The following papers numbered 1 to 7 were marked fully submitted on the 13th day of February, 2014.

Papers

Numbered

Notice of Motion for Summary Judgment by Defendant CONSOLIDATED EDISON

COMPANY OF NEW YORK, INC., with Supporting Papers, and Exhibits

(dated November 18, 2013) 1 [*2]

Notice of Cross Motion to Dismiss of Defendant NEW YORK CITY TRANSIT

AUTHORITY, with Supporting Papers, and Exhibits

(dated January 2, 2014) 2

Plaintiff's Affirmation in Opposition to the Motion of Defendant CONSOLIDATED

EDISON COMPANY OF NEW YORK, INC.,

(dated January 2, 2014) 3

Plaintiff's Affirmation in Opposition to the Cross Motion of Defendant NEW YORK

CITY TRANSIT AUTHORITY,

(dated January 6, 2014) 4

Reply Affirmation of Defendant CONSOLIDATED EDISON COMPANY OF NEW

YORK, INC.

(dated January 30, 2014) 5

Reply Affirmation of Defendant NEW YORK CITY TRANSIT AUTHORITY,

(dated February 12, 2014) 6

Upon the foregoing papers, the motion for summary judgment of defendant CONSOLIDATED EDISON COMPANY OF NEW YORK is granted, as is the cross motion to dismiss of defendant NEW YORK CITY TRANSIT AUTHORITY.

Plaintiff commenced this action to recover damages for injuries sustained on November 1, 2011, when he allegedly tripped over a wire that was strewn about the ground at or near a bus stop on the southwest side of Arthur Kill Road, at the intersection of Richmond Valley Road, on Staten Island. It is alleged that the wire was attached to a utility pole, and that the excess wire was strewn all over the ground, covered by dirt and leaves. Plaintiff's foot became caught in the wire, and he fell onto a rock.

As a result of said fall, plaintiff claims to have sustained serious injuries to his back including, inter alia, L2-L3, L3-L4, L5-L5 annular bulge which ventrally flattens the thecal sac; bilateral L4-5 radiculopathy with denervation in the paraspinal muscles; pain in lower back radiating to the right leg and into the foot; disc bulges at C3-C4. C4-C5, C5-C6, and C6-C7; and central disc herniation at T3-T4. In addition, it is alleged in the bill of particulars that the accident has had a significant and deleterious effect on plaintiff's physical and mental well-being; and that the injuries sustained are accompanied by intense pain, soreness, swelling and discomfort, as well as headaches and limitations or restriction in movement. All of the injuries have existed up to the present time, and are said to be permanent.

In the current application, CONSOLIDATED EDISON COMPANY OF NEW YORK (hereinafter CON ED) moves for summary judgment, contending that there is no proof connecting it to the site of the accident. According to CON ED, the EBT testimony and [*3]affidavits submitted in support of its motion all serve to establish that it did not own or control the wire that caused plaintiff to fall. In fact, it is alleged that the proof establishes that the subject wire belonged to codefendant VERIZON NEW YORK INC. (hereinafter VERIZON). In addition, CON ED argues that a record search failed to reveal any work performed by CON ED at the subject accident site. Accordingly, it claims to bear no liability for the happening of the subject accident.

In support, CON ED relies, inter alia, on the EBT testimony of Mario Caldarera, VERIZON's engineering manager, who inspected the subject location, and concluded that the pole belonged to CON ED, but that the "strand" wire belonged to VERIZON. Mr. Caldarera explained that when he inspected the pole, he reported his findings to his construction personnel, advised them that the unsafe condition that needed correction, and that, in fact, the problem was corrected within the next few days, when VERIZON's construction department removed the strand wire that had been hanging from the pole.

Mr. Caldarera further explained that strand wires can be used to support either a pole or a cable, and that when used to support a pole, it is attached to the ground by an anchor. Here, however, he did not observe any anchor in the ground. According to the witness, in other cases, the cable would be used to run wire from pole to pole. This witness also stated that the type of hardware used to attach the strand to the pole was of the type used by VERIZON as a support cable to guide its wire between poles. Finally, the witness observed that the subject wire was attached to the lower section of the pole, in an area which is referred to as the "communication space".

CON ED has also submitted the affidavit of a field "tech specialist", Vito Minucci, who reviewed photographs of the site, inspected the location, and made note of the "Mains and Services" plate number, the pole number, and its location. The witness also reviewed a "spec" sheet which indicates the wires and equipment used by the various companies which attach wires to a CON ED pole, and illustrates where on the pole the wires must be placed. As a result of his review, the witness concluded that the wire attached to the pole belonged to VERIZON.

In addition, CON ED has submitted the affidavit of an employee, Patrick Keogh, who conducted a search of CON ED's records for work performed at the subject location for a period of two years prior to plaintiff's accident. According to Mr. Keogh, there was no record of any opening tickets, paving orders, or permits. Allegedly, the only item that surfaced during his search was an emergency ticket pertaining to a nearby pole where secondary wires had to be tied up so that tree trimmers could perform their work. However, none of this work had anything to do with the pole in question.

In opposition, plaintiff contends that questions of fact exist regarding the negligence of the respective defendants, including CON ED. According to plaintiff, the EBT testimony of VERIZON's witness, Mario Caldarera, indicates that upon his inspection of the area where plaintiff fell, he identified the wire as VERIZON's, but that it was attached to a pole owned by CON ED. Plaintiff contends that since CON ED was the owner of the pole, it was obligated to keep it free from any defects or hazardous conditions.

In its cross motion to dismiss, codefendant NEW YORK CITY TRANSIT AUTHORITY (hereinafter NYCTA) contends that it does not own, maintain, operate or control the utility pole, the utility wire, the bus stop, or the public streets and sidewalks. Therefore, it cannot be held [*4]liable for causing plaintiff to trip and fall. According to the NYCTA, plaintiff testified at his EBT that his fall occurred on Arthur Kill Road, at or near a bus stop, when his foot came into contact with a wire hidden by dirt and leaves. He later observed that the wire was connected to a nearby telephone pole. Thus, none of his testimony connected his fall to any conduct attributable to the NYCTA. Moreover, it contends that the streets and sidewalks are the inalienable property of THE CITY OF NEW YORK (hereinafter THE CITY), and that it is the duty of the latter and/or the owner or lessee of the abutting property to maintain the streets and sidewalks in good repair and free from defects or dangerous conditions.

In support of dismissal, the NYCTA claims that plaintiff has failed to show that it was involved in any way with the subject property, or that it owed him any duty of care with regard to the subject location. In this regard, the cross-movant has submitted a copy of the EBT testimony of Sarah Wyss, its Director of Short Range Bus Service Planning, who testified that the installation and maintenance of bus stops are the responsibility of the Department of Transportation (hereinafter DOT), and that any repair issues or complaints reported to the NYCTA are referred to the DOT. In addition, the NYCTA argues that the utility pole in question was owned by CON ED, and that the wire in question was identified as the property of VERIZON, which removed it. Accordingly, the NYCTA contends that the complaint fails to state a cause of action against it.

In opposition to the cross motion, plaintiff contends that based on the EBT testimony of the NYCTA's own witness, Ms. Wyss, it was the responsibility of the NYCTA to report any hazardous conditions located at a bus stop to the DOT, and that wires hanging from a utility pole, which were strewn across a NYCTA bus stop was a hazardous condition that needed to be reported and corrected. Accordingly, a question of fact exists regarding the negligence of the NYCTA in failing to report the hazard extant at the bus stop where plaintiff fell.

In its reply affirmation, the NYCTA argues that plaintiff has mischaracterized the EBT testimony of Ms. Wyss, who did not state that it was the duty of the NYCTA to inspect bus stops for hazards. Rather, she testified that if a dangerous condition was observed at the bus stop, it was the custom and practice to report same to THE CITY agency responsible for correcting the condition. In brief, the NYCTA reiterates that since it was not the owner of the property where plaintiff fell, it had no duty to oversee its maintenance in a reasonably safe condition.

The motion and cross motion are granted.

It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). Once that initial burden has been satisfied, however, it is incumbent upon the party opposing the motion to adduce sufficient admissible evidence of the existence of a triable issue of fact (id.). Thus, the court's only role in deciding a motion of summary judgment is to determine whether any material issues of fact exist which require a trial. However, "[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat the motion (Zuckerman v. City of New York, 49 NY2d 557, 562). Nevertheless, since summary judgment is the procedural equivalent of a trial, the presence of any significant doubt as to the existence of a triable issue, or where the existence of such an issue is even "arguable", the motion must be denied (see Phillips v. Kantor & Co., 31 NY2d 307, 311). [*5]

Here, it is the opinion of this Court that CON ED has established its prima facie entitlement to judgment as a matter of law. In opposition, plaintiff has failed to a raise triable issue of fact.

At bar, the testimonial evidence establishes unequivocally that CON ED did not own, install, maintain or control the wire which caused plaintiff to trip and fall. Nor is there any evidence that it was contractually obligated to maintain the subject wire. Accordingly, it owed no duty of care to plaintiff with regard to the wire which caused him to fall (see Impenna v. City of New York , 256 AD2d 551; see also Smith v. Guiffre Hyundai, Ltd., 60 AD3d 1040, 1042). In addition, there is no proof that CON ED performed any work at the subject location which may have caused the dangerous condition to exist (see Cibener v. City of New York, 268 AD2d 334).

Inasmuch as plaintiff's opposition papers are predicated upon speculations and/or unsubstantiated allegations regarding CON ED's involvement with the either the site or the wire which purportedly felled plaintiff (see Zuckerman v. City of New York, 49 NY2d at 562), CON ED's motion for summary judgment dismissing the complaint and all cross claims against it is warranted in this case.

For similar reasons, the NYCTA is entitled to dismissal of the complaint and any cross claims asserted against it. In determining a motion to dismiss the complaint for failure to state a cause of action, the facts alleged in the complaint must be accepted as true and accorded every possible favorable inference in deciding whether the pleading states a claim cognizable at law (see Leon v. Martinez, 84 NY2d 83, 87-88). Only bare legal conclusions or factual claims that are flatly contradicted by the evidence will not be presumed to be true on such a motion (see Meyer v. Guinta, 262 AD2d 463, 464). However, where evidentiary material is considered on a motion to dismiss, the court is required to determine whether the proponent of the pleading actually has a cause of action, not merely whether she or he has stated one, and unless it can be shown that a material fact claimed by the pleader is not one at all, and that no significant dispute exists regarding it, the complaint should not be dismissed (see Leon v. Martinez, 84 NY2d at 88; Guggenheimer v. Ginzburg, 43 NY2d 268, 275).

Here, it is the opinion of this Court that the allegations made against the NYCTA in the complaint consist of bare legal conclusions and factual claims that have been flatly contradicted by the proof submitted on the cross motion. In fact, such proof conclusively negates any obligation on the part of the NYCTA regarding its ownership, management, and/or control of the bus stop, utility pole or the tangle of wire which allegedly caused plaintiff to fall. In particular, the unimpeached EBT testimony of Sarah Wyss explains the NYCTA's limited role in the maintenance of bus stops, and the minimal nature of any obligations arising therefrom. Moreover, the unrebutted testimony of VERIZON's witness, Mr. Caldarera, indicated that VERIZON was the owner of the subject wire, and that he sent out a construction crew to correct the situation within the next few days. There is no dispute that the pole in question is owned by CON ED. Finally, plaintiff himself testified that the presence of the wire was obscured by leaves and other debris. In the absence of any proof refuting NYCTA's relationship to, or responsibility for the condition claimed to have caused plaintiff's fall, it is clearly entitled to dismissal of the complaint pursuant to CPLR 3211(a)(7).

Accordingly, it is [*6]

ORDERED that the motion and cross motion by defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and the NEW YORK CITY TRANSIT AUTHORITY for dismissal of the complaint and any cross claims against them, is granted; and it is further

ORDERED that the complaint and cross claims against both of these defendants are severed and dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

/s/Hon. Thomas P. Aliotta

J.S.C.

Dated: April 4, 2014