| Amarosa v City of New York |
| 2008 NY Slip Op 04783 [51 AD3d 596] |
| May 29, 2008 |
| Appellate Division, First Department |
| Marylou Amarosa et al., Respondents-Appellants, v City ofNew York et al., Defendants, Tishman Construction Company, Appellant-Respondent, andColumbus Construction Corp., Respondent. (And a Third-PartyAction.) |
—[*1] Daniel H. Gilberg, New York, for respondents-appellants. Law Office of John P. Humphreys, New York (Evy Kazansky of counsel), forrespondent.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 15, 2007,which, insofar as appealed from, granted the motion of defendant Columbus ConstructionCorporation (Columbus) for summary judgment dismissing the complaint as against it, anddenied the motion of Tishman Construction Company now known as Tishman Realty &Construction Co., Inc. (Tishman) for summary judgment dismissing the complaint as against it,unanimously modified, on the law, Tishman's motion granted, and otherwise affirmed, withoutcosts. The Clerk is directed to enter judgment accordingly.
Plaintiff asserts that she fell into a pothole and hit her shoulder on a manhole cover whilecrossing West 43rd Street at 8th Avenue in Manhattan on September 9, 1999. Columbus made aprima facie showing of entitlement to summary judgment by submitting the affidavit of its riskmanager stating that his search of the company's records turned up no records of work at thatlocation dating back to 1999. Further, the time sheets of the company's employees for the monthprior to the accident showed that all of the employees had been working in the Bronx. Inopposition, plaintiffs presented no evidence tending to show that Columbus was working in thearea in or around September 1999. Absent such evidence Columbus is entitled to summaryjudgment (see Robinson v City of NewYork, 18 AD3d 255 [2005]).
Similarly, Tishman was entitled to summary judgment. The summons and complaint as filedfailed to name any Tishman defendant that could possibly be connected with the accident [*2]site, and Tishman was entitled to summary judgment on this groundalone (Blount v Bovis Lend LeaseHoldings, Inc., 35 AD3d 310 [2006]).
Initially, we note that the amended verified complaint as filed lists "Tishman ConstructionCompany" as a party defendant. However, the summons and complaint served on Tishman bearthe handwritten annotation "S/H/A Tishman Construction Company N/K/A Tishman Realty &Construction Co., Inc." It is uncontroverted that Tishman Construction Company does not exist;that Tishman Construction Corporation of New York was the construction manager for a projectlocated at 3 Times Square; that Tishman Westside Construction, LLC was involved in theconstruction of the Westin Hotel at the southeast corner of 43rd Street and 8th Avenue; and, thatTishman Realty & Construction Co., Inc. was not involved in any construction or repair work atthe site of the accident.
The mere fact that New York City issued permits to "Tishman Construction" to storematerials on the sidewalk in proximity to the accident site is insufficient to raise a question offact as to whether Tishman performed any work at the site (Bermudez v City of New York, 21 AD3d 258 [2005]), or that suchwork was the cause of the pothole in question.
Furthermore, the unrebutted affidavit of the project superintendent for the Tishmanconstruction at 3 Times Square established that the 3 Times Square project was at the oppositeend of West 43rd Street, at least 400 feet from the site of the accident. The permits attendant tothat project only applied to an area extending 164 feet west from Seventh Avenue. There is noevidence of record that tends to show that the construction at 3 Times Square was a proximatecause of a pothole in the street 400 feet westward.
Finally, while there may be an issue of fact on when the construction began on the WestinHotel (Tishman maintaining that it did not begin until nine months after the accident), there is noevidence of record that any construction work caused the offending pothole. Even when we creditplaintiff's testimony that the hotel was already being built at the time she fell, she merely testifiedthat it appeared that the roadway itself was also under construction. This is insufficient to rebutTishman's proof that it performed no work in the street at the location of the accident, at the timeof the accident. Concur—Gonzalez, J.P., Catterson, McGuire and Moskowitz, JJ.