Opinion
2014-10-22
Antonia ZHILKINA, plaintiff-respondent, v. CITY OF NEW YORK, et al., defendants-respondents, et al., defendants, Alex Figliolia Contracting, Inc., appellant (and a third-party action).
French & Casey, LLP, New York, N.Y. (Jenna E. Elkind and Joseph A. French of counsel), for appellant. William Pager, Brooklyn, N.Y., for plaintiff-respondent.
French & Casey, LLP, New York, N.Y. (Jenna E. Elkind and Joseph A. French of counsel), for appellant. William Pager, Brooklyn, N.Y., for plaintiff-respondent.
Zachary W. Carter, Corporation Counsel New York, N.Y. (Leonard Koerner and Kristin M. Helmers of counsel), for defendant-respondent City of New York.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the defendant Alex Figliolia Contracting, Inc., appeals from an order of the Supreme Court, Kings County (Landicino, J.), dated September 27, 2012, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed, on the law, with one bill of costs, and the motion of the defendant Alex Figliolia Contracting, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
The appellant is a contractor that was issued a permit in January 2001 to open the roadway and repair a water main break located at 675 Avenue Z in Brooklyn. The appellant excavated an area at that location, repaired the water main, and repaved the roadway. In February 2006, the plaintiff allegedly tripped and fell on a bump in the road near 675 Avenue Z and sustained personal injuries.
A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk ( see Brown v. Welsbach Corp., 301 N.Y. 202, 205, 93 N.E.2d 640; Walton v. City of New York, 105 A.D.3d 732, 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).
The appellant met its burden in moving for summary judgment by offering proof that it did not create the alleged defect which caused the plaintiff's fall. In opposition, the evidence that the plaintiff submitted failed to raise a triable issue of fact as to whether the work the appellant performed created the alleged defect ( see Cendales v. City of New York, 25 A.D.3d 579, 581, 807 N.Y.S.2d 414; Maloney v. Consolidated Edison Co. of N.Y., Inc., 290 A.D.2d 540, 541, 736 N.Y.S.2d 630; Kuller v. Potashner, 268 A.D.2d 563, 702 N.Y.S.2d 560). Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.