Opinion
2014-09-17
Vivian CRUZ, appellant, v. KEYSPAN, et al., defendants, Verizon New York, Inc., respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel) for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel) for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated February 7, 2014, which granted the motion of the defendant Verizon New York, Inc., for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries when she tripped and fell over a pothole in the part of a roadway which was near a curb. The plaintiff thereafter commenced this action against, among others, the defendant Verizon New York, Inc. (hereinafter Verizon). Verizon moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not create the alleged defect. The Supreme Court granted the motion.
Verizon established, prima facie, that it did not perform any work in the area where the accident occurred and that it did not create the alleged defect ( see Walton v. City of New York, 105 A.D.3d 732, 963 N.Y.S.2d 275; Sand v. City of New York, 83 A.D.3d 923, 925, 921 N.Y.S.2d 312; Loughlin v. City of New York, 74 A.D.3d 757, 758, 902 N.Y.S.2d 625; Jones v. City of New York, 45 A.D.3d 735, 846 N.Y.S.2d 307). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The mere fact that a permit had been issued to Verizon to open up the sidewalk was insufficient to raise a triable issue of fact as to whether Verizon performed work in the roadway where the accident occurred and created the alleged defect ( see Garcia v. City of New York, 53 A.D.3d 644, 863 N.Y.S.2d 46; Rubina v. City of New York, 51 A.D.3d 761, 762, 857 N.Y.S.2d 713; Cendales v. City of New York, 25 A.D.3d 579, 580–581, 807 N.Y.S.2d 414).
Accordingly, the Supreme Court properly granted Verizon's motion for summary judgment dismissing the complaint insofar as asserted against it.