Opinion
16601 302414/09 83721/10 84096/11
01-12-2016
Elba CAMACHO, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants, Con Edison, Inc., et al., Defendants–Respondents. Consolidated Edison Company of New York, Inc., Third–Party Plaintiff–Respondent, v. Hallen Construction Co., Inc., Third–Party Defendant–Respondent. Hallen Construction Company, Inc., etc., Fourth–Party Plaintiff–Respondent, v. New York Paving, Inc., Fourth–Party Defendant–Respondent.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant. Office of David M. Santoro, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, Inc., sued herein as Con Edison, Inc., respondent. Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for Hallen Construction Co., Inc., respondent. Pillinger, Miller, Tarallo, LLP, Elmsford (Michael Neri of counsel), for New York Paving, Inc., respondent.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.
Office of David M. Santoro, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, Inc., sued herein as Con Edison, Inc., respondent.
Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for Hallen Construction Co., Inc., respondent.
Pillinger, Miller, Tarallo, LLP, Elmsford (Michael Neri of counsel), for New York Paving, Inc., respondent.
Opinion
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 13, 2014, which, to the extent appealed from as limited by the briefs, granted the motions of defendants Hallen Construction Company, Inc. and Consolidated Edison Company of New York, Inc., sued herein as Con Edison, Inc., for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
By demonstrating that the area where plaintiff fell was outside the area where they and their contractor, fourth-party defendant New York Paving, Inc., performed work, defendants Con Edison and Hallen (defendants) established prima facie that they did not cause or create the defective condition in the sidewalk (see Levine v. City of New York, 101 A.D.3d 419, 956 N.Y.S.2d 5 1st Dept.2012; Jones v. Consolidated Edison Co. of N.Y., Inc., 95 A.D.3d 659, 944 N.Y.S.2d 544 1st Dept.2012 ). In opposition, plaintiff submitted a speculative and conclusory affidavit by a purported licensed engineer. The engineer attributed plaintiff's fall on the raised sidewalk flag to insufficiently filled expansion joints running from the sidewalk flags where defendants performed work to the raised flag 5 ½ feet away, but failed to explain how water in the joints raised the flag 5 ½ feet away but not other flags that were closer to defendants' work and actually abutted the joints. The engineer also failed to explain why he believed that the flag was pushed up by water under it, as opposed to the roots of a nearby tree (see Freimor v. City of New York, 44 A.D.3d 514, 515, 843 N.Y.S.2d 609 1st Dept.2007; Yass v. Deepdale Gardens, 187 A.D.2d 506, 589 N.Y.S.2d 593 2d Dept.1992 ). In any event, plaintiffs had no duty to fill the expansion joints around the subject flag, on which they did not work and which they had not disturbed (see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296–297, 532 N.Y.S.2d 105 1st Dept.1988, lv. dismissed in part, denied in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 1988 ).