Opinion
2018–12658 Index No.7236/14
10-30-2019
Frederick BROWN, Respondent, v. CITY OF NEW YORK, Defendant, Harris Water Main & Sewer Contractors, Inc., Appellant.
Lewis Johs Avallone Aviles, LLP, New York, N.Y. (Thomas A. Rhatigan of counsel), for appellant. Pavlounis & Sfouggatakis, LLP (The Altman Law Firm, PLLC, Woodmere, N.Y. [Michael T. Altman ], of counsel), for respondent.
Lewis Johs Avallone Aviles, LLP, New York, N.Y. (Thomas A. Rhatigan of counsel), for appellant.
Pavlounis & Sfouggatakis, LLP (The Altman Law Firm, PLLC, Woodmere, N.Y. [Michael T. Altman ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Harris Water Main & Sewer Contractors, Inc., appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated July 19, 2018. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Harris Water Main & Sewer Contractors, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is granted.
The plaintiff allegedly was injured when he fell from his bicycle due to a depression in the roadway at or near certain premises located on Hart Street in Brooklyn. The plaintiff commenced this action against the defendants, Harris Water Main & Sewer Contractors, Inc. (hereinafter Harris), and the City of New York, to recover damages for personal injuries. The plaintiff alleged that Harris, a subcontractor retained by a nonparty, performed repairs and maintenance at the location prior to the date of the accident and created the defective condition. Harris moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the grounds that it did not perform any work at the location where the plaintiff fell and the work it performed at a different location on Hart Street commenced after the plaintiff's accident. The Supreme Court denied the motion, and Harris appeals from so much of the order as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.
Contrary to the Supreme Court's determination, Harris established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not perform excavation work near the location of the alleged roadway defect or otherwise create the defect (see Burton v. City of New York , 153 A.D.3d 487, 60 N.Y.S.3d 220 ; Lara v. City of New York , 135 A.D.3d 712, 713, 24 N.Y.S.3d 126 ; Cruz v. Keyspan , 120 A.D.3d 1290, 1291, 992 N.Y.S.2d 549 ). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The plaintiff's contention that a permit had been issued to Harris to open up the roadway on Hart Street in a location other than where the accident occurred was insufficient to raise a triable issue of fact as to whether Harris performed work in the roadway where the accident occurred and created the alleged defect (see Burton v. City of New York , 153 A.D.3d 487, 60 N.Y.S.3d 220 ; Cruz v. Keyspan , 120 A.D.3d at 1291, 992 N.Y.S.2d 549 ).
Accordingly, the Supreme Court should have granted that branch of Harris's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
MASTRO, J.P., BALKIN, IANNACCI and CHRISTOPHER, JJ., concur.