Cron v City of New York

[*1] Cron v City of New York 2017 NY Slip Op 50658(U) Decided on May 17, 2017 Supreme Court, New York County Reed, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2017
Supreme Court, New York County

Loretta Cron, Plaintiff,

against

The City of New York, Consolidated Edison Company of New York, Inc. and Empire City Subway Company, Defendants.



Consolidated Edison Company of New York, Inc., Third-Party Plaintiff,

against

Danella Construction of NY, Inc., Third-Party Defendant.



114535/11



For Plaintiff:

Levine & Wiss, PLLC

510 Hempstead Turnpike, #206

West Hempstead, NY 11552

For Defendant City of New York:

McManus Richter Adams & Aposolakos, PLLC

48 Wall Street, 25th Floor

New York, NY 10005

For Defendant Empire City Subway Co:

LAW OFFICES OF LEON KOWALSKI

12 Metrotech Center, 28th Floor

Brooklyn, NY 11201

For Defendant/Third Party Plaintiff Con Ed:

Law Offices of David Santoro

4 Irving Place

New York, NY 10003 For Third Party Defendant Danella Construction:

McElroy, Deutsch, Mulvaney & Carpenter, LLP

88 Pine Street, 24th Floor

New York, NY 10005
Robert R. Reed, J.

Motion sequence numbers 005, 006, 007, and 008 are consolidated for disposition.

In this action for personal injuries, plaintiff Loretta Cron (Cron or plaintiff) alleges that, on October 4, 2010, she tripped and fell near the curb on the southwest corner of the intersection of East 58th Street and Lexington Avenue in Manhattan. Cron alleges that her accident was caused by a defective condition in the crosswalk and curb.

Defendant/third-party plaintiff Consolidated Edison Company of New York, Inc. (Con Ed) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it (motion sequence number 005).

Defendant Empire City Subway Company (Limited) i/s/h/a Empire City Subway Company (Empire) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it (motion sequence number 006).

Defendant The City of New York (the City) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint with prejudice, along with all cross claims and counterclaims against it. Alternatively, the City moves for: (1) summary judgment on its cross claims for contractual indemnification against Con Ed and Empire; and (2) leave to serve a cross claim for common-law indemnification against third-party defendant Danella Construction of NY, Inc. (Danella), to deem said cross claim served, and for summary judgment on said cross claim (motion sequence number 007).

Third-party defendant Danella moves, pursuant to CPLR 3212, for summary judgment dismissing all claims and cross claims against it (motion sequence number 008).

BACKGROUND

Cron commenced this action on December 28, 2011 against the City, Con Ed, and Empire, alleging that she "was caused to trip and fall on a raised, depressed, uneven, broken, unsafe, dangerous and obstructed portion of the curb and crosswalk" at the intersection of Lexington Avenue and 58th Street (verified complaint, ¶¶ 44, 45). She further alleges that the City had notice of the defect based upon a notation in a Big Apple Pothole and Sidewalk Corporation (Big Apple) map (id., ¶ 48). Additionally, the complaint alleges that "defendants created the defective condition which caused plaintiff's fall and said condition was defective upon its creation" (id., ¶ 49), and that defendants made a special use of the sidewalk (id., ¶ 50).

In its amended answer, the City asserted cross claims for indemnification and contribution against Con Ed and Empire (City's amended answer, first, second, third, fourth, fifth cross claims).

On August 15, 2014, Con Ed brought a third-party action against Danella, asserting the following claims: (1) contractual indemnification; (2) common-law indemnification; (3) contribution; and (4) failure to procure insurance (verified third-party complaint, first, second, third causes of action).

Cron testified at her General Municipal Law § 50-h hearing that she was injured at about 5:30 p.m. on October 4, 2010 (plaintiff 50-h hearing tr at 6, 7). She stated that it was misty and raining at the time (id. at 7). According to Cron, as she was crossing the street, she "felt [herself] go into a swale [or depression], and the[] next thing she knew, [she] was in the ground" (id. at 13). She indicated that her accident happened when she was "[a]bout a foot or two from the curb" (id. at 12).

At her deposition, Cron stated that the accident happened "[w]ithin the crosswalk," closer to the southwest corner of the intersection (plaintiff deposition tr at 15). She stated that she slipped and tripped with her left foot, causing her to fall forward (id. at 17). After she fell, she saw a depression in the street before the curb (id.). She stated that after she fell, she "looked up to see what happened . . . all of a sudden [she] was down on the ground and [she] knew [she] was just going to get onto the sidewalk and [she] saw something that looked like a depression and . . . went, like, oh, my God, that's probably what happened" (id. at 26-27). Cron was unsure whether she tripped on the depression or slipped on the water or something else (id. at 27). In an errata sheet, Cron stated that the she slipped or tripped "[a]t the curb," on "[her] last step before the sidewalk where roadway (street) meets curb," and "[w]here the roadway (street) meets the curb right before [the] sidewalk" (Adams affirmation in support, exhibit T).

Fulu Bhowmick (Bhowmick), an employee of the New York City Department of Transportation (DOT), avers that she conducted an intersection search and a segment/block search, for the intersection of East 58th Street and Lexington Avenue for the two years prior to and including October 4, 2010 (Bhowmick aff, ¶¶ 3, 5). She performed searches for records of permits; applications for permits; corrective action requests (CARs); notices of violation (NOVs); inspections; contracts; maintenance and repair orders; complaints; gangsheets for roadway work; and milling and resurfacing records for 58th Street between Lexington and Park Avenues (id.). Bhowmick states that the searches revealed a combined 83 street opening permits; 10 CARs; 13 NOVs; 77 inspections; one maintenance and repair order; six complaints; one gangsheet for roadway defects; and 18 gangsheets for milling and resurfacing records (id.). According to Bhowmick, the City did not have prior written notice of any defective condition at the location of Cron's accident (id.).

Gre-Talan Oneza (Oneza), a supervisor highway repairer employed by the City, testified that the City performed milling work at the intersection of 58th Street and Lexington Avenue in 2009 (Oneza tr at 7, 79-85). The project was completed on May 15, 2009 (id. at 85).

The City issued a street opening permit to Con Ed for the period from October 1, 2009 through December 31, 2009 (Adams affirmation in support, exhibit BB).

By purchase order number 829510 dated May 15, 2008, Con Ed retained Danella to perform certain steam repair work (id., exhibit KK).

Michael Campanelli (Campanelli), a construction inspector employed by Con Ed, testified that Con Ed performed an excavation at the southwest corner of Lexington Avenue and East 58th Street on October 22, 2009 (Campanelli tr at 8, 31-33). On October 22, 2009, Con Ed excavated to a cooling chamber and exposed some pipe (id. at 33). Danella performed the concrete work, and restored the sidewalk on November 4, 2009 (id. at 41-42). According to Campanelli, on October 28, 2009, the asphalt around the plywood that was covering the excavation had fallen into the excavation (id. at 38). The excavation site was about a half foot [*2]from the corner (id. at 44). A Con Ed steam operations report indicates that Danella's "Restoration Crew Built & Poured Housing Then Fully Restored Sidewalk" (Adams affirmation in support, exhibit DD). In addition, a Con Ed report of street and/or sidewalk openings dated October 30, 2009 indicates that the area was "opened + restored by Danella" (id., exhibit EE). Campanelli testified that this Con Ed report was a "report of an open ticket, open job" (Campanelli tr at 34).

Charles Dunbar (Dunbar), a general utility worker employed by Con Ed in 2009, testified that, on October 28, 2009, he and another Con Ed employee installed asphalt around the plywood decking and two barricades near Danella's excavation on the southwest corner of the intersection (Dunbar tr at 10, 21-22). He did not perform any excavation or digging work (id. at 44).

Charles Agro (Agro), a superintendent employed by Danella, testified at his deposition that Danella excavated a 10-foot-long by six-foot-wide trench at the corner of 58th Street and Lexington Avenue (Agro tr at 9, 64-65). Danella's work was done six inches from the curbline (id. at 80). Danella filled the edges of the plywood with temporary "mac," a cold patch (id. at 86). After reviewing photographs of the area of the accident, Agro stated that the asphalt work was not performed by Danella (id. at 106). Danella's work was on the sidewalk in the lefthand corner of the photograph (id. at 107). Danella did not touch the curb (id. at 114). Agro stated, based upon his review of a photograph, that he believed that the City "dug into the curb a little bit" during the milling process (id. at 129).

The City issued a street opening permit to Empire for the period from July 13, 2010 through August 1, 2010 to perform "[i]ntersection cutting" at East 58th Street and Lexington Avenue (Adams affirmation in support, exhibit FF). Another street opening permit was issued to Empire for "[c]utting VCL to side of 720 Lex" (id., exhibit GG). The City issued additional street opening permits to Empire for "[i]ntersection cutting" at the intersection of 58th Street and Lexington Avenue for the period of August 8, 2010 to September 26, 2010 (id., exhibit HH), and for "[c]utting VCL to side of 720 Lex" for the period of August 8, 2010 to September 26, 2010 (id., exhibit II).

Empire's construction manager, Daniel Tergesen (Tergesen), testified that Empire performed work on the north side of 58th Street between Park and Lexington Avenues, which went west from Lexington Avenue approximately 60 to 63 feet, and then crossed 58th Street continuing south to 720 Lexington Avenue (Tergesen tr at 9, 20-21). Tergesen stated that Empire's work was performed in the middle of two blocks and not at a corner or an intersection (id. at 21). None of Empire's work reached the intersection of 58th Street and Lexington Avenue (id.).

In an affidavit, Margaret Pendarvis (Pendarvis), a supervisor of DOT's records management unit, states that several of DOT's facilities sustained significant flood damage during Superstorm Sandy on October 29, 2012 (Pendarvis aff, ¶ 2). Pendarvis states that hard copy permits and permit applications for the years 2006 through 2012 were destroyed as a result of the extensive flooding (id., ¶ 3).

Previously, the City moved to dismiss the complaint in its entirety for failure to comply with General Municipal Law § 50-e (6) or, in the alternative, for leave to amend its answer. On June 18, 2013, the court (Mills, J.) denied the City's motion to dismiss and permitted the City to serve an amended answer (Adams reply affirmation, exhibit PP). On appeal, the First [*3]Department affirmed the denial of the City's motion, explaining that "[t]he motion court properly determined that the original notice of claim, together with plaintiff's testimony at the 50—h hearing, sufficiently set forth the location of her accident to satisfy the requirements of General Municipal Law § 50—e (2), since it provided 'information sufficient to enable the city to investigate'" (Cron v City of New York, 121 AD3d 601, 601 [1st Dept 2014] [citations omitted]).

The City also moved to preclude Cron's usage of the errata sheet to her deposition or to compel Cron to appear for a further deposition. By decision and order dated September 15, 2014, the court (Mills, J.) denied the City's motion, because Cron provided adequate reasons for the changes to her testimony, and because the corrections did not appear to be patently untrue or tailored to avoid the consequences of her earlier testimony.

Cron filed the note of issue and certificate of readiness in this action on July 8, 2016.

DISCUSSION

"It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Pullman v Silverman, 28 NY3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action" (Cabrera v Rodriguez, 72 AD3d 553, 553-554 [1st Dept 2010]). On a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]).

Cron's Negligence Claim Against the City and Cross Claims and Counterclaims Against the City

The City contends that Cron cannot show that any alleged negligence of the City was the proximate cause of her injuries. In addition, the City argues that it did not have prior written notice of any defect at the location of the accident. As support, the City relies upon Bhowmick's affidavit, and submits a Big Apple map of the intersection, which purportedly does not show any defect outside the curb (Adams affirmation in support, exhibit E).

Cron "concedes that based upon the proof adduced to date there is no prior written notice of the specific defect which caused plaintiff's fall. Plaintiff instead relies on the affirmative negligence exception to prior written notice," and states that "it is conceded that the City has proven on the evidence to date, that it did not receive prior written notice of the alleged defect . . ." (Ferrante affirmation in opposition at 14, 18). However, at the same time, Cron also argues that the City failed to meet its burden as to its lack of prior written notice (id. at 15-18). Cron further contends that there are issues of fact as to whether the defect was caused by the City's milling and resurfacing activities in 2009.

At the outset, the court notes that Cron's concession that the City did not have prior written notice of the specific defect is binding on her (see Russell v Gaines, 209 AD2d 939, 940 [4th Dept 1994], lv denied 1995 WL 42508 [4th Dept 1995] [defendant's concession in a motion for summary judgment "constitutes a judicial admission that is binding on defendant"]; Pok Rye [*4]Kim v Mars Cup Co., 102 AD2d 812, 812 [2d Dept 1984] ["counsel for plaintiff admitted, in effect, that the allegations of the complaint asserted against appellant Young were untrue and that the proximate cause of his client's injury, discovered after investigation, was solely the act or acts of the defendant Mars"; "[s]uch statement . . . constituted a judicial admission binding on the plaintiffs"]; see also Jerome Prince, Richardson on Evidence § 8-215 [Farrell 11th ed 1995]).

The court next considers whether Cron only offers speculation as to the cause of her fall.

"It is well settled that a defendant is entitled to summary judgment as a matter of law when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury" (Siegel v City of New York, 86 AD3d 452, 454 [1st Dept 2011]; see also Morrissey v New York City Tr. Auth., 100 AD3d 464, 464 [1st Dept 2012]; Washington v New York City Bd. of Educ., 95 AD3d 739, 739-740 [1st Dept 2012]). "While plaintiff's evidence need not positively exclude every possible cause of his fall other than the alleged . . . defects, it must be sufficient to permit a finding of proximate cause based on logical inferences, not speculation" (Reed v Piran Realty Corp., 30 AD3d 319, 320 [1st Dept 2006], lv denied 8 NY3d 801 [2007]).

Contrary to the City's contention, Cron consistently identified the area where the accident happened and the defect in her testimony. Cron testified at her 50-h hearing that her accident happened "[a]bout a foot or two from the curb," when she tripped or slipped on a "little bit of a swale" or depression (plaintiff 50-h hearing tr at 12, 13). At her deposition, Cron testified that, as she approached the southwest corner of the intersection, she felt herself slip and trip and fall forward (plaintiff deposition tr at 16, 17). After she fell, she saw a depression in the street before the curb (id. at 17). She testified that she "was just about to get onto the sidewalk and [she] saw something that looked like a depression and [she] kind of went like this and . . . [she] went, like, oh, my God, that's probably what happened" (id. at 26-27). In an errata sheet, she indicated that the depression was at the curb, where the roadway meets the curb (Adams affirmation in support, exhibit T). Cron also circled the depression in a photograph at her deposition, and testified that the photograph accurately depicted the depression where she slipped and tripped (plaintiff deposition tr at 23; Ferrante affirmation in opposition, exhibit A). Therefore, a finding that the depression caused her fall would not be based upon sheer speculation.

Thus, the court must determine whether the City has sufficiently shown that it may not be held liable under the relevant statute.

Section 7-201 (c) (2) of the New York City Administrative Code, known as the Pothole Law, provides as follows:

"No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street . . . sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice . . ."

(Administrative Code of City of NY § 7-201 [c] [2]).

"Administrative Code of the City of New York § 7-201 (c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location" (Katz v [*5]City of New York, 87 NY2d 241, 243 [1995]). "[P]rior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City" (id.). "'Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. and filed with the [DOT] serve as prior written notice of defective conditions depicted thereon'" (Fleisher v City of New York, 120 AD3d 1390, 1391 [2d Dept 2014], quoting Katz, 87 NY2d at 243).

The Court of Appeals has recognized two exceptions to the statutory rule requiring prior written notice: (1) "where the locality created the defect or hazard through an affirmative act of negligence"; and (2) "where a 'special use' confers a special benefit upon the locality" (Oboler v City of New York, 8 NY3d 888, 889 [2007] [internal quotation marks and citation omitted]). "[T]he affirmative negligence exception 'is limited to work by the City that immediately results in the existence of a dangerous condition'" (Yarborough v City of New York, 10 NY3d 726, 728 [2008], quoting Oboler, 8 NY3d at 889).

The development of a dangerous condition as a result of wear and tear does not constitute an affirmative act of negligence (see Yarborough, 10 NY3d at 728).

In Gonzalez v City of New York (268 AD2d 214, 215 [1st Dept 2000]), the plaintiff's vehicle collided with a tree alongside a roadway, and plaintiff subsequently sued the City for negligence. Her case against the City rested on two roadway defects: a "drop off" at the right edge of the roadway, and the absence of guardrails to protect motorists from colliding with trees (id.). The First Department held that "the prior written notice requirement of the 'pothole law' (Administrative Code of City of NY § 7-201 [c] [2]) does not apply, because the 'drop off' was created by the City's affirmative act of resurfacing the roadway next to the deteriorated curb" (id.). The Court explained that the City's moving papers failed to show the absence of the conditions asserted by the plaintiff (id.).

In Cruz v City of New York (218 AD2d 546, 548 [1st Dept 1995]), the First Department found an issue of fact as to whether the City had created the alleged defect in a roadway. There, the Court noted that the City repaved the highway shortly after the accident happened, and that "[t]he City does not maintain that anyone else was responsible for repaving the road surface" (id.).

Here, the City has failed to demonstrate that it did not create the hazard through an affirmative act of negligence. "Where, as here, the plaintiff has alleged that the affirmative negligence exception applies, the [City] was required to show, prima facie, that the exception does not apply" (Kelley v Incorporated Vil. of Hempstead, 138 AD3d 931, 933 [2d Dept 2016]). The City only argued in its moving papers that it did not have prior written notice of the defect, but did not argue that it did not create the defect. The complaint alleges that "defendants created the defective condition which caused plaintiff's fall and said condition was defective upon its creation" (verified complaint, ¶ 49). In the bill of particulars, Cron further alleges that defendants "improperly installed, repaired, and/or replaced the subject street, pavement, crosswalk and curb thereby creating the defective condition which caused plaintiff herein to trip, fall and become injured; in that the aforementioned street, pavement, crosswalk and curb condition was defective immediately following the aforementioned installation, repair and/or replacement" (verified bill of particulars, ¶¶ 19-20). The City's witness testified that DOT repaved the southwest corner of the intersection between May 5, 2009 and May 15, 2009, about 18 months prior to Cron's accident (Surkov tr at 43, 45, 46). Therefore, the defect may have been [*6]created by the City's repaving work prior to the accident.

Moreover, the City cannot sustain its prima facie burden of establishing that it did not create the condition in its reply papers (see Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992] ["The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion"]).

Therefore, the branch of the City's motion for summary judgment seeking dismissal of the complaint and all cross claims and counterclaims against it is denied.

Cron's Negligence Claim Against Con Ed and Cross Claims Against Con Ed

Con Ed moves for summary judgment dismissing the complaint and all cross claims against it, arguing that it did not create the condition that caused Cron's accident. Con Ed maintains that the only work performed near the area of the accident was performed by its contractor, Danella. Alternatively, Con Ed argues that if its motion is denied, then Danella's motion should also be denied. Con Ed notes that, pursuant to Danella's purchase order, Danella is required to indemnify Con Ed for any claims resulting in whole or in part out of the performance of Danella's work, and was required to purchase insurance naming Con Ed as an additional insured on its insurance policies. Thus, according to Con Ed, if Con Ed is found negligent for causing the defect, then Danella is required to indemnify Con Ed.

In opposition, Cron argues that there are issues of fact as to whether Con Ed created the defect in the roadway, since Con Ed performed excavation work in close proximity to where Cron fell. The City similarly contends, in opposition to Con Ed's motion, that: (1) Con Ed has failed to demonstrate that it did not create the defective condition, in light of the evidence that it performed excavation work in the area less than a year before the accident; and (2) the City is entitled to contractual indemnification and common-law indemnification from Con Ed.

Generally, a party who hires an independent contractor is not liable for the independent contractor's negligent acts (Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; Parsons v City of New York, 195 AD2d 282, 284 [1st Dept 1993]). The reason for this rule is that one who hires an independent contractor does not have the right to control the manner in which the work is done (Chainani v Board of Educ. of City of NY, 87 NY2d 370, 380-381 [1995], rearg denied 87 NY2d 862 [1995]). However, an employer may be vicariously liable for the independent contractor's acts "[(1)] where the employer is negligent in selecting, instructing or supervising the contractor, [(2)] where the contractor is employed to do work that is inherently dangerous or [(3)] where the employer bears a specific nondelegable duty" (Tytell v Battery Beer Distrib., 202 AD2d 226, 226-227 [1st Dept 1994], citing Kleeman, 81 NY2d at 274).

Here, Con Ed has failed to demonstrate that it did not create the defect in the street that allegedly caused Cron's accident. While Con Ed asserts that only Danella performed work near the southwest corner of the intersection, the record belies this claim. Con Ed's inspector testified that its workers placed asphalt around the excavation (Campanelli tr at 50, 56). The excavation extended to about a half a foot from the corner (id. at 44). Con Ed's utility worker testified that he and another Con Ed worker installed asphalt and sand around the excavation area near the southwest corner of the intersection on October 28, 2009 (Dunbar tr at 21-22). In view of this evidence, Con Ed's workers may have created the defect in the course of their work (see Rufino v Colella, 215 AD2d 223, 223 [1st Dept 1995] [issues of fact as to "the extent of the defendant's [*7]maintenance of the sidewalk area where the plaintiff was allegedly injured and whether defendant created the defect in the sidewalk which caused the accident" precluded summary judgment for defendant]).

Moreover, Con Ed has not established that it cannot be held vicariously liable for Danella's negligence. Cron alleges that "defendants, their agents, employees, departments and/or contractors were negligent, reckless and careless in the . . . supervision, direction, installation, repair and management of the aforesaid curb and/or sidewalk" (verified complaint, ¶ 51). Con Ed hired Danella to perform excavation and restoration work (Campanelli tr at 42). As noted above, Campanelli testified that the excavation was located about a half foot away from the corner (id. at 44). Con Ed does not argue that it did not exercise supervision or direction over Danella's excavation work. Further, it cannot be said on this record that Danella did not create the defect where Cron fell.

Therefore, Con Ed's motion for summary judgment is denied.

Cron's Negligence Claim Against Empire and Cross Claims Against Empire

Like Con Ed, Empire contends that the defective condition was not in any way related to its work. As argued by Empire, none of its work was undertaken near the southwest corner of the intersection. Thus, Empire requests dismissal of the complaint and all cross claims against it. In response to Empire's motion, Cron takes no position on Empire's motion (Ferrante affirmation in response, ¶ 2). However, the City contends that there are questions of fact as to the location of the defect and the proximity of Empire's work to the defect. The City maintains that Empire has not provided evidence that it searched for records of its activities near the location of the accident.

In the instant case, Empire has shown that it did not create the defect that caused Cron's accident. Empire's construction manager testified that it performed work on the north side of 58th Street, heading west from Lexington Avenue for approximately 60 to 63 feet and crossing 58th Street, and then heading south to 720 Lexington Avenue (Tergesen tr at 20-21). In other words, Empire's work was performed in the middle of two blocks, as opposed to at a corner or an intersection (id. at 21). Tergesen testified that none of Empire's work reached the southwest corner of the intersection of 58th Street and Lexington Avenue (id.).

The City has failed to raise a triable issue of fact in response to Empire's motion. Although the City points out that Empire did not provide evidence that it searched for records of its work near the location of the accident, Empire provided deposition testimony indicating that its work was not performed near the intersection. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise an issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Accordingly, Empire is entitled to dismissal of the complaint and all cross claims against it.

Con Ed's Indemnification and Contribution Claim Against Danella and Cross Claims Against Danella

Danella also moves for summary judgment on the ground that it did not cause or create the defect where Cron fell. More specifically, Danella contends that the evidence and testimony show that: (1) its trench work at the subject intersection was not in the area of the defect but at least half a foot away; and (2) it restored the trench with concrete, not asphalt.

In response, Cron argues, as she does against Con Ed, that there are questions of fact as to whether Danella created the defect, in view of the evidence that it performed work in close proximity to the defect. In addition, the City asserts that there are issues of fact as to whether Danella created the condition, since Danella conducted restoration work in the area, and Cron marked a photograph at her deposition indicating that the defect was not black. Con Ed notes that if its motion is denied, then Danella's motion should also be denied, because the only work performed in the vicinity of the defect was done by Danella.

In this case, Danella has not established prima facie entitlement to summary judgment. Danella excavated a ten-foot long trench near the southwest corner of the intersection on October 22, 2009 (Agro tr at 64-65). The trench was about six inches from the curbline (id. at 80). Danella performed restoration work up to the concrete sidewalk (id. at 109). Since Danella performed excavation in close proximity to the area of the accident, there are questions of fact as to whether it created the defect in the roadway in the course of its work (see Rodgers v City of New York, 79 AD3d 1003, 1003-1004 [2d Dept 2010] [triable issue of fact as to whether excavation contractor that had performed work in close proximity to the accident created depression in roadway]; Campisi v Bronx Water & Sewer Serv., Inc., 29 AD3d 452, 452 [1st Dept 2006] ["Plaintiff raised issues of fact as to whether the defect in the roadway was caused by BWSS, which allegedly performed excavation at or near the accident site"]; Figueroa v City of New York, 27 AD3d 515, 515-516 [2d Dept 2006] [issues of fact as to whether defendant created defect in roadway where it "performed extensive construction work on the roadway and sidewalk in close proximity to the site of the accident on numerous occasions"]). Therefore, Danella's motion for summary judgment is denied.

The City's Contractual Indemnification Claim Against Con Ed

The City moves for contractual indemnification against Con Ed. The City contends that, even though there is no written contract between the City and Con Ed, Con Ed is required to indemnify the City because: (1) Con Ed performed work pursuant to a street opening permit; (2) Con Ed was required to name the City as an additional insured on its liability policies; and (3) there is no evidence of the City's negligence.

Con Ed argues, in opposition, that there is no evidence that the defect arose out of its work under the permit. Further, Con Ed contends that the City's answer asserting its cross claim is a nullity, because the City did not seek leave to amend its answer to assert cross claims against it.

Contrary to Con Ed's position, the court previously granted the City leave to amend its answer. The City previously moved to dismiss the complaint, or in the alternative, to amend its answer. On June 18, 2013, Justice Mills denied the City's motion to dismiss the complaint, but permitted the City to amend its answer (Adams affirmation in reply, exhibit PP). The City amended its answer to include cross claims against Con Ed on July 26, 2013 (City's amended answer, first, second, third, fourth, fifth cross claims).

"A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances' " (Drzewinski v Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]). "When a party is under no legal duty to indemnify, a contract assuming that obligation must be [*8]strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]).

The City has failed to demonstrate the terms and conditions of an indemnification agreement. The City acknowledges that there is no written contract between the City and Con Ed. The City relies upon a street opening permit issued to Con Ed (Adams affirmation in support, exhibit BB). However, the street opening permit issued to Con Ed does not contain any indemnification language (id.). The City points to the DOT's Highway Rules, which indicate that applications for permits were to include the following indemnification provision:

"(ix) The permittee shall indemnify, defend and hold the City and its officials and employees harmless against any and all claims, liens, demands, judgments, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature (including, without limitation, attorneys' fees and disbursements), known or unknown, contingent or otherwise, allegedly arising out of or in any way related to the operations of the permittee and/or its failure to comply with any of the requirements set forth herein or law. Insofar as the facts and law relating to any claim would preclude the City and its officials and employees from being completely indemnified by the permitee, the City and its officials and employees shall by partially indemnified by the permittee to the fullest extent provided by law"

(34 RCNY § 2-02 [a] [3] [ix]). Nevertheless, the City does not rely on an application for a street opening permit. Moreover, although the DOT rules require applicants to purchase a commercial general liability policy naming the City as an additional insured (see 34 RCNY § 2-02 [a] [3] [i] [B]), it is well established that "[a]n agreement to indemnify is separate and distinct from an agreement to procure insurance" (Mt. Hawley Ins. Co. v American States Ins. Co., 139 AD3d 497, 498 [1st Dept 2016]).

Even if the court were to find that the City established the terms and conditions of an indemnification agreement, the court would conclude that there are issues of fact as to whether the claims arise out of Con Ed's operations.

Therefore, the City's request for contractual indemnification against Con Ed is denied.

The City's Contractual Indemnification Claim Against Empire

The City also seeks contractual indemnification from Empire, for similar reasons that it does against Con Ed. The City contends that Empire is required to indemnify it pursuant to the street opening permits.

The City has failed to demonstrate the terms and conditions of an indemnification agreement. The City admits that there is no written contract between the City and Empire. Additionally, the street opening permits issued to Empire submitted by the City do not contain any indemnification language (Adams affirmation in support, exhibits FF, GG, HH, II). The City does not submit any of Empire's applications for permits, which may have contained indemnification provisions. Even if Empire agreed to name the City as an additional insured on an insurance policy, this fact would not establish that Empire agreed to contractually indemnify the City. Consequently, the branch of the City's motion seeking contractual indemnification from Empire is denied.

The City's Request to Amend its Answer to Assert a Cross Claim for Common-Law Indemnification Against Danella and for Summary Judgment on its Cross Claim

The City seeks leave to amend its answer to assert a cross claim for common-law indemnification against Danella. The City also requests summary judgment on such cross claim, noting that the defect must necessarily have been created by Danella's restoration work at the intersection. In a supplemental affirmation, the City submits proposed cross claims for common-law indemnification against Danella (Adams supplemental affirmation in support, exhibit NN).

In opposing the City's motion, Danella contends that the City has not demonstrated that the proposed cross claim has merit, or a reasonable excuse for the delay in making its motion. Danella also asserts that there is no testimony or documentary evidence that it was working near the area of the accident.

As recently noted by the Court of Appeals, "'leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit . . . , and the decision whether to grant leave to amend a complaint is committed to the sound discretion of the court'" (Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015], quoting Pink v Ricci, 100 AD3d 1446, 1448 [4th Dept 2012]; see also CPLR 3025 [b]). The First Department has indicated that "[o]n a motion for leave to amend a pleading, movant need not establish the merit of the proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit" (Cruz v Brown, 129 AD3d 455, 456 [1st Dept 2015] [internal quotation marks and citation omitted]). Prejudice "requires some indication that the [opposing party] has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position" (Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011] [internal quotation marks and citation omitted]). Courts have held that "[w]hen an amendment to a pleading or a bill of particulars is sought at or on the eve of trial, judicial discretion in allowing such amendment should be discrete, circumspect, prudent and cautious" (Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271, 272 [1st Dept 1999] [internal quotation marks and citation omitted]).

"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is 'a separate duty owed the indemnitee by the indemnitor'" (Raquet v Braun, 90 NY2d 177, 183 [1997], quoting Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]). "The duty that forms the basis for the liability arises from the principle that every one is responsible for the consequences of his own negligence, and if another person has been compelled . . . to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him" (id. [internal quotation marks and citation omitted]).

Danella appeared in this action on November 17, 2014 (Adams affirmation in support, exhibit M). Cron filed the note of issue in this case on July 8, 2016.[FN1] The City's motion was made on April 29, 2016 (see Giallanza aff of service). Although the City does not provide a reasonable excuse for the delay in making its motion, the City has demonstrated the potential merit of this cross claim (see Bagan v Tomer, 139 AD3d 577, 577 [1st Dept 2016]), since Danella performed excavation and restoration work in the area within two years of the accident (Adams affirmation in support, exhibit KK). Campanelli testified that Danella performed the [*9]excavation and restoration work (Campanelli tr at 42). Thus, Danella may be required to indemnify the City under the common law (see City of New York v Kalikow Realty Co., 71 NY2d 957, 959 [1988] [municipality was entitled to common-law indemnification against a property owner for amounts paid by the municipality to a pedestrian who fell on broken sidewalk, where the municipality placed a violation on the premises and the owner resisted repair process]). Danella does not claim any prejudice or surprise resulting from the proposed cross claim. Indeed, Con Ed asserted a third-party claim for common-law indemnification against Danella. Danella also does not claim that it needs to conduct further discovery. Therefore, the court grants the City leave to amend its answer to assert a cross claim for common-law indemnification against Danella.

The City's request for summary judgment on this cross claim is denied. First, the City has failed to prove itself free of negligence, as it has not shown that it did not create the defective condition. Second, there are issues of fact as to whether Danella was negligent in creating the depression during its excavation work. Courts have held that "an award of summary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parties" (Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d 1027, 1030 [2d Dept 2009]).

CONCLUSION

Accordingly, it is

ORDERED that the motion (sequence number 005) of defendant/third-party plaintiff Consolidated Edison Company of New York, Inc. for summary judgment is denied; and it is further

ORDERED that the motion (sequence number 006) of defendant Empire City Subway Company (Limited) i/s/h/a Empire City Subway Company for summary judgment is granted, and the complaint and all cross claims against said defendant are severed and dismissed as against said defendant, and the Clerk is directed to enter judgment in favor of said defendant, with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the motion (sequence number 007) of defendant The City of New York is granted to the extent of granting it leave to amend its answer to assert a cross claim for common-law indemnification against third-party defendant Danella Construction of NY, Inc., and The City of New York's proposed cross claim against third-party defendant Danella Construction of NY, Inc. in the form annexed to its supplemental affirmation in support of summary judgment shall be deemed served upon service of a copy of this order with notice of entry thereof, and is otherwise denied; and it is further

ORDERED that third-party defendant Danella Construction of NY, Inc. shall serve a responsive pleading, if any, within 20 days of service of a copy of this order with notice of entry thereof; and it is further

ORDERED that the motion (sequence number 008) of third-party defendant Danella

Construction of NY, Inc. for summary judgment is denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: May 17, 2017

Hon Robert R. Reed

J.S.C. Footnotes

Footnote 1:The court's records indicate that the note of issue was filed on July 8, 2016, even though it was apparently served on the parties on March 3, 2016 (Adams affirmation in support, exhibit P).