Opinion
2014-01-14
David POPLASKI, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants. Consolidated Edison Co. of New York, Inc., Third–Party Plaintiff–Respondent, v. Nico Asphalt, Inc., Third–Party Defendant–Appellant–Respondent, Triumph Construction Corp., Third–Party Defendant–Respondent–Appellant. [And a Fourth–Party Action]
McMahon, Martine & Gallagher, LLP, Brooklyn (Roderick Coyne of counsel), for appellant-respondent. Rubin Fiorella & Friedman LLP, New York (Jeff R. Thomas of counsel), for respondent-appellant.
McMahon, Martine & Gallagher, LLP, Brooklyn (Roderick Coyne of counsel), for appellant-respondent. Rubin Fiorella & Friedman LLP, New York (Jeff R. Thomas of counsel), for respondent-appellant.
Stephen T. Brewi, New York, for respondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered January 23, 2013, which denied third-party defendants' motions for summary judgment dismissing the complaint and all cross claims as against them, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the third-party complaint. The third-party defendants, a re-grading contractor and a re-paving contractor, established prima facie that the work they performed did not cause or create the defect that plaintiff claims caused his accident ( see Jones v. Consolidated Edison Co. of N.Y., Inc., 95 A.D.3d 659, 944 N.Y.S.2d 544 [1st Dept.2012] ). Con Edison has failed to raise an issue about a height differential between its grate and the surrounding roadway that allegely caused the rear wheel of plaintiff's scooter to lose traction. SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, FEINMAN, JJ., concur.