Scherma v City of New York (2014 NY Slip Op 50331(U))

Scherma v City of New York

2014 NY Slip Op 50331(U) [42 Misc 3d 1234(A)]

Decided on March 10, 2014

Supreme Court, Richmond County

Aliotta, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The following papers numbered 1 to 4 were fully submitted on the 19th day of December, 2013:

(Dated: October 28, 2013)....................................2

Plaintiff's Affirmation in Opposition to Defendant

(Dated: October 30, 2013)....................................3

Omnibus Reply Affirmation and

(Dated: December 17, 2013)...................................4

______________________________________________________ ___________

Upon the foregoing papers, the motion for summary judgment of defendant The Brooklyn Union Gas Company, d/b/a National Grid NY and Keyspan Corporation (hereinafter "National Grid") is granted and the complaint as against this defendant is severed and dismissed.

This matter arises out of a trip-and-fall occurring on April 12, 2009, on the roadway located "in front of 576 Wilson Avenue and/or in front of the area between 576 and 578 Wilson Avenue, between Van Brunt Avenue and Wainwright Avenue in the County of Richmond, City [*2]and State of New York" (see Plaintiff's Verified Bill of Particulars, National Grid's Exhibit A, para 3). Plaintiff claims that while attempting to cross Wilson Avenue, her right foot encountered the "lip [of a] pothole" which caused her to fall and injure her right ankle (see Plaintiff's October 7, 2010 deposition, National Grid's Exhibit E, p 18). Plaintiff was unable to describe the dimensions of the subject pothole (id.), but she did notice that orange construction cones bearing DOT markings were positioned on the sidewalk directly across the street from where she fell, in a vicinity where some re-paving had apparently taken place (id. at p 21). When asked to approximate the distance between the pothole and the re-paving, plaintiff answered: "Well, they were both in the street. And it had to be...two to three feet...I couldn't touch it, so I'm assuming it was three feet from where I was" (id. at p 21).

Attached to National Grid's motion as Exhibit F are six photographs of the accident site taken by plaintiff's son shortly after the incident, three of which plaintiff marked at her deposition to show the exact location of her fall (see National Grid's Exhibit F). Consistent with plaintiff's deposition testimony, it is evident from the photographs that a portion of Wilson Avenue was being re-paved in the vicinity of the subject pothole.

In support of its motion for summary judgment on the grounds that it did not perform any work at the location of plaintiff's accident, National Grid attaches the June 24, 2013 affidavit of Walter Stone, its now-retired Senior Administrator (see National Grid's Exhibit N), who sets forth, inter alia, that the "closest street opening performed by [National Grid] in relation to the accident location was at least 8 feet from the accident location" (see National Grid's Exhibit N, para 8). According to Mr. Stone, only two New York City street opening permits exist for the relevant time period. One was issued on November 13, 2008 for 589 Wilson Avenue, and was scheduled to expire on December 13, 2008, i.e., four months prior to the date of plaintiff's accident. The second permit was issued for 561 Wilson Avenue on March 13, 2009 and had an expiration date of April 13, 2009. Moreover, it appears undisputed that National Grid had performed the necessary street openings relative to the installation of gas service to both 561 and 571 Wilson Avenue. However, it is maintained that it performed no work in front of 578 Wilson Avenue ^[FN1].

In opposition to the motion, plaintiff has produced a National Grid service record for the exact location of the alleged incident (i.e., 578 Wilson Avenue), dated September 13, 2005, which indicates that the street had been opened at that time. Joining with plaintiff, the City of New York concurs in the argument that movant's own service records indicating that it had opened the street in front of 578 Wilson Avenue three and one-half years prior to plaintiff's fall is sufficient to preclude summary judgment by raising a triable issue of fact as to whether the cause of the pothole where plaintiff was purportedly injured was the result of negligent street repair.

In reply, National Grid has proffered the December 16, 2013 affidavit of the aforementioned Mr. Stone (see National Grid's Omnibus Reply Affirmation, Exhibit A) who, after searching for street opening permits in the subject area for the previous ten years, averred that not one of the additional four permits which he found relate to work performed at the [*3]location marked by plaintiff as depicting the accident site.

It is well settled that summary judgment is a drastic remedy, which should only be granted where there is no doubt as to the absence of triable issues of fact (Kolivas v. Kirchoff, 14 AD3d 493, quoting Andre v. Pomeroy, 35 NY2d 361, 364 [internal quotation marks omitted]). It is equally well established that the proponent of a motion for summary judgment must make a prima facie showing of its right to judgment as a matter of law by the tender of proof in admissible form demonstrating the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320,324; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067). If the movant can sustain this burden, the burden of going forward then shifts to the party opposing the motion to produce evidentiary proof sufficient to establish the existence of material issues of fact which require a trial (see Zuckerman v. City of New York, 49 NY2d 557, 562).

Here, it is the opinion of this Court that the moving defendant, National Grid, has met its prima facie burden of proof for summary judgment through, inter alia, the uncontroverted affidavit of its former Senior Administrator, Walter Stone, who averred that National Grid had performed no recent work on Wilson Avenue within eight feet of the location identified by plaintiff. Combined with the parties' deposition testimony and the records which National Grid has attached to the motion, the evidence is sufficient to demonstrate prima facie that the moving defendant did not perform any recent work in the area where plaintiff allegedly fell and, therefore,is entitled to judgment as a matter of law dismissing the complaint as against it (see Flores v. City of New York, 29 AD3d 356; Robinson v. City of New York, 18 AD3d 255).

In the absence of any non-speculative evidence to the contrary, plaintiff's and the City's apparent reliance on so much of National Grid's internal records as appear to indicate that this defendant had opened the street at the accident location more than three years earlier is legally insufficient, standing alone, to raise a triable issue of fact. In other words, viewing the evidence in the light most favorable to plaintiff and the City, in order to impose liability on National Grid in connection with plaintiff's fall, a jury would be required to speculate that the pothole in question was the product of its negligent repair of the street in front of 578 Wilson Avenue in or about 2005 rather than normal wear-and-tear. "[E]xpressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557, 562).Finally, plaintiff waived her right to further disclosure upon the filing of her note of issue and certificate of readiness on June 26, 2013, stating that discovery was complete and that there were no outstanding disclosure requests (see Melcher v. City of New York, 38 AD3d 376).

ORDERED that the motion for summary judgment by defendant The Brooklyn Union Gas Company d/b/a National Grid NY and Keyspan Corporation is granted; and it is further

ORDERED that the complaint and any cross claims as against this defendant are hereby severed and dismissed; and it is further