits - Exhibits ... - Exhiblts L 3 A Replylng Aff idavlts Cross-Motion: 0 Yes $I NO Upon the foregoing papers, it I ordered that this motlon s P JAN 09 2012 NEW YORK COUNTY CLERKS OFFICE Dated: 0 FINAL DISPOSITION 0 REFERENCE 0 DO NOT POST Check if appropriate: 0 SETTLE ORDER/ JUDG. a SUBMIT ORDER/ JUDG. Check one: [* 2] Plaintiff, Motion Subm.: Motion Seq. Nos.: 003, "against- , 10/4/11 DECISION & ORDER THE CITY OF NEW Y O N , THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, FELIX ASSOCIATES, LLC, GRECO BROS. READY M X CONCRETE CO. INC., and CONSOLIDATED I EDISON COMPANY OF NEW YORK, INC., For plaintlffi Herbert Subin, Esq. Subin AS~OCS., LLP 29 1 Broadway, 9IhFl. New York, NY 10007 2 12-285-3800 For Con Ed: Alexander C. Aviles..Ess. . F5chard W. Babinecz 4 Irving Pl., b 1800 . New York, NY 10003-3598 212460-3355 F1LED c For Felix Aasocs.: Paul A. Eschmm, Esq. Ahmuty, Derners & McManus, Esqs. 2oo Albertson, NY 11507 Wil'etsRd' 516394-5433 JAN 09 2012 For Greco Bros.: Vincent P. Crisci, Esq. Crisci, Weisor & H u e k c NEW YORK 17 State St., 8* F1. CQUNn CLERKs OFFICENew York, NY 10004 212-943-8940 By notice of motion dated May 23,201 1, defendant Felix Associates, LLC (Felix) moves pursuant to CPLR 3212 for an order summarily dismissing the complaint and all cross claims against it. Plaintiff opposes. By notice of motion dated June 3,20 11, defendant Greco Brothers Ready Mix Concrete Inc. (Greco) moves pursuant to CPLR 32 12 for an order summarily dismissing the complaint and all cross claims against it. Plaintiff opposes. By notice of cross motion dated August 12,201 1 and submitted on default, defendant [* 3] Consolidated Edison Company of New York, Inc. (Con Ed) moves pursuant to CPLR 3212 for an order summarily dismissing the complaint and all cross claims against it. By notice of motion dated September 14, 201 1 and submitted on default, plaintiff moves for an order extending her time to file a note of issue. The motions are consolidated for decision. I. PFRTTINENT BACKGROUND On November 19,2006, plaintiff was allegedly injured when she tripped in a hole and fell in the street and crosswalk located at the intersection of Henry and Catherine Streets in M n a t n (Affirmation of Paul A. Eschmann, Esq., dated May 23,201 1 [Eschmann Aff.], Exh. ahta. A). On or about June 6, 2007, plaintiff commenced an action against defendants City and the New York City Department of Transportation (collectively, City). (Id.). On or about November 13,2008, plaintiff commenced a second action against the remaining defendants, and by decision and order dated February 4,201 0, the two actions were e c consolidated. ( I d , Exhs. B, E). In plaintiffs bill of particulars dated November 30,2009, she alleges that her accident occurred at or about the southern crosswalk at the intersection of Henry and Catherine Streets. (Id., Exh. I). By affidavit dated February 8,20 11, Con Ed employee George A. Canzaniello states that he fruitlessly searched Con Ed s records for opening tickets, paving orders, emergency tickets, and complaints for the accident location for the two years before and including plaintiffs accident. ( I d , Exh. L). At an examination before trial held on April 8, 201 1, plaintiff testified that she was 2 C [* 4] walking on Catherine Street and crossed over to Henry Street, where her foot became trapped in a hole around the middle of the street, causing her to fall. She observed no construction in the area. ( I d , Exh. J). By affidavit dated May 12,20 11, John Breslin, Felix s vice president, states that a search of Felix s records for work performed between 2003 and November 19,2006 reflects that Felix performed no work at the intersection of Henry and Catherine Streets, specifically the southern crosswalk, In the affidavit, Breslin states that he was duly sworn, and the affidavit is duly notarized. (Id,Exh. K). By affidavit dated June 1,20 11, Joseph Greco, Oreco s president, attests that he fruitlessly searched Greco s work records for the accident location, that Greco only delivers wet concrete and performs no work related thereto, and that Greco made no concrete deliveries to the location. Greco also states that he was duly sworn, and the affidavit is duly notarized. (Affmnation of Vincent P. Crisci, Esq., dated June 3,201 1 [Crisci Aff.]). c r u, FFTJX S MOT1ON pi, Con- Felix denies having performed any work at the accident location, or otherwise controlling or maintaining it. (Eschmann Aff.). Plaintiff contends that Breslin s affidavit is inadmissible, and that Felix has thus failed to support its motion with admissible evidence. She also argues that the records search was insufficient absent a post-accident search as work may have been performed before the accident in anticipation of Felix s work after the accident, and because Bresliii did not personally conduct the search or authenticate the records as business records. Moreover, she maintains that having 3 [* 5] failed to mention that Felix was a Con Ed contractor, Canzaniello does not establish that Felix performed no work at the location and that, in any event, no Felix employee has yet been deposed. (Afirmation of Herbert Subin, Esq,, dated Aug. 17,201 1 [Subin Aff.]). In reply, Felix asserts that plaintiff submits no proof showing that it performed any work at the location, that Breslin s affidavit is admissible as he swore to the truth of its contents when he signed it before a notary, and that plaintiff hlrs failed to show that further discovery is necessary. (Reply Affirmation, dated Aug. 22,20 11). J3, Analvsi? A contractor may be held liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk. (Cino v City ofNew York, 49 AD3d 796 [2d Dept 20081). Here, Felix has offered admissible evidence demonstrating that it performed no work at the location of plaintiffs accident, specifically the southern crosswalk at the intersection of Henry and Catherine Streets, thus establishing, prima facie, that it did not B C create the defect which caused plaintiffs accident. (See Amarosa v City of New York, 5 1 AD3d 596 [1st Dept 20081 [contractor met burden by submitting affidavit from manager stating that records showed no work at location]; Melcher v City ofNew York,38 AD3d 376 [13 Dept 20071 [contractor established that it performed no construction work where accident occurred]; Arrucci v City ofNew York, 45 AD3d 617 [2d Dept 20071 [contractor submitted affidavit from offcer attesting that it performed no work at location]; Flores Y City uflvew Yurk,29 AD3d 356 [Ist Dept 20061 [contractor showed it did not perform work where plaintiff allegedly fell]; Robinson v City ofNew York, 18 AD3d 255 [ lSt Dept ZOOS] [no evidence that contractors performed any work where plaintiff fell]). 4 [* 6] In opposition, plaintiff submits no evidence showing that there are triable issues as to whether Felix performed work at the location, and there is no merit to plaintiffs argument that Breslin s affidavit is inadmissible, as he was duly sworn and the notary averred that it had been sworn before him. (See Furtow v Jenstro Enter., Xnc.,75 AD3d 494 [2d Dept 20101 [finding affidavit admissible as affiant recited that he had been duly sworn and it contained jurat stating that it had been sworn to before notary public]; see also Sparaco v Sparaco, 309 AD2d 1029 [3d Dept 20031, lv denied 2 NY3d 702 [2004] [court did not err in accepting afidavit, in which affiant stated that he had been sworn, where notary notarized afidavit but omitted sworn before me language in jurat]; Faustini v Palladino, 280 AD2d 291 [l Dept 20011 [defendant s sworn affidavits constituted evidence in admissible form]). Plaintiffs assertion that further discovery may lead to relevant evidence is speculative and without evidentiary basis. (CPLR 3212[fl; see Flores v City o New York,66 AD3d 599 [lst f Dept 20091 [%e mere hope that evidence sufficient to defeat a motion for summary judgment c c may be uncovered during the discovery process is insufficient to deny such a motion ]; Rubina v City ofNew York, 5 1 AD3d 761 [2d Dept 20081 [no evidentiary basis showing that further discovery may lead to relevant evidence concerning whether contractor created defect]; Arrucci, 45 AD3d at 6 17 blaintiffs failed to establish what additional facts might be disclosed which would demonstrate that issue of fact existed as to whether contractor did work on roadway]). 1 1 GRECO S MOTION 1, A, Contentions Greco denies having performed any work at or delivering any concrete to the location, and argues that even if it delivered concrete there, it provided BO services or engaged in any 5 [* 7] I activities that would have caused the hole in which plaintiff fell. (Crisci Aff.). Plaintiff asserts that Greco s affidavit is inadmissible and that he did not specify what records he searched or authenticate them as business records, and that she should have the opportunity to depose a Greco employee. (Subin Aff.). In reply, Greco argues that plaintiff offers no evidence that Greco may be held liable here, and that Greco s afidavit is admissible. (Reply Affirmation). For the same reasons as set forth above (supra,II.B), Greco has established its prima facie entitlement to dismissal, and plaintiff has raised no triable issue or demonstrated a need for further discovery from Greco. N.CONED SMOTION Based on Canzaniello s affidavit, Con Ed has established, prima facie, that it perfomed no work at the location of plaintiffs accident, and plaintiff offers no evidence showing the e c existence of a triable issue as to Con Ed s liability. V. PLAINTIFF S MOTION Absent any dispute that previously scheduled examinations before trial have not yet been completed, plaintiffs motion to extend her time to file a note of issue is granted. VI, CONCLUSION Accordingly, it is hereby ORDEWD, that defendant Felix Associates, LLC s motion for summary judgment is granted, and the complaint and any cross claims are dismissed against said defendant with costs and disbursements to defendant as taxed by the clerk of the court upon the submission of an 6 [* 8] appropriate bill of costs, and the clerk of the court is directed to enter judgment accordingly; it is further ORDERED, that defendant Greco Bros. Ready Mix Concrete Co. Inc. s motion for summaryjudgment is granted, and the complaint and any cross claims me dismissed against said defendant with costs and disbursements to defendant as taxed by the clerk of the cowt upon the submission of an appropriate bill of costs, and the clerk of the court is directed to enter judgment accordingly; it is further ORDERED, that defendant Consolidated Edison Company of New York, Inc. s motion for summary judgment is granted, and the complaint and any cross claims are dismissed against said defendant with costs and disbursements to defendant as taxed by the clerk of the court upon the submission of an appropriate bill of costs, and the clerk of the court is directed to enter judgment accordingly; and it is further ORDERED, that plaintiffs motion to extend the time to file a note of issue is granted, t and plaintiff is directed to file her note of issue on or before February 1,2012. ENTER: DATED: December 29,20 11 New York, New York JAN 00 2012 NEW YORK COUNTY CLERK S OFFICE 7

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.