Theresa v City of New York

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Theresa v City of New York 2012 NY Slip Op 32563(U) October 4, 2012 Supreme Court, New York County Docket Number: 106718/2011 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. - [* 1] ANNEDON 1011012012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Justice Index Number : 106718/2011 STEINKOLK, THERESA vs. CITY OF NEW YORK SEQUENCE NUMBER : 001 - SUMMARY JUDGMENT T INDEX NO, MOTION DATE ,p c ~ L - MOTION SEP.NO. aJ / I ,were read on this motion tolfor The following papers, numbered I to Notice of MotionlOrder to Show Cause Answering Affidavits - Affidavits - Exhibits IN - Exhibits o ( s ) . . L 2 Replying Affidavits Upon the foregoing papers, it is ordered that this motion is OCT 10 2012 o@f 0 4 2012 I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .............. 0CASE DISPOSED MOTION I: S GRANTED 0DENIED ................................................ f SETTLE ORDER 0DO NOT POST B~ON-FI DISPOSITION GRANTED IN PART OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Index No. 106718/11 Argued: Motion seq. no.: Plaintiff, 512911 2 00 1 -against- DECISION AND ORDER THE CITY OF NEW Y O N , CONSOLIDATED EDISON and EMPIRE CITY SUBWAY, Defendants. FILED ____-"f___l_____________rlrr__l_________---------------------------- BARBARA JAFFE, JSC: : I For plaintiff: Mark Halberstam, Esqt 1435 Coney Island Ave. Brooklyn, NY 11230 718-377-7337 X I i t or ECS: OCT I C ) 2012 m-YoRu C LM C OI U , 0 - atthew Matera, Esq. Fonway, Farrell et al. ,'Forty Eight Wall St. ;; ig ; looo5 By notice of motion dated March 9,20 12, defenddt Empire City Subway Company (ECS) moves pursuant to CPLR 3212 for an order summarily dismissing the complaint and any cross claims against it or, in the alternative, compelling plaintiff to respond to discovery. Plaintiff opposes. Plaintiff alleges that on May 8, 2010, she tripped and fell in a pothole located approximately 18 inches east of the northwest corner of the intersection of 30fhStreet and 9Ih Avenue in Manhattan. (Affirmation of Matthew Matera, Esq., dated Mar. 9, 2012 [Matera Aff.], Exh. C). ECS denies having performed any work at the accident location before plaintiffs accident, and asserts that while plaintiff provided a permit issued it before plaintiff's accident, its records show that it performed work after the accident and in a different part of the intersection. [* 3] 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 Ct ofNew York,49 iy AD3d 796 [2d Dept 20081). Here, ECS has offered admissible evidence demonstrating that it performed no work at the location of plaintiffs accident before the accident, thus establishing, prima facie, that it did not create the defect at issue. (See Gueli v City of New York, 92 AD3d 840 [2d Dept 20121 [contractor submitted affidavit from employee stating that it had no records showing work performed at accident location before accident, and other documents showed work was performed near location after accident]; Amarosa v Ct oflvew York, 5 1 AD3d 596 [ 1'' Dept iy 20081 [contractor met burden by submitting affidavit from manager stating that records showed no work at location, and even if other contractor performed work at location, no evidence that its work was proximate cause of pothole 400 feet away from its work]; Flores v C & of New York, i 29 AD3d 356 [lstDept 20061 [ECS demonstrated it did not perform work where plaintiff allegedly fell as its records showed it performed work on different corner of crosswalk than iy where plaintiff fell]; Robinson v Ct oflvew York, 18 AD3d 255 [lstDept ZOOS] [although contractors performed work on street, no evidence that work was performed at location of plaintiffs fall]; see also Arias v Skyline Windows, Inc., 89 AD3d 460 [lst Dept 201 11 [affidavit indicating search of business records had demonstrated negative findings admissible and can substantiate movant's summary judgment burden]). In opposition, plaintiff submits no proof showing that a triable issue of fact exists as to whether ECS performed work at the location of her accident. (See Siege1 v Ct ofNew York, 86 iy AD3d 452 [1'' Dept 201 13 [rejecting plaintiffs argument that proximity of ECS conduit to alleged defect raised triable issue as to whether ECS' work caused defect]; Minier v Ct ofNew iy 2 [* 4] York, 85 AD3d 1134 [2d Dept 201 11 [plaintiffs only evidence was permit issued to contractor which did not encompass area where plaintiff fell]; Elkman v Consol. Edison oflvew York, 7 I AD3d 817 [2d Dept 20101 [plaintiff failed to raise triable issue as to whether defendants performed work in area of sidewalk where accident occurred]; Flores, 29 AD3d at 356 [ (a)t best, plaintiff demonstrated that ECS was present at the site some eight months before plaintiffs fall, which is insufficient to raise a triable issue of fact as to whether ECS worked in the crosswalk where plaintiff fell ]). Plaintiffs assertion that further discovery may lead to relevant evidence is speculative and without evidentiary basis. (CPLR 3212[fl; see Flores v City ufNew York, 66 AD3d 599 [lst Dept 20091 r the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion ]; Rubina v City ofNew Yurk, 5 1 AD3d 761 [2d Dept 20081 [no evidentiary basis showing that further discovery may lead to relevant evidence concerning whether contractor created defect]; ArruccE v City oflvew York, 45 AD3d 61 7 [2d Dept 20071 [plaintiffs 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]). Accordingly, it is hereby ORDERED, that defendant Empire City Subway s motion for summary judgment is granted, and the complaint and any cross claims are dismissed against defendant Empire City Subway 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; it is further 3 [* 5] ORDERED, that the remainder of the action shall continue, and the DCM clerk is directed to schedule a preliminary conference in this matter and notify the parties accordingly. x ENTER: Barbara Ja e, J DATED: October 4,2012 New York, New York OCT 10 2012 ".*.._ j 4

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