Villanueva v Rambarran

Supreme Court, New York County

Decided on January 9, 2026

Index No. 156049/2021

Christopher Chin, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 were read on this motion to/for JUDGMENT - SUMMARY.

Pursuant to CPLR 3212, defendant Consolidated Edison Company of New York, Inc. ("Con Ed") moves for summary judgment to dismiss plaintiff Ralph Villanueva's complaint and dismiss co-defendant Krishan Rambarran's crossclaims asserted against it. Plaintiff opposes the motion. Co-defendant Krishan Rambarran did not submit opposition papers to Con Ed's motion. For the reasons below, Con Ed's motion is denied.

BACKGROUND AND PROCEDURAL HISTORY

On June 2, 2021, plaintiff was struck by a motor vehicle, driven by Mr. Rambarran, while [*2]in the crossing 109th Avenue at its intersection with Van Wyck Boulevard in Queens County (NY St Cts Elec Filing [NYSCEF] Doc No. 34, Con Ed's exhibit C, plaintiff's bill of particulars; NYSCEF Doc No. 36, Con Ed's exhibit E, plaintiff's deposition tr at 14, 21-22; NYSCEF Doc No. 37, Con Ed's exhibit F, Ryan Williams' deposition tr at 23). It is undisputed that 109th Avenue is a two-way street, with a double yellow line and that the Con Ed vehicle was parked on 109th Avenue, obstructing part or all of the crosswalk for pedestrians crossing 109th Avenue. Ryan Williams, a cable lead mechanic with Con Ed, testified that he and his team were working at the intersection when plaintiff's accident occurred (NYSCEF Doc No. 37 at 16, 22). The Con Ed team was working to access a service box that contains lower voltage lines to carry the secondary lines for electric distribution (id. at 25-26). A service box looks similar to a manhole and is covered by a round, metal cover (id. at 26-27). The truck Mr. Williams and his team were using was a cable puller truck that removes and feeds cable (id. at 75-76). Mr. Williams stated that safety protocols were followed at the job site but did not specifically remember what the precise safety equipment that was used (id. at 45-46, 51, 53). He also stated that there are no records or pictures regarding what safety measures were used at this particular site and therefore one would need to ask a worker present to ascertain what safety measures were used. (id.). Mr. Williams explained that the number of safety cones used at a job site is based on several factors, such as traffic circumstances, but that normally six cones are used (id. at 49-50). He testified that a "man working" sign was placed on the work site as well as other safety measures but no flagger or flag person was present (id. at 62, 63-65, 66-69, 88). He also recalled a "sidewalk closed" sign was used at the location (id. at 111). Mr. Williams testified that he saw plaintiff walk quickly and "wiggle" his way between the Con Ed truck and the iron pole that came out of the truck before being hit by a minivan (id. at 119-22). He testified that with the Con Ed truck parked on 109th Avenue, he was unsure if a vehicle traveling on that side of the double lines could pass without crossing the double yellow lines, or that "it will be very tight" for a vehicle to do so. (id. pg. 107)

Plaintiff testified that as he approached the intersection, he saw the Con Ed truck in the crosswalk, which occupied more than half of it (NYSCEF Doc No. 36 at 16, 22). Plaintiff stated that he was unable to see the traffic control device or the traffic light before crossing the street because the Con Ed truck was tall and obstructed his view (id. at 24, 41). Plaintiff observed workers standing around a manhole with only one orange and white safety pole by the manhole (id. at 42-43). When he entered the crosswalk, plaintiff was struck by a minivan before he had an opportunity to look both ways before crossing the street (id. at 22-23).

Con Ed's "Work Area Protection and Traffic Control" manual provided the necessary steps to ensure work area safety (NYSCEF Doc No. 41, Con Ed's exhibit J, field manual). The field manual stated that field workers need to evaluate the work area and must consider pedestrian traffic by observing pedestrian routes (id. at 5). It also said that the vehicle's hazard lights must be operational and visible to approaching traffic and that traffic control devices must be setup to control vehicle and pedestrian traffic by providing clearly defined boundaries (id. at 6). The field manual also provided that when cables trucks are at an intersection with pedestrian crosswalks, a flagger may be used but is not necessary (id. at 21). However, a flagger is required where traffic must be controlled at certain work sites (id. at 29). Ultimately, warning signs, traffic cones, and other pedestrian safety measures are required (id. at 21). A review of the ConEdison Work Area Protection and Traffic Control Field Manual (pg. 53) reveal that flaggers are required when traffic in both directions must use a single lane for a limited distance. On page [*3]52 of this manual, there is a diagram that illustrates what safety measures are needed at a work site situation similar to the conditions present at the time of the accident. According to this diagram, a flagger should be utilized.

On June 24, 2021, plaintiff commenced this action by filing a summons and complaint against defendants (NYSCEF Doc No. 32, Con Ed's exhibit A, plaintiff's summons and complaint). On September 13, 2021, and February 10, 2022, Con Ed and Mr. Rambarran filed their answers, respectively (NYSCEF Doc No. 33, Con Ed's exhibit B, defendants' answers). Mr. Rambarran's answer asserted two crossclaims against Con Ed for common law indemnification and contribution (id.). Con Ed filed its amended answer on March 2, 2022, with responses to Mr. Rambarran's crossclaims (NYSCEF Doc No. 13, Con Ed's amended answer).

LEGAL STANDARD

"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 eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Pullman v Silverman, 28 NY3d 1060, 1062 [2016]). Without a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing papers (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The moving party has a heavy burden as the facts must be viewed in a light most favorable to the non-moving party (William J. Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]; see also Bazdaric v Almah Partners LLC, 41 NY3d 310, 316 [2024]). If the moving party meets their burden, the opposing party must produce evidentiary proof in admissible form that is sufficient to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Stonehill Capital Mgt., LLC v Bank of the W., 28 NY3d 439, 448 [2016]). Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient to defeat a summary judgment motion (Justinian Capital SPC v WestLB AG, NY Branch, 28 NY3d 160, 168 [2016]).

Conflicting deposition testimony as to how an accident occurred is a question of fact for a jury to decide (Majstorovic v Best Mkt., 215 AD3d 560, 560-61 [1st Dept 2023]). As such, issues of fact and credibility cannot be resolved on summary judgment (Lopez v Rodriguez, 241 NYS3d 41, 2025 NY Slip Op 05633 [1st Dept 2025]; Legrand v USC-NYCON, LLC, 234 AD3d 596, 596-97 [1st Dept 2025]). However, a party's affidavit that contradicts their own sworn deposition testimony "creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment" (Alston v Elliott, 159 AD3d 575, 576 [1st Dept 2018] [internal quotation marks and citation omitted]).

DISCUSSION

Con Ed argues, among other things, that it is entitled to summary judgment because its truck was a "hazard vehicle" at the time of the accident and did not act recklessly, complied with applicable highway safety laws, and was not the proximate cause of plaintiff's accident (NYSCEF Doc No. 31, Con Ed's support affirmation at 4-10). It asserts that since Mr. Williams and his team were working at a job site where they were feeding cable to the service box, the truck was engaged in a "hazardous operation" that exempts it from certain provisions of the Vehicle and Traffic Law (id. at 5). Additionally, Con Ed contends that it was not acting with reckless disregard for the safety of others, which is the standard for liability of hazardous vehicles, because it did not intentionally act to disregard a known or obvious risk of harm (id. at 6-7). Con Ed also argues that it complied with the safety protocols in the Manual on Uniform [*4]Traffic Control Devices for Streets and Highways published by the Federal Highway Administration (id. at 8-9). Con Ed asserts that plaintiff's negligence is the cause of the accident because he did not look for traffic before crossing the street and codefendant, Rambarran, while driving the minivan, hit plaintiff (id. 10). Finally, it argues that defendant Rambarran contributed to the accident so he is unable to prevail on his crossclaims for contribution and indemnification (id. at 11).

Plaintiff's response argues, among other things, that Con Ed has failed to meet its prima facie burden (NYSCEF Doc No. 44, plaintiff's opp affirmation at 5-6). Plaintiff contends that there are factual questions remaining as to whether adequate safety devices were used (id.). Plaintiff asserts that Con Ed acted with reckless disregard for his safety by not closing off the crosswalk to pedestrians, using signs, and a flag person to protect pedestrians (id.). Plaintiff also argues that he did not see any safety devices used at the worksite nor did he squeeze through any barricaded area around the worksite (NYSCEF Doc No. 45, plaintiff's aff).

Con Ed's reply reasserts much of the same arguments it initially advanced (NYSCEF Doc No. 47, Con Ed's reply). It additionally argues that plaintiff's affidavit containing statements that contradict his deposition testimony does not create a triable issue of fact (id. at 2).

Generally, hazard vehicles are exempt from the rules of the road regarding stopping, standing, and parking on highways when they are engaged in a hazardous operation (see Vehicle and Traffic Law § 1103 [b]). A "hazard vehicle" is one that is owned or leased by a utility used in the construction, maintenance, and repair of its facilities where the operation occurs on public highways in the course of their official duties (see Vehicle and Traffic Law § 117-a). A "hazardous operation" involves the "operation, or parking, of a vehicle on or immediately adjacent to a public highway while such vehicle is actually engaged in an operation which would restrict, impede or interfere with the normal flow of traffic" (Vehicle and Traffic Law § 117-b).

The protections of Vehicle and Traffic Law § 1103 (b) are task-specific. "[T]he exemption turns on the nature of the work being performed (construction, repair, maintenance or similar work)—not on the nature of the vehicle performing the work" (Riley v County of Broome, 95 NY2d 455, 464 [2000]). The exemption only applies when the work is being performed at the time of the accident (Orellana v Town of Carmel, 42 NY3d 526, 530 [2024]). Liability for a hazard vehicle falls under a recklessness standard of care, which requires a showing that the operator of the vehicle intentionally acted recklessly "in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1105 [2015] [internal quotation marks and citations omitted]). The failure to have a flagman or flagger can raise a triable issue of fact as to whether a defendant's conduct was reckless (see Mendoza v Grace Indus. Inc., 4 AD3d 272, 273-74 [1st Dept 2004]). The failure to follow required safety protocols can be indicative of recklessness (see e.g. Freitag v Village of Potsdam, 155 AD3d 1227, 1231 [3d Dept 2017]).

Here, Con Ed met its prima facie burden to dismiss plaintiff's complaint. At the time of the accident, Con Ed was actively working to access a service box at the intersection of 109th Avenue and Van Wyck Boulevard and did utilize warning signs. However, there is conflicting testimony as to whether the safety protocols deployed were sufficient and if any deficiency in the safety procedures rose to the level of recklessness, raising factual and credibility issues that cannot be resolved on summary judgment. Mr. Williams stated that he remembered seeing safety measures at the jobsite but could not recall exactly all the devices that were used. He did [*5]recall that there were no flaggers or flagman used on that sire. Plaintiff does not remember seeing any safety measures except for a single orange and white pole. Additionally, Mr. Williams conceded, after reviewing the photograph of the subject intersection, he was unsure if a vehicle traveling on the same side of the road as where the Con Ed vehicle was parked could pass without driving over the double yellow lines, or at least "it will be very tight". Con Ed's field manual has a diagram (for what safety measures were needed) which depicts a similar situation to that which existed at the time of plaintiff's accident — which depicts the use of a flagger. According to Con Ed's field manual, a flagger is required when traffic in both directions must use a single lane for a limited distance. Therefore, there are factual issues here, including as to whether a flagger should have been used as it is clear from the testimony that traffic in the two directions on 109th Avenue may have been required to use a single lane for a limited distance and whether the failure to use a flagger amounted to reckless disregard for the safety of others.

Con Ed failed however to meet its prima facie burden to dismiss defendant Rambarran's crossclaims for contribution/indemnification. In seeking dismissal, the only argument proffered in Con Ed's papers are that Rambarran clearly contributed to the accident because plaintiff was struck by that vehicle. No precedent is cited for this legal conclusion. Nor is any testimony cited to establish that Con Ed did not owe defendant Rambarran contribution/indemnification as a matter of law. Moreover, while Rambarran drove the vehicle that struck plaintiff and thus may have contributed to the accident, since at this juncture there has been no determination of negligence on Rambarran's part, nor has Con Ed established as a matter of law that it is free from negligence, Con Ed's motion for dismissal of the crossclaims for indemnification/contribution is premature and, therefore denied (see County of Orange v Hartford Acc & Indemn. Corp., 226 AD2d 578 [2d Dept 1996]).

Accordingly, it is

ORDERED that, pursuant to CPLR 3212, defendant Consolidated Edison Company of New York, Inc.'s motion for summary judgment on its claim to dismiss plaintiff Ralph Villanueva's complaint and defendant Krishan Rambarran's crossclaims is denied; and it is further

ORDERED that, within 20 days from entry of this order, defendant Consolidated Edison Company of New York, Inc. shall serve a copy of this order with notice of entry upon all parties.

This constitutes the decision and order of the court.

DATE January 9, 2026

CHRISTOPHER CHIN, J.S.C.