Opinion
191 CA 21-00335
06-10-2022
Vincent D. VIRTUOSO, Plaintiff-Appellant, v. NIAGARA MOHAWK POWER CORPORATION, Niagara Mohawk Power Corporation, Doing Business as National Grid, National Grid USA Service Company, Inc., and National Grid USA Service Company, Inc., Doing Business as National Grid, Defendants-Respondents.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT. BARCLAY DAMON, LLP, BUFFALO (RYAN C. ALTIERI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BARCLAY DAMON, LLP, BUFFALO (RYAN C. ALTIERI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for personal injuries he allegedly sustained after he received an electrical shock while clearing brush inside an electrical substation owned by his employer, who is not a party to this action. He appeals from an order granting defendants’ motion for summary judgment dismissing the complaint. We affirm.
Contrary to plaintiff's contention, defendants met their initial burden on the motion of establishing that there was no dangerous or defective condition in their equipment and that they maintained their equipment in reasonable care (see Rentz v. Long Is. Light. Co. , 289 A.D.2d 466, 466-467, 735 N.Y.S.2d 175 [2d Dept. 2001] ; White v. Niagara Mohawk Power Corp. , 197 A.D.2d 906, 906-907, 602 N.Y.S.2d 263 [4th Dept. 1993] ; cf. generally Miner v. Long Is. Light. Co. , 40 N.Y.2d 372, 379-380, 386 N.Y.S.2d 842, 353 N.E.2d 805 [1976] ). Plaintiff contends that Supreme Court erred in granting the motion because defendants’ expert failed to assume the truth of plaintiff's deposition testimony. We reject that contention (cf. Ebbole v. Nagy , 169 A.D.3d 1461, 1462, 92 N.Y.S.3d 526 [4th Dept. 2019] ; cf. generally Jeannette S. v. Williot , 179 A.D.3d 1479, 1482, 118 N.Y.S.3d 329 [4th Dept. 2020] ). To the contrary, in this common-law negligence action arising from an allegedly dangerous condition on the premises, defendants did not dispute plaintiff's testimony describing the incident and submitted evidence establishing that they did not own or operate any of the equipment in the area where plaintiff testified that he was injured. Consequently, defendants "establish[ed] as a matter of law that they did not exercise any supervisory control over the general condition of the premises [in that area, and] that they neither created nor had actual or constructive notice of the dangerous condition on the premises" ( Perry v. City of Syracuse Indus. Dev. Agency , 283 A.D.2d 1017, 1017, 726 N.Y.S.2d 311 [4th Dept. 2011] ; see Burns v. Lecesse Constr. Servs. LLC , 130 A.D.3d 1429, 1434, 12 N.Y.S.3d 722 [4th Dept. 2015] ; Ozimek v. Holiday Val., Inc. , 83 A.D.3d 1414, 1416, 920 N.Y.S.2d 528 [4th Dept. 2011] ). Plaintiff failed to raise a triable issue of fact in opposition (see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).