Opinion
Index No. 17132/2014
01-18-2023
Maria Babayan, Plaintiff, v. The City of New York, Verizon New York Inc., Consolidated Edison, Inc., and VNA Utility Contracting Co., Inc., Defendants.
For Plaintiff Maria Babayan: Steven Pestyner of Goidel & Siegel, LLP For Defendant Verizon New York Inc.: Katie Lee Wright of Lewis Brisbois Bisgaard & Smith, LLP For Defendant V.N.A Utility Contracting Co., Inc.: Kerrie Barry of Law Office of Kevin J. Philbin For Defendant City of New York: Nicholas W. Carter of the New York City Law Department For Defendant Consolidated Edison, Inc.: Marcin J. Kurzatowski of Russo & Gould
Unpublished Opinion
For Plaintiff Maria Babayan:
Steven Pestyner of Goidel & Siegel, LLP
For Defendant Verizon New York Inc.:
Katie Lee Wright of Lewis Brisbois Bisgaard & Smith, LLP
For Defendant V.N.A Utility Contracting Co., Inc.:
Kerrie Barry of Law Office of Kevin J. Philbin
Other Defendants (but not on the motion sequences that are the subject of this order/decision):
For Defendant City of New York:
Nicholas W. Carter of the New York City Law Department
For Defendant Consolidated Edison, Inc.:
Marcin J. Kurzatowski of Russo & Gould
Hon. Patria Frias-Colón, J.S.C.
Recitation, as required by CPLR §§ 2219 and/or 3212 of Papers consider on Review of Motion:
Papers/NYSCEF Doc. #s:
Motion Sequence 9:
Defendant Verizon's Motion 13-30, 82
Motion Sequence 10:
Defendant VNA's Motion 38-52, 80, 84
Defendant Verizon's Partial Opp. 59-60
Motion Sequence 9 and 10:
Plaintiff's Opp. 62-79, 81
Relevant Facts and Procedural History:
This matter arises from a trip and fall accident on or about February 19, 2014 at the crosswalk of the corner of Neptune Avenue and Ocean Parkway around 7:10am. Plaintiff alleges that on her way to work, she stepped into a hole in the pavement and fell as she walked in the crosswalk.
Plaintiff commenced an action against Defendants Verizon New York, Inc. (Verizon), Consolidated Edison, Inc. (Con Ed) and the City of New York (City) on December 9, 2014. Defendant Verizon commenced a Third-Party action against Defendant VNA Utility Contracting Co. Inc. (VNA) on August 11, 2015.
Upon the foregoing cited papers and oral argument on, pursuant to CPLR § 3212, the Decision and Order on Defendant Verizon's Motion for Summary Judgment and Dismissal of Plaintiff's Complaint and all Crossclaims (Motion Sequence # 9), and on Defendant VNA's Cross-Motion for Summary Judgment and Dismissal of Plaintiff's Complaint and all Crossclaims (Motion Sequence # 10), is as follows:
Defendants Verizon and VNA's motions are GRANTED. In its motion, Defendant VNA argues that Plaintiff's complaint is devoid of any factual allegations that would support a negligence claim. More specifically that Plaintiff failed to show that VNA owned, leased, maintained, managed, operated, controlled or performed any work at the crosswalk location at Neptune Avenue and Ocean Parkway, where Plaintiff allegedly fell and suffered her injury. Larisa Dubina, a claims specialist for the New York City Department of Transportation (DOT), testified at a deposition that DOT conducted a records search for work permits, permit applications, violations, inspections, complaints, maintenance and repair and other related records at or near the accident location (See NYSCEF Doc. # 24 at pages 9-14). Ms. Dubina testified that DOT's search revealed only one permit issued to Defendant Verizon, and that was for the construction of a conduit on Neptune Avenue between Ocean Parkway and West 5th Street, said permit expired approximately eleven (11) months before the alleged accident (See NYSCEF Doc. # 24 at 22-23). Defendant Verizon submitted an affidavit of employee Aaron Crawford, who stated that his search of Verizon's records showed that Verizon had not done any work at the specific crosswalk intersection of Neptune Avenue and Ocean Parkway for a period of two years prior to and including the accident date (See NYSCEF Doc. # 27 at 1-2). Mr. Crawford further averred therein that the DOT permit for the work on Neptune Avenue did not encompass the location of Plaintiff's alleged fall (See NYSCEF Doc. # 27 at 2). At his deposition, Mr. Crawford testified that VNA, which was Verizon's subcontractor on said permit, made a road-cut on Neptune Avenue but not in the crosswalk, which was where Plaintiff allegedly fell (See NYSCEF Doc. # 49 at 12, 19, 41-44, 51).
Defendant VNA further asserts that Plaintiff's own testimony confirms that no work was being done at the location where she was allegedly injured (See NYSCEF Doc. # 22 at 18 and NYSCEF Doc. # 21 at 46-47). Defendant VNA also submits the deposition of its vice-president and part-owner, Anthony Coccimiglio, who was present when the work was performed, which refuted any claim that it performed any work at the intersection nor had any responsibility for any work at that location, and that VNA's road-cuts were performed at two specific sites that were not where Plaintiff allegedly fell (See NYSCEF Doc. # 52 at 20-21, 31-32, 37-39, 42, 52, 58, 77-78, 121). Mr. Coccimiglio's testimony that Defendant VNA received no complaints about its work relating to the Verizon permit (see NYSCEF Doc. # 52 at 122-126) was not contradicted by other evidence. Defendant VNA avers it has made a prima facie showing that there are no material triable issues of fact and that it is entitled to summary judgment as a matter of law.
Defendant Verizon only opposes the portion of Defendant VNA's motion seeking dismissal of Verizon's cross-claims against VNA should this Court deny Defendant VNA's summary judgment motion. Defendant Verizon's conditional opposition to Defendant VNA's motion derives from its agreement with VNA that it was to indemnify Verizon and to perform its work in a professional and workmanlike manner. Defendant Verizon notes that it sought summary judgment in its favor against Plaintiff (motion sequence 9) for substantially the same reasons that VNA seeks summary judgment. While Defendant Verizon acknowledges that Defendant City issued it a work permit in the vicinity of the subject location, it claims that the work performed by subcontractor Defendant VNA, namely a one-hundred-foot cut for a conduit on Neptune Avenue between Ocean Parkway and West 5th Street, did not include the crosswalk at Neptune and Ocean Parkway where Plaintiff allegedly fell. It also noted that four work permits were issued to co-Defendant Con Ed, and one to non-Defendant J. Pizzirusso Landscaping. Defendant Verizon further noted that it was not onsite during the work and that Defendant City did not issue any violations or corrective actions afterwards.
In its joint opposition to both motions, Plaintiff asserted that Defendant Verizon obtained a permit to excavate at the precise accident location and that none of the deposition testimony refuted this. Plaintiff further claims that Defendant Verizon cannot evade liability by blaming its sub-contractor, Defendant VNA. Plaintiff argues that Defendants Verizon and VNA failed to establish that neither created nor exacerbated the roadway defect, nor that they were unaware of it. Plaintiff claims that the evidence evinced indicates that material issues of fact remain that can only be resolved through a trial.
The Court is aware that summary judgment is a drastic remedy that can deprive a litigant of his or her day in court. See Kolivas v. Kirchoff, 14 A.D.3d 493 (2nd Dep't 2005). The Court also recognizes that in deciding such a motion, it should construe the evidence in a light most favorable to the opposing party. See Benincasa v. Garrubbo, 141 A.D.2d 636 (2nd Dep't 1988). But that does not mean that the relief sought by the movant for summary judgment is always unavailing. A party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law and must affirmatively demonstrate the merit of its claim or defense. See Nunez v. Chase Manhattan Bank, 16 A.D.3d 637 (2nd Dep't 2005). In the instant case, Defendants Verizon and VNA have done so.
Notwithstanding Judge Jimenez's December 18, 2015 decision granting Plaintiff's motion to amend its complaint to add VNA as a direct Defendant (and Defendant Verizon filed a third- party complaint against Defendant VNA), this Court draws no inference from that as to the culpability of Defendant VNA. To the contrary, this Court finds that Defendants Verizon and VNA have met their respective prima facie burden that neither created nor exacerbated the alleged defect where the Plaintiff allegedly suffered injury from a fall, made any special use of the crosswalk that could establish liability, nor did they owe Plaintiff any other duty under law. Further, this Court can distinguish the evidence presented in the instant matter from that presented in the seemingly analogous cases of Terrell v. City of New York. 74 A.D.3d 787 (2nd Dep't 2010) and Pallotta v. City of New York. 121 A.D.3d 656 (2nd Dep't 2014). In Terrell, the plaintiff was injured when he stepped into a depression while crossing a street and sued Verizon, who in-turn impleaded its subcontractor which performed conduit replacement work in the accident vicinity. See 74 A.D.3d at 788. The Second Department affirmed the lower court's finding that neither Defendant had eliminated all triable issues of fact as to whether the subcontractor created the roadway defect. Id. Once the Court reached that conclusion, it then found that Verizon had failed to establish that it lacked the authority to control or supervise the subcontractor's work, foreclosing summary judgment on those grounds. Id.
In Pallotta v. City of New York, the plaintiff was injured when he lost control of his motorcycle on a road that several contractors had been working on, including but not limited to Verizon, who had secured permits from the City so that its subcontractor VNA could install a conduit for a telephone cable. See 121 A.D.3d at 656. The Second Department affirmed the lower court's finding that neither Defendant had eliminated all material issues of fact as to whether the area of road where plaintiff lost control was where VNA had done its work and whether VNA's roadwork had caused the accident. Id. at 657. Once the Court rejected summary judgment, it likewise denied the branch of VNA's motion for summary judgment against Verizon as the issue of indemnification remained an issue of fact. Id.
Unlike the holdings by the Appellate Division in Terrell and Pallotta, this Court finds that Verizon and VNA's evidentiary submissions eliminated triable issues of fact as to whether work done in the past by VNA could have contributed to Plaintiff's injury and finds that Plaintiff's citations to certain testimony and photographs amount to speculative or conclusory assumptions that are insufficient to defeat summary judgment. Cf. Smith v. City of New York. 210 A.D.3d 53, 70 (2nd Dep't 2022) (plaintiff's expert's affidavit was not supported by the record and thus was speculative and conclusory); Chtchannikova v. City of New York. 174 A.D.3d 572 (2nd Dep't 2019) (unsworn report of plaintiff's consulting engineer was based on review of unauthenticated Google photographs was deemed speculative and insufficient to defeat summary judgment motion). In Chtchannikova, the plaintiff allegedly was injured when she fell in a hole in a crosswalk, sued Verizon, who had been issued permits to perform work in the vicinity, and also sued VNA, who had been subcontracted by Verizon to install PVC conduit. See 174 A.D.3d at 573. The Appellate Division reversed the lower court's finding that the plaintiff had raised a triable issue, concluding that VNA established its prima facie entitlement to judgment as a matter of law by providing evidence that it did not perform work on the road where the alleged injury occurred whereas plaintiff's conclusions that the photographs showed that it was VNA that had performed the work and that the work was at the accident location, were speculative). Id. at 573-574.
In weighing the evidence submitted by the parties, including the photographs, the permits and prior testimony, and construing said evidence in a light most favorable to the non-moving party, this Court is constrained to find an insufficient nexus between whatever work was done by VNA on Verizon's behalf and Plaintiff's injury. Accordingly, it must grant summary judgment in favor of Defendants Verizon and VNA since there are no triable issue of fact as to their respective liability.
Counsel for Defendants Verizon and VNA shall serve a copy of this Decision and Order with notice of entry upon the Clerk of the Court and the other parties.
This constitutes the Decision and Order of the Court.