Salazar v Tri-Messine Constr. Co., Inc.

Supreme Court, Richmond County

Decided on June 8, 2026

Index No. 152853/2024

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR � 2219 [a]

The following papers, filed in the New York State Courts Electronic Filing System ("NYSCEF"), were read and considered by this Court in connection with the motion of Plaintiff Roberto C. Salazar (Motion Sequence No. 001) for partial summary judgment on the issue of liability pursuant to CPLR � 3212 and Defendant Tri-Messine Construction Company, Inc. ("Tri-Messine") for summary judgment pursuant to CPLR � 3212:

Plaintiff's Motion Sequence No. 001: Plaintiff's Notice of Motion (NY St Cts Filing [NYSCEF] Doc No. 27); Affirmation in Support of Corey Morgenstern, Esq., dated April 1, 2026, with annexed exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 28-37); Affirmation in Opposition of Patricia Donohoe, Esq., dated May 26, 2026, on behalf of Defendant The Brooklyn Union Gas Company d/b/a National Grid NY with annexed exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 52-54); Affirmation in Opposition of Jennifer M. Belk, Esq., dated May 27, 2026, on behalf of Defendant Tri-Messine with annexed exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 58-59) ; and all pleadings and proceedings heretofore had herein. Reply on Motion Sequence No. 001 was waived.

Defendant Tri-Messine's Motion Sequence No. 002: Notice of Motion (NY St Cts Filing [NYSCEF] Doc No. 38); Affirmation in Support of Jennifer M. Belk, Esq., dated April 2, 2026, with Exhibits A through K annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 39-50); Affirmation in Opposition of Corey Morgenstern, Esq., dated April 20, 2026, on behalf of Plaintiff Roberto C. Salazar (NY St Cts Filing [NYSCEF] Doc No. 51); Affirmation in Opposition of Patricia Donohoe, Esq., dated May 26, 2026, on behalf of Defendant The Brooklyn Union Gas Company d/b/a National Grid NY with annexed exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 55-57); Reply Affirmation of Jennifer M. Belk, Esq., dated June 1, 2026, in response to Plaintiff's Opposition (NY St Cts Filing [NYSCEF] Doc No. 60); Reply Affirmation of Jennifer M. Belk, Esq., dated June 1, 2026, in response to National Grid's Opposition (NY St Cts Filing [NYSCEF] Doc No. 61); and all pleadings and proceedings heretofore had herein.

[*2]II. Findings of Fact

This action arises from a personal injury incident alleged to have occurred on the evening of May 23, 2023, at approximately 9:30 p.m., at or near the intersection of Wayne Street and Alaska Street in the Borough of Staten Island, County of Richmond, City and State of New York. Plaintiff Roberto C. Salazar ("Plaintiff" or "Salazar") commenced this action by the filing and service of a Summons and Verified Complaint on December 23, 2024, seeking to recover damages for personal injuries he allegedly sustained when the electric scooter he was operating struck a stack of metal roadway plates that had been left in the roadway near said intersection. (NY St Cts Filing [NYSCEF] Doc No. 29). Defendant The Brooklyn Union Gas Company d/b/a National Grid NY ("National Grid" or "BUG") interposed a Verified Answer on or about February 21, 2025. (NY St Cts Filing [NYSCEF] Doc No. 30). Defendant Tri-Messine Construction Company, Inc. ("Tri-Messine") interposed a Verified Answer on or about April 3, 2025. (NY St Cts Filing [NYSCEF] Doc No. 31). A Note of Issue and Certificate of Readiness was filed by Plaintiff on or about February 5, 2026. (NY St Cts Filing [NYSCEF] Doc No. 33). The instant motion for summary judgment was filed within sixty days of the filing of the Note of Issue and is therefore timely interposed.

A. The Circumstances of the Alleged Accident

Plaintiff appeared for his examination before trial on August 13, 2025. According to his sworn deposition testimony, Plaintiff had departed from his residence at 820 Henderson Avenue on the evening of the accident for the purpose of retrieving his son. (NY St Cts Filing [NYSCEF] Doc No. 34). Plaintiff was operating a sit-down electric scooter equipped with a headlight but was wearing no helmet or other safety equipment at the time of the accident. (see id at pages 31-39). Plaintiff traveled along Alaska Street and then executed a left turn onto Wayne Street. (see id at pages 44-45). Wayne Street is a two-way dead-end street approximately one block in length that forms a T-intersection with Alaska Street. (see id at pages 44-47; 74). There are no designated bicycle lanes on either Alaska Street or Wayne Street. (see id at pages 45-46). Plaintiff testified that he was traveling at a speed of approximately fifteen miles per hour when, immediately after completing his left turn onto Wayne Street, the front tire of his electric scooter struck a stack of steel roadway construction plates that had been left in the roadway near the curb at or adjacent to the corner of Wayne Street and Alaska Street. (see id at pages 58-63). Upon impact, Plaintiff was propelled forward from the scooter and fell to the pavement (see id at pages 64-66), sustaining injuries he described as including dental fractures, a closed head injury with post-concussive syndrome, dizziness, left shoulder strain, and cervical strain, as set forth in his Verified Bill of Particulars. (NY St Cts Filing [NYSCEF] Doc No. 32). Plaintiff testified that street lights were illuminated and that he possessed the ability to see at the time of the accident, though he could not state when he first observed the metal plates. (NY St Cts Filing [NYSCEF] Doc No. 34 at pages 33; 119-120). Plaintiff acknowledged that he did not know who owned the metal plates or who had placed them in the roadway. (see id at pages 54-55). Plaintiff further acknowledged that he had previously witnessed construction activity occurring in the vicinity of the accident location, specifically on Alaska Street, and that prior to the accident he had never lodged a complaint with any person or entity regarding the construction work or the presence of the metal plates. (see id at pages 50-51; 90-91).

The photograph taken by Plaintiff with his cellular telephone on the day following the accident, marked as Defendants' Exhibit A and identified by Plaintiff as accurately depicting the condition of the plates at the time of the accident, depicts three steel roadway plates stacked one [*3]atop the other, positioned adjacent to the curb in what appears to be a parking lane on Wayne Street. (NY St Cts Filing [NYSCEF] Doc No. 35). The plates in the photograph are not "ramped" with asphalt to render them flush with the roadway surface, and no traffic cones, barriers, warning markings, or other devices demarcating their presence are visible in the image. (see id).

B. The Gas Main Replacement Project

National Grid is engaged in the business of natural gas delivery. In Staten Island, National Grid operates under the name Brooklyn Union Gas Company. In the period preceding the accident, National Grid undertook a project entailing the replacement of gas mains in the vicinity of Wayne Street and Alaska Street. Multiple street opening permits were obtained by National Grid for this project, covering Wayne Street between Alaska Street and Chappel Street, Alaska Street between Wayne Street and Woodruff Street, and Alaska Street between Henderson Street and Wayne Street. (NY St Cts Filing [NYSCEF] Doc No. 35 at pages 30-31). These permits reflect a work start date of March 30, 2023, valid through June 27, 2023. (see id at page 21). The gas main installation and backfilling operations commenced on May 3, 2023, and were completed on May 22, 2023, the day immediately preceding Plaintiff's accident, however, the permanent pavement restoration had not been completed as of the date of the accident. (see id at pages 40-44).

Walter Stone, produced as National Grid's witness at examination before trial on December 4, 2025, testified that he performed a records search utilizing National Grid's internal databases, including Maximo (job control reports) and DPMS (Distribution Project Management System), covering a two-year period prior to and including the accident date. (see id at pages 11-14). Mr. Stone's search revealed paving orders establishing that plates were present at the subject location and that those plates had been placed by Brooklyn Union Gas. National Grid plates are inscribed with either "National Grid" or "N Grid." (see id at pages 11-16; 45). It was the customary practice of National Grid, where work extended over multiple days, to utilize roadway plates to temporarily cover open trench locations overnight. (see id at pages 54-55). The roadway plates weighed in excess of one thousand pounds and required a backhoe equipped with a chain to be moved. (see id at page 37). Where backfilling had been completed but permanent restoration remained outstanding, the roadway plates would remain in place until final restoration was accomplished. (see id at pages 42-45). Mr. Stone testified that if a National Grid plate was present at a paving location, the paving contractor's sole obligation was to move the plate aside in order to perform the restoration work and thereafter to notify National Grid that the plates were available for retrieval. (see id at pages 50-52). Mr. Stone further testified that it was National Grid's responsibility to place spikes and to ramp the roadway plates. (see id at pages 86-87).

C. Tri-Messine's Role and the Scope of Its Involvement

Tri-Messine is a paving and pavement restoration company that has been in continuous operation since 1966. (NY St Cts Filing [NYSCEF] Doc No. 37 at page 13). Tri-Messine performs permanent restoration to asphalt roadways and concrete sidewalks. (see id at page 17). In 2023, Tri-Messine was retained by National Grid as its paving contractor. (see id at page 20). The scope of Tri-Messine's contractual obligations was strictly and exclusively limited to pavement restoration work; Tri-Messine had no role in the gas main installation, no involvement in the placement or maintenance of roadway plates, and bore no contractual or common-law obligation to safeguard, ramp, warn about, or otherwise manage National Grid's roadway plates. (see id at pages 17-18; 55-64).

Alfonso Messina, the president and principal of Tri-Messine, was produced for examination before trial on December 4, 2025. Mr. Messina testified that Tri-Messine did not perform any work at the intersection of Alaska Street and Wayne Street prior to May 24, 2023, the day after Plaintiff's accident. (see id at page 68). This testimony was corroborated by documentary evidence in the form of a paving order (Exhibit K), which bears a date of May 24, 2023, constituting the date upon which National Grid transmitted the work order to Tri-Messine for the subject location and the date upon which Tri-Messine was directed to and did perform its paving restoration at the location. (NY St Cts Filing [NYSCEF] Doc No. 50). When Tri-Messine arrived at the location on May 24, 2023, the roadway had already been cut by National Grid and a roadway plate had already been placed in the cut. (NY St Cts Filing [NYSCEF] Doc No. 37 at pages 62-66). The particular work order contained a Code 91, signifying the presence of a National Grid steel roadway plate at the cut location. (see id at page 48). The dimensions of the relevant cut were ten feet. (see id at pages 18-49). Mr. Messina confirmed unequivocally that Tri-Messine did not supply its own roadway plates for this project, that Tri-Messine does not use plates at National Grid job sites, and that any plates belonging to Tri-Messine would bear the Tri-Messine name welded thereon. (see id at pages 19-20; 50; 63). Mr. Messina further testified that Tri-Messine does not stack roadway plates; rather, when plates need to be temporarily relocated, Tri-Messine places them side by side, not on top of one another. (see id at 62-63). The photograph depicting three plates stacked one upon the other is inconsistent with Tri-Messine's established practice. (NY St Cts Filing [NYSCEF] Doc No. 48). Mr. Messina testified that he did not know how the plates came to be in the stacked configuration depicted in the photograph, and that the plates did not belong to Tri-Messine. (NY St Cts Filing [NYSCEF] Doc No. 37 at page 63).

Mr. Messina acknowledged, in response to questioning by Plaintiff's counsel, that Tri-Messine would have had to move a National Grid plate in order to perform the binder work for which it was contracted, and that the entity responsible for such movement would have been either Tri-Messine or National Grid. (see id at page 66). He further acknowledged that if plates were moved to the side of the road in connection with restoration work, Tri-Messine would not place warning cones or cordon off the area around the relocated plates. (see id at page 60). Mr. Messina conceded that his crew "would have been there on May 23rd" in response to a question regarding who else might have been present at the scene around the time of the accident, though he qualified this concession by noting that the work records confirmed Tri-Messine's first formal presence at the accident location pursuant to its paving order was May 24, 2023, and that he had not discussed the accident with his foreman, John Morello, because the records were dispositive of Tri-Messine's absence from the site prior to the accident. (see id at pages 63-68).

D. The Positions of the Parties on This Motion

Tri-Messine moves pursuant to CPLR � 3212 for an order granting summary judgment in its favor and dismissing Plaintiff's Complaint and all cross-claims asserted against it, on the grounds that it owed no duty of care to Plaintiff, did not own or control the subject roadway plates, did not cause or create the allegedly hazardous condition, and had no presence at the accident location prior to May 24, 2023. Plaintiff opposes the motion, arguing that triable issues of fact exist as to whether Tri-Messine had actual notice of the hazardous condition by virtue of the Code 91 designation in the paving order, whether Tri-Messine created the hazardous condition by moving the plates to the stacked position depicted in the photograph, and whether Tri-Messine was negligent in failing to [*4]place warnings around the plates or ramp them with asphalt. National Grid likewise opposes the motion as to Tri-Messine, arguing that a May 17, 2023 paving order issued to Tri-Messine for work at Alaska Street near Woodruff Lane raises a triable issue of fact as to whether Tri-Messine moved plates at or near the accident location prior to May 23, 2023.

III. Conclusions of Law

A. The Summary Judgment Standard

Pursuant to CPLR � 3212, a motion for summary judgment shall be granted where, upon all of the papers and proof submitted, the cause of action or defense is established sufficiently to warrant the court, as a matter of law, in directing judgment in favor of the moving party (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Weingrad v NY Univ Med Ctr, 64 NY2d 851 [1985]). The proponent of a summary judgment motion bears the initial burden of tendering sufficient evidentiary proof, in admissible form, to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp, 68 NY2d 320 [1986]). Once the movant has discharged that prima facie burden, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of material fact requiring resolution at trial (see Alvarez v Prospect Hosp, 68 NY2d 320 [1986]; Vermette v Kenworth Truck Co Div of Paccar, Inc, 68 NY2d 714 [1986]). If the opponent of the motion cannot sustain that shifted burden, the motion must be granted. Mere conclusions, expressions of hope, unsubstantiated allegations, and conclusory assertions, however credible they might appear in isolation, are wholly insufficient to defeat a well-supported summary judgment motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Freedman v Chem Constr Corp, 43 NY2d 260 [1977]). The issue of fact proffered by the non-movant must be shown to be genuine and real, not feigned, for a sham or frivolous issue will not preclude the granting of summary relief (see Fender v Prescott, 101 AD2d 418 [1st Dept 1984]). A court deciding a summary judgment motion is not to make credibility determinations or findings of fact, but rather to identify material triable issues of fact or to point to the absence thereof (see Granath v Monroe County, 2026 NY Slip Op 01586 [2026], citing Vega v Restani Constr Corp, 18 NY3d 499 [2012]).

B. The Governing Principles of Premises and Roadway Liability

To prevail upon a premises liability claim sounding in negligence, a plaintiff must establish that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, that the defendant had actual or constructive knowledge of the hazardous condition, and that the breach proximately caused the plaintiff's damages (see Febesh v Elcejay Inn Corp, 157 AD2d 102 [1st Dept 1990]). Absent a legally cognizable duty owed by a defendant to the plaintiff, no breach can be established and, consequently, no liability can attach. As the Court of Appeals has declared with characteristic precision: "[i]n the absence of duty, there is no breach and without a breach there is no liability" (see Pulka v Edelman, 40 NY2d 781 [1976]). The determination of whether a duty of care exists is a question of law committed to the province of the court (see Landon v Kroll Lab Specialists Inc, 91 AD3d 79 [2d Dept 2011], affd 22 NY3d 1 [2013]).

As a foundational principle of New York tort law, liability for a dangerous condition upon real property or a public roadway must be predicated upon ownership, occupancy, control, or special use of the property or the instrumentality alleged to have caused harm (see Correa v Orient-Express Hotels, Inc, 84 AD3d 651 [1st Dept 2011]; Welwood v Associated for Children With Downs [*5]Syndrome, Inc, 248 AD2d 707 [2d Dept 1998]). New York courts have consistently and uniformly required that liability for dangerous conditions be predicated upon such a relationship with the property or instrumentality, and where no such relationship exists, liability cannot be imposed (see Masterson v Knox, 233 AD2d 549 [1996]). A defendant who exercises no ownership, possession, or control over the relevant premises or instrumentality owes no duty of care to a plaintiff injured by that condition (see Arpi v New York City Transit Auth, 42 AD3d 478 [2d Dept 2007]). Moreover, liability cannot be imposed upon a defendant simply because it performed work in a general geographic area; rather, the plaintiff must demonstrate that the specific defendant bore responsibility for the specific condition alleged to have caused the harm (see Flores v City of NY, 29 AD3d 356 [1st Dept 2006]).

With equal force, it is well settled that a defendant contractor is entitled to summary judgment where the evidence establishes that the alleged defect was not caused or created by the defendant, its employees, or its agents (see Schechter v City of NY, 17 AD3d 124 [1st Dept 2005]; Klar v AJ Pegno Constr Corp, 266 AD2d 434 [2d Dept 1999]). The plaintiff must demonstrate that the defect was caused by the "actual work" of the defendant at the specific location at issue; proof of nearby or proximate work, without more, is legally insufficient to impose liability (see Figueroa v City of NY, 27 AD3d 515 [2d Dept 2006]; Perez v Morse Diesel, Inc, 258 AD2d 428 [1st Dept 1999]; Pignataro v Coen, 150 AD2d 222 [1st Dept 1989]).

Upon a searching and careful review of the totality of the papers submitted, this Court finds that Tri-Messine has sustained its initial prima facie burden of demonstrating entitlement to summary judgment as a matter of law, and that neither Plaintiff nor National Grid has succeeded in raising a genuine triable issue of material fact sufficient to defeat that showing.

C. Tri-Messine Did Not Own, Control, or Possess the Subject Roadway Plates

The record is devoid of any competent, admissible evidence connecting Tri-Messine to the ownership or control of the roadway plates alleged to have caused Plaintiff's accident. The sworn testimony of both Alfonso Messina and Walter Stone, corroborated by the documentary evidence in the form of paving orders and work records, establishes with unmistakable clarity that the subject plates belonged to National Grid/Brooklyn Union Gas Company, not Tri-Messine. National Grid's own records reflect that plates were placed at the location by Brooklyn Union Gas and bore the markings "National Grid" or "N Grid." Mr. Messina confirmed that Tri-Messine plates are identified by the company's name welded upon them, and that no Tri-Messine plates were deployed at this job site. National Grid's own witness paradoxically undermined any suggestion that the plates in the photograph were BUG plates, observing that BUG plates are steel and gray in color whereas the objects depicted in Plaintiff's photograph appeared rust-colored and were unrecognizable as BUG plates � testimony that, while perhaps creating difficulties for National Grid's own defense, serves only to further dissociate the plates from Tri-Messine's ownership or control.

Since it is the entrenched law of this State that liability for a dangerous condition must be predicated upon ownership, occupancy, control, or special use of the property or instrumentality at issue (see Correa v Orient-Express Hotels, Inc, 84 AD3d 651 [1st Dept 2011]; Welwood v Associated for Children With Downs Syndrome, Inc, 248 AD2d 707 [2d Dept 1998]), and since the uncontested record establishes beyond peradventure that Tri-Messine had no such relationship to the roadway plates, no legally cognizable duty of care ran from Tri-Messine to this Plaintiff with respect to those plates.

D. Tri-Messine Did Not Perform Any Work at the Accident Location Prior to the Accident

The documentary evidence, consisting of the paving order (Exhibit K), and the sworn testimony of both Alfonso Messina and Walter Stone, establish with documentary certainty that Tri-Messine's first and only involvement at the intersection of Wayne Street and Alaska Street occurred on May 24, 2023, one full day after Plaintiff's accident of May 23, 2023. Tri-Messine had not been assigned, directed, or otherwise engaged to perform any work at that specific intersection prior to receiving the subject paving order dated May 24, 2023. The paving order constitutes a business record in admissible form, and its contents are unambiguous and undisputed. Mr. Messina confirmed that Tri-Messine did not perform any work at the intersection of Alaska Street and Wayne Street before May 23, 2023, and that the company's sole activity at that location consisted of pavement restoration performed on May 24, 2023, the day following the accident.

A contractor cannot have caused or created a dangerous condition at a location where it had not yet performed any work. Since Tri-Messine was not present at the accident location on or prior to May 23, 2023, it is a legal and logical impossibility that Tri-Messine caused, created, or contributed to the arrangement of the roadway plates that allegedly precipitated Plaintiff's fall. The requirement that a defendant must have performed actual work at the specific location where the defect existed in order to be held liable for having created it (see Figueroa v City of NY, 27 AD3d 515 [2d Dept 2006]) forecloses any viable claim against Tri-Messine on the record before this Court.

E. Plaintiff's Opposition Does Not Raise a Genuine Triable Issue of Material Fact

Plaintiff's principal argument in opposition is that Alfonso Messina's concession that Tri-Messine "would have been there on May 23rd" creates a triable issue of fact as to whether Tri-Messine was present at the accident location and moved the subject plates prior to the accident. This Court is unpersuaded. Read in its full and proper context, this isolated, equivocal statement was made in response to an abstract question as to who else might have moved plates at the scene on or around the accident date. It does not constitute an admission that Tri-Messine was in fact present at the intersection of Wayne Street and Alaska Street on May 23, 2023, for the simple and dispositive reason that Mr. Messina immediately clarified, in unambiguous terms and predicated upon his review of work records, that Tri-Messine performed no work at that intersection before May 23, 2023, and that Tri-Messine's first formal engagement at the location was May 24, 2023. Plaintiff's counsel, in opposition, selectively excerpts Mr. Messina's testimony while declining to acknowledge the broader, contextualizing portions of the same examination that fully and definitively negate any inference of pre-accident presence. The issue of fact a non-movant advances in opposition to summary judgment must be shown to be real and genuine, not feigned, as a sham or frivolous issue will not preclude summary relief (see Fender v Prescott, 101 AD2d 418 [1st Dept 1984]).

Plaintiff further argues that Tri-Messine's constructive notice of the plates, derived from the Code 91 notation in the paving order identifying that a National Grid plate was present at the cut location, imposed upon Tri-Messine an obligation to place warnings around the plates, ramp them with asphalt, or otherwise safeguard the surrounding area before Tri-Messine had so much as commenced its work at the site. This argument is without legal foundation. The mere awareness that a third party's equipment would be present at a location scheduled for future work does not transmute a paving contractor into the custodian, operator, or controlling party of that equipment for purposes of premises liability. A duty of care requires a legally recognized relationship of [*6]ownership, occupancy, control, or special use (see Correa v Orient-Express Hotels, Inc, 84 AD3d 651 [1st Dept 2011]). Tri-Messine had none of these relationships to National Grid's roadway plates on the date of the accident. As Mr. Stone himself testified, the responsibility to ramp and place safety spikes around the roadway plates rested with National Grid, not Tri-Messine. Plaintiff has cited no contractual provision, regulatory requirement, or applicable case law imposing upon a paving contractor the duty to warn the public about a principal utility's roadway plates before the paving contractor has arrived at the site or commenced its work. Such a duty would be unprecedented and contrary to well-established principles governing the allocation of responsibilities between utility companies and their restoration contractors.

Plaintiff's further argument, that Tri-Messine's failure to produce foreman John Morello for deposition or by affidavit creates a triable issue of fact, likewise misses the mark. It is the plaintiff's burden, as the non-movant, to come forward with admissible evidence raising a triable issue of fact, not the movant's burden to produce every conceivably relevant witness. Plaintiff had ample opportunity during discovery to subpoena or depose Mr. Morello and elected not to do so. Plaintiff cannot now manufacture an issue of fact from the absence of testimony that Plaintiff's own litigation choices produced. Speculation regarding what Morello's testimony might have revealed is insufficient to defeat a well-supported motion for summary judgment (see Zuckerman v. New York, 49 NY2d 557 [1980]).

F. National Grid's Opposition Does Not Raise a Genuine Triable Issue of Material Fact

National Grid argues that a paving order dated May 17, 2023, for work on Alaska Street near Woodruff Lane, a location distinct from the intersection of Wayne Street and Alaska Street where Plaintiff's accident occurred, raises a triable issue of fact as to whether Tri-Messine had moved plates in the general vicinity of the accident location prior to May 23, 2023. This argument fails as a matter of law. It is precisely the type of geographic speculation that New York courts have rejected, holding that proof of work nearby or in the vicinity is insufficient to establish liability (see Flores v City of NY, 29 AD3d 356 [1st Dept 2006]). A plaintiff must demonstrate that the defect was caused by the actual work of the defendant at the specific location (see Figueroa v City of NY, 27 AD3d 515 [2d Dept 2006]). National Grid's attempt to conflate restoration work performed at a different location on a different street block with liability at the specific accident site is an impermissible inferential leap unsupported by any direct evidence in the record. National Grid has not submitted a single affidavit from a witness with personal knowledge, any expert opinion, or any documentary evidence affirmatively establishing that Tri-Messine moved or positioned the subject plates in the stacked configuration shown in the accident photograph. Attorney argument and speculation, no matter how artfully presented, cannot substitute for admissible proof (see Freedman v Chem Constr Corp, 43 NY2d 260 [1977]).

G. The Cross-Claims Must Be Dismissed

Inasmuch as neither Plaintiff nor any co-defendant has proffered competent, admissible evidence establishing that Tri-Messine owed a duty of care to Plaintiff, created the allegedly defective condition, or bore ownership, control, or possession over the instrumentality alleged to have caused the harm, there exists no viable basis in law or fact upon which indemnification, contribution, or any other form of cross-claim relief against Tri-Messine could be sustained. Without an underlying basis of liability against Tri-Messine, all cross-claims asserted against it must be [*7]dismissed in their entirety.

H. Partial Summary Judgment as to National Grid Liability

The ownership of the road plates is clear and has been established by the sworn testimony of both Alfonso Messina and Walter Stone, corroborated by the documentary evidence in the form of paving orders and work records, establishes with unmistakable clarity that the subject plates belonged to National Grid/Brooklyn Union Gas Company. National Grid's own records reflect that plates were placed at the location by Brooklyn Union Gas and bore the markings "National Grid" or "N Grid."

Defendant National Grid, however, contends that the evidence raises issues of material fact as to whether there was any negligence on the defendants' part, whether such negligence, if any, was the cause of plaintiff's accident, or whether it was plaintiff's alleged negligent operation of his electric scooter and his alleged failure to observe an open and obvious condition that caused his accident. National Grid further contends that there are issues relating to plaintiff's credibility requiring a trial.

"[T]o obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous." (see Baran v Port Auth of NY & NJ, 196 AD3d 674 [2d Dept 2021], quoting Crosby v Southport, LLC, 169 AD3d 637 [2d Dept 2019]).

"Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury" (see Dalton v North Ritz Club, 147 AD3d 1017 [2d Dept 2017] citing Gutman v Todt Hill Plaza, LLC, 81 AD3d 892 [2d Dept 2011]; Shah v Mercy Med. Ctr., 71 AD3d 1120 [2d Dept 2010]; Fasano v Green-Wood Cemetery, 21 AD3d 446 [2d Dept 2005]).

"A condition that is generally apparent 'to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted'" (see id quoting Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008 [2d Dept 2008]).

"Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances." (see Shah v Mercy Med Ctr, 71 AD3d 1120 [2d Dept 2010]).

"[T]o defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that was the subject of the moving party's prima facie showing." (see Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]).

"[O]n a motion for summary judgment, 'facts must be viewed in the light most favorable to the non-moving party'" (see William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470 [2d Dept 2013], quoting Vega v Restani Constr. Corp., 18 NY3d 499 [2012]).

In this case, the evidence raises issues of fact as to whether the metal plates placed at the curb were open and obvious and not inherently dangerous, whether the plaintiff was paying attention to the conditions around him as he drove his vehicle, and whether the plates, that were a different color than the surrounding curb and roadway, constituted a trap for the unwary.

Accordingly, at this juncture, the evidence demonstrates the presence of material issues of fact and credibility, requiring a trial as to liability, requiring denial of Plaintiff's motion for partial summary judgment on the issue of liability.

V. Conclusion and Decretal Paragraphs

Upon the foregoing findings of fact and conclusions of law, and upon due deliberation having been had thereon, it is hereby:

ORDERED that Defendant Tri-Messine Construction Company, Inc.'s Motion Sequence No. 002 for summary judgment pursuant to CPLR � 3212 is in all respects GRANTED; and it is further

ORDERED that the Verified Complaint of Plaintiff Roberto C. Salazar is dismissed in its entirety as against Defendant Tri-Messine Construction Company, Inc., with prejudice; and it is further

ORDERED that any and all cross-claims asserted against Defendant Tri-Messine Construction Company, Inc. by any party herein are dismissed in their entirety, with prejudice; and it is further

ORDERED that Plaintiff Roberto C. Salazar's Motion Sequence No. 001 request for partial summary judgment pursuant to CPLR � 3212 on the issue of liability as against Defendant Tri-Messine Construction Company, Inc. ["Tri-Messine"] is DENIED as moot, with prejudice; and it is further

ORDERED that Plaintiff Roberto C. Salazar's Motion Sequence No. 001 request for partial summary judgment pursuant to CPLR � 3212 on the issue of liability as against Defendant Brooklyn Union Gas Company, and Brooklyn Union Gas Company d/b/a National Grid NY ["National Grid"] is DENIED, with prejudice; and it is further

ORDERED that the action shall continue as between Plaintiff Roberto C. Salazar and the remaining Defendant, The Brooklyn Union Gas Company d/b/a National Grid NY i/s/h/a Brooklyn Union Gas Company and Brooklyn Union Gas Company D/B/A National Grid NY; and it is further

ORDERED that counsel for the moving party shall serve a copy of this Decision and Order with notice of entry upon all parties within twenty (20) days of entry hereof, in accordance with the CPLR.

This constitutes the Decision and Order of this Court.

Dated: June 8, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT