The plaintiffs commenced this negligence action to recover damages for personal injuries allegedly sustained by plaintiff Isa Lagamba, at approximately 2:30 PM on April 28, 2011, as a result of being struck by a falling light pole. The incident occurred while she walking to her car in the parking lot across the street from her workplace, a school located at 190 Beach 110th Street in Rockaway Park, Queens, New York. The subject light pole and a utility pole whose bases were directly adjacent to a trench dug just prior to the incident by defendant Carelli pursuant to a contract with the Verizon defendants (Verizon) simultaneously fell. As the light pole fell on the injured plaintiff, the utility pole struck several cars that were in the parking lot. The plaintiff contends that the digging of the trench destabilized the utility/light pole and caused it to fall, thereby resulting in her injuries.

According to the injured plaintiff, she arrived at work at approximately 7:30 AM on the date of the incident. At approximately 10:00 AM, she noticed some digging work being performed around a utility pole and into the roadway, which included breaking up the street adjacent to the pole that subsequently fell on her. When the plaintiff left work that afternoon, the workers were gone. She observed that orange cones had been placed around one of the poles and also that it was windy and raining heavily. It is alleged that the Verizon defendants [*2]owned, operated, managed and maintained the subject light pole and/or that by it agents and/or employees caused and created the alleged defective condition and allowed the pole to fall. In support of their request for summary judgment, the plaintiff also submitted an affidavit from engineer Stanley Fein, P.E. wherein he opined that performing the work on a rainy day without inspecting the pole after destabilizing it and without taking precautions to ensure its stability constituted negligence which was a substantial factor that proximately caused the pole to fall and injure plaintiff.Defendants Verizon seek summary judgment dismissing the claims against them on the issue of liability on the ground that they did not own the pole that fell and caused the plaintiff's injuries or perform the work at the site where the accident occurred. Verizon employee Dan Donovan, a 33 year employee, testified upon examination before trial that the work performed at the accident location included a "conduit print" indicating that PVC conduit casing was being installed at the accident location, which was performed by a Verizon contractor because Verizon did not have a crew that would have performed conduit installation. He also stated that any construction job that Verizon needed done which involved digging would be performed by an independent contractor because Verizon did not dig. A permit for the subject work was obtained by Verizon and the work was contracted to and performed by defendant Carelli Construction. When performing the work, Carelli Construction used its own workers and equipment and performed the entire project from the excavation of the roadway to the final restoration of the roadway/street opening. The conduit installation work performed at the site of the accident extended from the basement of the school located at 190 Beach 110th Street to 36 feet across the road to a denominated pole number eight. Mr. Donovan visited the accident site shortly after the incident. He indicated that the pole that fell on the injured plaintiff was owned by defendant LIPA. Several LIPA transformers were down as well.

Defendant Carelli Construction seeks summary judgment dismissing the claims against it on the ground that it did not perform any work on the pole that fell and caused the plaintiff's injuries. Defendant Carelli Construction appeared for examination before trial by Mr. Anthony Mignanelli, the president of Carelli Construction. Mr. Mignanelli indicated that he had a crew of five workers performing the work on Beach 110th Street on the day of the incident. After the job was done, the crew was to return to the site the following day to clean up the work area, remove the plastic orange cones and a plastic sheet used to cover the cement at the base of the pole where their work was performed. This pole is the pole that plaintiff had stated struck several cars after she [*3]was struck by the light pole. Upon returning to the work site the next day, Mr. Mignanelli was advised that all of the utility poles on that street had been toppled as a result of an overnight storm. He did not know which of his workers had performed the work but asserted that if a pole his crew had worked on was damaged or too weak to support their work, defendant Carelli Construction would have notified Verizon that it could not conduct the work it was hired to do. Mr. Mignanelli did not indicate whether any such notice was given to Verizon.

Defendants The City of New York and the New York City Department of Transportation seek summary judgment dismissing the claims against them on the ground that they owed no duty to the plaintiff in connection with the incident. According to the affidavit of Mr. George Bermudez, the Deputy Chief Electrical Inspector in the Street Lighting Unit of New York City's Department of Transportation, he inspected the records associated with the utility poles located at the subject location. He determined that the subject utility poles were situated on private property and attested that the City defendants neither owned nor maintained the pole that caused the plaintiff's injuries. This evidence has not been contradicted.

There is no basis for the plaintiffs' claims against defendants The City of New York and the New York City Department of Transportation. Generally speaking, liability for a dangerous condition on real property is predicated upon ownership, occupancy, control, or special use of the property (Kubicsko v. Westchester County Elec., Inc., 116 AD3d 737 [2014]). While the existence of one or more of these elements is sufficient to give rise to a duty of care, where as in this case none of the prescribed elements is present, a defendant cannot be held liable for injury caused by a dangerous condition on a premises ( Knight v. Realty USA.COM, Inc., 96 AD3d 1443 [2012]). In this case, defendants The City of New York and the New York City Department of Transportation met their initial burden on the motion by establishing that they did not own, occupy, control or employ the parking lot where the accident occurred it for a special use. In opposition, the plaintiffs have failed to raise a triable issue of fact( Zuckerman v. City of New York, 49 NY2d 557 [1986]. Accordingly, since it has been demonstrated they did not owe the injured plaintiff a duty of care, defendants The City of New York and the New York City Department of Transportation's cross-motion for an award of summary judgment dismissing the claims against them is granted.

Inasmuch as the other movants' submissions highlight rather than eliminate the existence of a triable issue of fact regarding the nature and cause of the alleged dangerous condition, the [*4]motions and cross motions for summary judgment on the issue of liability are in all other respects denied (see generally, Alvarez v Prospect Hospital, 68 NY2d 557 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Since there has not yet been a finding with respect to any party's liability for the accident, summary judgment on the movants' claims for indemnification are denied as premature (Dautaj v. Alliance Elevator Co., 110 AD3d 839 [2013]; Fritz v. Sports Auth., 91 AD3d 712 [2012]).

August 4, 2014______________________________

ROBERT J. McDONALD

J.S.C.