Jones v Giffuni Bros.

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Jones v Giffuni Bros. 2018 NY Slip Op 30027(U) January 5, 2018 Supreme Court, New York County Docket Number: 155303/2013 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 1] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 --------------------------------------x JANETTE JONES, Index No. 155303/2013 Plaintiff, -againstGIFFUNI BROS., MERIT OPERATING CORP., CONSOLIDATED EDISON COMPANY OF NEW YORK INC., CONSOLIDATED EDISON, INC., MANETT~ INDUSTRIES and WJL EQUITIES CORP., Defendants. ----------------------------------------x GIFFUNI BROS. and MERIT OPERATING CORP., Third-Party Plaintiffs, -againstCONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and CONSOLIDATED EDISON, INC., Third-Party Defendants -----------------------------------------x CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Fourth-Party Plaintiff -againstMANETTA INDUSTRIES and WJL EQUITIES CORP., Fourth-Party Defendants. -----------------------------------------x JENNIFER G. SCHECTER, J.: Pursuant to CPLR 3212, defendant WJL Equities Corp. moves for summary judgment dismissal cross-claims against it. York, Inc., of the (WJL) complaint and Consolidate.ct Edison Company of New Consolidated Edison Inc. (collectively Con Ed), and Manetta Industries (Manetta) each "cross move" for summary judgment as well. Plaintiff defendants Giffuni Bros. (Merit) (these defendants Janette Jones (Jones) and (Giffuni) and Merit Operating Corp. collectively motion and "cross motions." 2 of 12 Giffuni) oppose the [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 2] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. Index No 155303/13 Page 2 Background Jones commenced this action to recover for personal injuries arising from a trip and fall over uneven sidewalk flags on the west side of First Avenue between s3rd and s4th Streets on July 15, 2012 (WJL Affirmation in Support [Supp], Exs B, D and E) . accident site Giffuni owns the building abutting the and Merit managed the property, which was located at 353 East 83rd Street (Building) . At her deposition Jones testified that she tripped on an extension joint in front of a standpipe attached to the Building and circled the location in a photograph (Supp, Exs D and F) . There are three rows of sidewalk flags running parallel to the Building (Supp, Ex H) . Plaintiff tripped where two sidewalk flags in the same row met in the row closest to the Building (Supp, Ex F) These two flags are abutted by flags in the next--middle-- row of sidewalk flags (Sup, Ex F). Work History Near Accident Site On September 1, 2009, Con Ed engaged Manetta to perform a sidewalk excavation "on the west side of First Avenue between s3rd and s4th Streets, at 103 feet from the northwest corner of East s3rd Street and one foot from the curb line. 1 1 Despite the permit stating it was 109 feet from the corner, the evidence shows that it was in fact 103 feet. Evidence included testimony from John Saker of Con Ed who measured the 3 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 3] INDEX NO. 155303/2013 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. Index No 155303/13 Page 3 The shape of the opening was a trench, and its size was 14feet long by 3.5-feet wide" and five feet deep with a pavement surface depth of five inches of concrete and a base of dirt (Giffuni Opposition to WJL [Giffuni Opp to WJL] at~~ 14, 17). The New York City Department of Transportation (DOT) issued a permit and Manetta was to open the sidewalk and after work was performed to backfill it (Supp at ~~ 25-28) Manetta's work was temporary, after excavation Manetta had to "plug the area and it was just to cover the area that was excavated" (Supp at ~ 28). On September 15, 2009, Giffuni wrote to DOT complaining that Manetta did not properly backfill the area and did not use an appropriate psi (pounds per square inch) concrete. Gif funi further sent DOT pictures showing that the sidewalk had already begun to crack (Giffuni Opp to WJL at ~ 53). responded on September 22, repaired. 2009, 2009 that the sidewalk would be When it had not been repaired, Giffuni again DOT wrote to DOT on November 19, enclosing additional photographs depicting a defective condition that had developed after Manetta's work (Giffuni Opp to WJL at ~ 54). On April 12, 2010, Giffuni wrote DOT for a third time complaining that area himself when the work was performed(Supp at ~~ 25, 28). Permit measurements, moreover, include estimates and were not always exact (Supp at ~ 33). 4 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 4] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. Index No 155303/13 Page 4 the sidewalk still remained unrepaired (Giffuni Opp to WJL at ~ 55) . On April 15, 2010, someone complained to the City about the sidewalk triggering a Corrective Action Request (CAR), which stated that there was a one-foot portion of concrete broken out and that concrete patchwork and three flags needed restoration (Supp at ~ 24) . (Giffuni Opp to WJL at ~ 18) DOT sent the CAR to Con Ed The area in the CAR was the same area where Manetta had performed work (Supp at ~ 24). A call log indicates that within a few hours "an SSC [subsurface construction Con Ed crew] responded to a DOT call regarding a broken section of concrete one foot down, and two an a half inches southwest of East 93ra Street" ~~ (Gif funi Opp to WJL at The SSC crew located the hole on the sidewalk, 19, 41). placed a steel plate on it and asphalt around it (Giffuni Opp to WJL at ~ 19) . On April 22, 2010, Con Ed generated an Opening Ticket for the location for repairs of a permanent nature to be made within 60 days (Supp at~ 27; Giffuni Opp to WJL at ~ 55) . On June 25, 2010, Giffuni again wrote to DOT because repairs had still not been made (Giffuni Opp to WJL at ~ 55) . 5 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 5] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 Index No 155303/13 Page 5 Jones v Giffuni Bros. Con Ed sent WJL an Opening Ticket dated July 2, 2010 to perform repair work to the sidewalk. The location for the work to be performed was 103 feet from the south corner of the block and one foot from the curb (Giffuni Opp to WJL at ~ 69). There was also a Con Ed order for paving and restoration dated July 7, 2010 requiring WJL to remove and restore the three sidewalk flags but not requiring excavation or backfilling (Supp at ~~ 12,16; Giffuni Opp to WJL at~ 70). The July 2, 2010 Paving Opening Ticket and the July 7, 2010 and Restoration order "appear[] to ben for the same work (Giffuni Opp to WJL at ~ 71) . The flags that were replaced were five feet from the standpipe (Supp at~ 17, Ex K; WJL Reply at~ 8, Exs c and D). The work was performed on July 15, 2010. Experts WJL's expert, Joseph C. Cannizzo, P.E., reviewed numerous documents October 6, related to this action and visited the site on 2016 (Cannizzo Aff at ~ 6) performed its work at 103 feet He noted that WJL and any reference to work performed at 193 feet was a mistake (Cannizzo Aff at ~ 10) . Mr. Cannizzo explains that WJL did not do work where the plaintiff fell; rather, the work WJL and Manetta performed was five feet from the accident location (Cannizzo Aff at ~~ 8, 6 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 6] NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. 13) . 2 INDEX NO. 155303/2013 He further Index No 155303/13 Page 6 states that "the process of [permanent] concrete sidewalk restoration [that WJL performed] could not cause or create a raised sidewalk where plaintiff was said to have tripped and fallen" (Cannizzo Aff at ~ It is Mr. 8). Cannizzo' s opinion that "the raised flag condition in the area of the accident expanded, was caused by trapped water He froze, that lifted the slab that did not return to its original elevation when the ice melted" 17) . that opines that "based on a (Cannizzo Aff at ~ reasonable degree of engineering certainty the work performed by WJL did not cause or create a raised sidewalk flag" Giffuni's expert, (Cannizzo Aff at ~ 14). Scott E. Derector, explains that the height differential at the expansion joint where plaintiff tripped was "causally related to the settlement of the middle concrete panel that was located adjacent expansion joint and to the south of it" He points 32) . 3 out that there to the ground (Derector Aff at ~ is no evidence that the subgrade and foundation material directly beneath the concrete sidewalk panels were compacted in accordance with 2Mr. DOT Cannizzo states that the location of the accident was feet from the north curb of East 83cl Street" and found the distance to be 5'-6' North of the limits of WJL's restoration work {Cannizzo Aff at ~~ 10, 13). "120'-ll' 3 Mr. Derector also noted that there was no recent work at 193 feet north of the north curb of East 93rct Street (Derector Aff at ~ 20) . 7 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 7] INDEX NO. 155303/2013 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. specifications Index No 155303/13 Page 7 ~ (Derector Aff at 33) . Significantly, he opines that "the work performed by Con Ed, Manetta and/or its representatives differential accident. was that causally was related allegedly to involved" in the height plaintiff's He says nothing about WJL (Derector Aff at ~ 35). Analysis Summary Judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of material triable issues(see Glick & Dolleck v Tri-Pac Export Corp, 22 NY2d 439, 441 [1968] [denial of summary judgment appropriate where an issue is "arguable"] ; Sosa v 46th Street Develop. LLC, 101 AD3d 490, 493 movant to judgment make as admissible a a [1st Dept 2012]). prima matter of facie law showing by The burden is on the of entitlement presenting evidence to in form demonstrating the absence of any disputed material facts. burden then Once the movant has made this showing, the shifts competent evidence, to the opponent to establish, through that there is a material issue of fact that warrants a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) . WJL has met its prima facie burden. 8 of 12 It established that it solely performed concrete restoration work at the direction [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 8] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 Index No 155303/13 Page 8 Jones v Giffuni Bros. of Con Ed and did not work on the foundation or subsoil (Supp, Ex I at 69) . Neither expert states that the work performed by WJL affected any height differential; rather, although based on different theories, the problem is believed to have stemmed from the foundation or subgrade (Cannizzo Aff at ~~ 8, 15-16; Derector Aff at ~ 35) . In opposition, Giffuni does not raise a material question of fact. There is no real dispute that work was not performed at the· exact site where plaintiff fell but approximately five feet away (Lynch v Con Ed of New York, Inc., 2008 WL 10727216 [Sup Ct, New York County 2008] [merely showing that defendant performed work in a general area is not enough to defeat a motion for summary judgment]; Robinson v City of New York, 18 AD3d 255 [1st Dept 2005] [absent some evidence connecting defendant's work to the situs of plaintiff's injury, defendant entitled to summary judgment]). Any argument that WJL worked in the "wrong location"--at 193 feet north of the west curb of East 83ra Street--is belied by the evidence. First, the documents Giffuni relies upon are admittedly illegible (Giffuni Opp to WJL at ~~ 70, 91, 94, 96 n. 4) Second, Cannizzo concluded that to the extent that 193 feet is noted on the application and the permit, it should have been 103 feet and that in any event "193 NNC of East 83ra 9 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 9] INDEX NO. 155303/2013 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. Index No 155303/13 Page 9 Street is located north of the property line . [his] opinion concrete years" that there sidewalk at that (Cannizzo Aff at ~ has been no restoration location for at 10). . and it is least of ten the ( 10) Finally, Mr. Derector also noted that there was no recent work at 193 feet north of the ~ north curb of East 83ra Street (Derector Aff at 20) . Giffuni also raises the possibility that work performed in April 2010 by an emergency crew may have sidewalk. impacted the Giffuni acknowledges that there is "no notation of who performed the opening" in April 2010 (Giffuni Opp to WJL at ~~ 19, 41, 89). A WJL employee testified, however, and it is unrefuted that documents relating to April 2010 establish that work at the site was performed by Con Ed. the WJL employee had never seen an order Furthermore, for paving or restoration from Con Ed to WJL for work in April 2010 (Supp, Ex I at 63; Trundle v 225 East 57th Street Owners, Inc., 2013 NY Slip Op 32705 [U] [Sup Ct, New York County 2013]) There is no evidence to support a conclusion that WJL performed the April 2010 emergency work. Most importantly, performed by WJL, caused accident the neither expert states that the work whatever the location may be, height differential that caused (see Espinal v Melville Snow Contrs., 10 of 12 could have plaintiff's 98 NY2d 136, [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 10] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. Index No 155303/13 Page 10 140 [2002]; Kelly vMall At Smith Haven, LLC, 148 AD3d 792 [2d Dept 2017]) . Because WJL established that it was not negligent in connection with plaintiff's accident and no party raised a triable issue of fact as to WJL's liability, WJL's motion for summary judgment is granted (Witte v Incorporated Village of Port Washington North, 114 AD2d 359 [2d Dept 1985] ) . Both Manetta and Con Ed's motions 4 for summary judgment are denied as untimely as they were made after October 15, 2016 without a proper showing of good cause (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]; Giffuni Opps to Con Ed and Manetta Cross Motions, Exs B ["Any party that seeks to make a summary judgment motion must do so within 60 days after 8/15/16 • "] ) • 5 The issues presented in the motions were not the same ones as those presented by WJL and in rev±ewing WJL's motion it did not appear that any 4 The motions were improperly denominated cross motions (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 86-87 [a cross motion is a motion by any party against the party who made the original motion]). 5 Manetta maintains that it has good cause for missing the summary-judgment deadline because depositions were being taken in August 2016. The summary-judgment-motion cutoff, however, was in October 2016--60 days after depositions were ordered to have been completed--and was set in the very same order that fixed the August 2016 depositions. Manetta, moreover, did not explain what information it needed in October 2016 that it did not already have in order to make its motion nor did it ever seek an extension of time to move. 11 of 12 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 10:46 AM 11] NYSCEF DOC. NO. 171 INDEX NO. 155303/2013 RECEIVED NYSCEF: 01/10/2018 Jones v Giffuni Bros. Index No 155303/13 Page 11 non-moving party was entitled to judgment (see CPLR 3212[b]; see also Rubino v 330 Madison Co., LLC, 150 AD3d 603 [1st Dept 2017]). Accordingly, it is ORDERED that WJL' s summary judgment motion is granted and the complaint and all cross-claims against it are dismissed, with costs and disbursements to WJL as taxed by the Clerk of the Court and the Clerk is directed to enter judgment accordingly in favor of WJL; it is further ORDERED that the action is severed and continued against the remaining defendants; it is further ORDERED that the caption be amended to ref le ct the dismissals; and it is further ORDERED that counsel for WJL shall serve a copy of this order on the County Clerk and Clerk of the Trial Support Office who are directed to mark the court's records to reflect the changes in the caption herein. This is the decision and order of the court. Dated: January 5, 2018 12 of 12

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