Ellington v Consolidated Edison, Inc.

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Ellington v Consolidated Edison, Inc. 2013 NY Slip Op 32082(U) September 4, 2013 Supreme Court, New York County Docket Number: 116834/05 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. PAUL WOOTEN PART Justice 7 INDEX NO. MOTION SEQ. NO. BELLEROSE INC. and 008 D & S RESTORATION, INC., / Defendants. this motion by defendant for summary 1 ce o Motion/ Order to Show Cause -Affidavits f - Exhibits ... I PAPERS NUMBERED ering Affidavits - Exhibits (Memo) Reply Affidavits ross-Motion: - Exhibits (Memo) 0Yes ; 9 No NEW YORK Rebecca B. Ellington (plaintiff) brings t~)l&+fgn$&ERKS ton against t e I njury ac i q . m, onsolidated Edison, Inc., Empire City Subway Company Ltd. (Empire City), et al. (collectively ndants) to recover for injuries allegedly sustained when she tripped and fell on a raised and ven condition on the sidewalk of 68'hStreet 30 yards west of Lexington Avenue, New York, (the premises). Discovery is not complete and the Note of Issue has not been filed. Before Court is a motion by Empire City for summary judgment, pursuant to CPLR 3212, ismissing the complaint as asserted against it. Plaintiff has responded in opposition to the BACKGROUND In support of its motion, Empire City submits the Affirmation of its attorney Darrell John, intiff's amended Summons and Complaint, Empire City's Verified Answer, plaintiff's Verified Page 1 of 5 [* 2] ination Before Trial (EBT) of Plaintiff, EBT of Consolidated Edison, EBT of Warren George Inc., EBT of Greenlsle Contracting, EBT of D&S Restoration, Inc., graphs submitted by defendant of 681h Street, New York, NY, Affidavit of Calvin Gord,on, oogle Maps photo printout of the premises.' The relevant portion of plaintiff's complaint alleges that moving defendant's negligence, s caused her alleged injury. Plaintiff alleges the premises was in angerous and unsafe condition and defendants negligently and carelessly permitted the ises to be and remain in an unsafe and dangerous condition in allowing and/or causing creating the concrete pavement of said sidewalk to be raised, uneven, and separated ended Verified Complaint at 745-47). Plaintiff testifies that she was exiting the West crossing 68Ihstreet towards the North Building at the time of cident (Notice of Motion, exhibit E, 716). n response to plaintiff's claims, Empire City avers the claim against it should be d because it did not do work on the premises or own a facility there. On August 3, arc Soto (Soto) testified on behalf of Empire City. Empire City holds franchises in the system of manholes and conduits for telecommunication ies to run their telecommunication cables (see EBT of d o , exhibit J, p. 19). Soto d that Empire City performed a search for work records for the intersection of 68'h Street ington Avenue including each block north, south, east, and west of the intersection for d of three years prior to and including the date of the accident (id. at p.8-9). Soto did not locate any work records as a result of the search (id. at Thereafter, Calvin Gordon (Gordon), an employee of Empire City, performed his own At oral arguments on April 3, 2013, Empire City made an oral application to withdraw exhibit M, is a Google Maps photo printout, without opposition The Court granted this application and the t M was not considered in deciding this motion. Page 2 of 5 [* 3] search of Empire City s records (Notice of Motion, exhibit L). Gordon avers that the only Empire City located on the south side of the block of 68 h Street that is west of the intersection Street and Lexington, is a conduit that was installed in 1929. Specifically, Gordon f 68th testifies that the conduit enters the Hunter College building 6 fo@ 4 inches west of the east ing line, after running under the south sidewalk for a length of 42 feet south of the southerly curb line of 68 h Street In opposition, plaintiff submits an Affirmation in Opposition and a Response to ndant s Combined Demands. In reply, Empire City avers that plaintiff s opposition papers re not sufficient to raise any triable issues of fact. STANDARD Summary judgment is a drastic remedy that should be granted only if no triable issues of t exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect sp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 119741). The party ing for summary judgment must make a prima facie showing of entitlement to judgment as atter of law, tendering sufficient evidence in admissible form demonstrating the absence of terial issues of fact (see Winegrad v New Yorh Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; LR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of ufficiency of the opposing papers (see Smalls v AJI lndus. Inc., 10 NY3d 733, 735 [2008]). a prima facie showing has been made, however, the burden shifts to the nonmoving y to produce evidentiary proof in admissible form sufficient to establish the existence of aterial issues of fact that require a trial for resolution (Giuffrda v Citibank Corp., 100 NY2d , 8 1 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR When deciding a summary judgment motion, the Court s role is solely to determine if y triable issues exist, not to determine the merits of any such ipues (see Sillman v Twentieth Page3of 5 [* 4] Centruy-fox Film C o p , 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all nable inferences that can be drawn from the evidence (see Negri v Stop & Shop, lnc., 65 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary , dgment should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [I 9781). DISCUSSION The Court finds that through the submission of documentary evidence, Empire City has its prima facie burden of establishing that it has not done any work in the premises where aintiff fell. Plaintiff's Verified BP states that she tripped on the south side of 68'h Street, 30 yards from the Southwest Corner of 68'hStreet and Lexington Avenue (see Notice of tion, exhibit D, No. 6 and 8). There is no evidence before the Court, however, that ishes Empire City has done work at this location. Gordon, a Specialist at Empire City, /- at he conducted a search of Empire City records for any construction work performed lock of 68'h Street, and he only found a facility located on the south side of the block of treet, where a conduit was installed in 1929. Moreover, this conduit enters the Hunter College building 6 feet 4 inches west of the east building line after running under the south alk for a length of 42 feet south of the southerly curb line of 68th Street. In opposition, the evidence plaintiff puts forth, including a permit issued to Empire City in onduit work in the area of the intersection of Lexington Avenue and 68'hStreet, is ient to raise an issue of fact. Specifically, the uncontroverted evidence shows that ire City did not perform any work at the aforementioned location of the accident under the ermit and did not have any facilities in the location because Empire City's conduit is not d where the plaintiff tripped, thus establishing that Empire City owed no duty of care to the plaintiff (see Scurti v City of New Yo&, 40 NY2d 433, 438 [1976]). Further, there is nce that the Dormitory Authority of the State of New York did sidewalk replacement on the Page4of 5 [* 5] / 68IhStreet between Lexington Avenue and Park Avenue in 1998, after the Empire City s conduit in 1929 (see Notice of Motion, exhibit I, p.20-21) . As such, motion for summary judgment dismissing the complaint is granted. CONCLUSION For these reason and upon the foregoing papers, it is, ORDERED that defendant Empire City Subway Company s motion for summary ment, pursuant to CPLR 3212, dismissing the complaint and any cross-claims asserted it is granted; and it is further, ORDERED that counsel for Empire City Subway Company is directed to serve a copy of this Order, with Notice of Entry, upon all parties and upon the Clerk of the Court who is directed enter judgment accordingly; and it is further, ORDERED that the remaining parties are directed to appear at the already scheduled s Conference at 11:OO a.m. on September 25, 2013, at 60 Centre Street, Part 7, Room This constitutes the Decision an+ +. q, M{3 J (----- - fir^-- -c A,-- - CQU / Page5of 5 - ma... .-.

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