Opinion
2011-11-1
Daniel ANDINO, Plaintiff,v.NSPD ASSOCIATES, LLC, et al., Defendants,[And Another Action].Consolidated Edison Company of New York, Inc., Third–Party Plaintiff–Respondent,v.Step–Mar Contracting Corp., Third–Party Defendant–Appellant.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, New York (Joseph C. Bellard of counsel), for appellant.Richard W. Babinecz, New York (Kaming Lau of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about October 29, 2010, which, in this personal injury action arising from a trip and fall on a public sidewalk, to the extent appealed from, denied third-party defendant Step–Mar's cross motion for summary judgment dismissing Consolidated Edison's third-party complaint against it, unanimously affirmed, without costs.
Step–Mar made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that it did not create the alleged dangerous condition on the subject sidewalk ( see Fernandez v. 707, Inc., 85 A.D.3d 539, 540–541, 926 N.Y.S.2d 408 [2011] ). In opposition, Con Edison raised an issue of fact as to whether Step–Mar properly performed its contractual obligation to maintain the work site, which included the subject sidewalk ( cf. id. at 541, 926 N.Y.S.2d 408). The contract does not state, and Step–Mar's supervisor did not testify at his deposition, that Step–Mar's obligation is limited to safeguarding its own work, materials, or equipment.
GONZALEZ, P.J., TOM, SWEENY, RENWICK, JJ., concur.