| Siegel v City of New York |
| 2011 NY Slip Op 05937 [86 AD3d 452] |
| July 14, 2011 |
| Appellate Division, First Department |
| Joan C. Siegel, as Administrator of the Estate of Jerome Siegel,Deceased, Appellant, v City of New York et al., Defendants, and Empire City SubwayCompany (Limited), Respondent. (And a Third-Party Action.) Empire City Subway Company(Limited), Second Third-Party Plaintiff, v Westmoreland Construction, Inc., Second Third-PartyDefendant-Respondent. |
—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York (Darrell John of counsel), for Empire CitySubway Company (Limited), respondent. Hannum Feretic Prendergast & Merlino, LLC, New York (Beth A. Kennelly of counsel), forWestmoreland Construction, Inc., respondent.
Order, Supreme Court, New York County (Karen Smith, J.), entered May 2, 2008, whichgranted the motion of defendant Empire City Subway Company (Limited) for summary judgmentdismissing the complaint and cross claims as against it and second third-party defendantWestmoreland Construction's cross motion for summary judgment dismissing the secondthird-party complaint, unanimously affirmed, without costs. Order, same court and Justice,entered October 10, 2008, which insofar as appealable, denied plaintiffs' motion for renewal,unanimously affirmed, without costs.
Plaintiff's decedent was injured on May 7, 2001 when he fell in the roadway while crossingat the intersection of 68th Street and York Avenue in Manhattan. He commenced the instantpersonal injury action alleging that defendants, Empire City Subway Company (ECS) and [*2]Westmoreland Construction, Inc. (Westmoreland), who hadpreviously performed work in that area, negligently maintained the roadway and/or created thedefective condition that caused his fall.[FN*]
At his deposition, the decedent testified that he stepped onto uneven pavement, but did notrecall looking down, and did not see any defect in the roadway. The decedent testified thatalthough he began to cross in the designated crosswalk, he changed direction to walk diagonallywhen he saw an opportunity to cross to a different corner.
The decedent testified as to the general direction he was walking and the side of the streetwhere he fell, but not the actual path he took through the intersection. When asked to identify thedefect in a photograph of the roadway, he said, "I am not sure. I'm really not sure." However, in asecond photograph, he circled two depressions or cracks. He testified that he was able to identifythe defect in the second photograph because he recognized the approximate location where hefell on the eastern side of the street.
A local manager of operations at defendant ECS testified at deposition that ECS performedconduit installation work at the intersection and retained Westmoreland to excavate atwo-foot-wide trench, install fiber optic cable, and restore the roadway in September 1997 andApril 1998. He further testified that markings on the asphalt indicated that Consolidated Edisonutilities run under the purported defect identified by plaintiff, and that ECS's conduit runs paralleland adjacent to the defect. He further testified that the purported defect, described byWestmoreland as a "sink hole," could have been caused by any occurrence that disturbed the subbase of the roadway including a water main break, sewer problems, or soil compaction.
Defendant Westmoreland submitted evidence that there had been a water main leak at theintersection four months prior to the date of plaintiff's accident. The president of Westmorelandtestified that the "sink hole" did not appear to be part of the ECS trench.
Although evidence established that the depression or cracks were subsequently patched, acourt-ordered search for postaccident repair records from both ECS and Westmoreland showedthat the repair was not performed by either defendant. A representative of defendant City of NewYork testified at deposition that when restoration paving work is found to be defective, including"sinkage," the City issues a request for corrective action to the permittee. The City'srepresentative further testified that a search of its records showed that there were no correctiveaction requests made in connection with restoration work in the area where the decedent'saccident allegedly occurred.
On December 17, 2007, ECS moved for summary judgment dismissing the complaint and allcross claims against it. Four days later, Westmoreland cross-moved for summary judgmentdismissing the second third-party complaint.
On May 2, 2008, the motion court granted ECS's and Westmoreland's motions on thegrounds that plaintiff failed to raise a triable issue of fact because he was unable to identify thedefect, and failed to submit evidence that properly authenticated his photographs. Plaintiff movedto reargue and renew, but the motion was denied on September 22, 2008.[*3]
For the reasons set forth below, the motion court correctlydetermined that defendants are entitled to summary judgment dismissal of the complaints againstthem. It is well settled that a defendant is entitled to summary judgment as a matter of law whena plaintiff provides testimony that he or she is unable to identify the defect that caused his or herinjury (see Rudner v New York Presbyt.Hosp., 42 AD3d 357 [2007]; Reed v Piran Realty Corp., 30 AD3d 319 [2006], lv denied8 NY3d 801 [2007]; Fishman vWestminster House Owners, Inc., 24 AD3d 394 [2005]). In this case, the decedent'sdeposition testimony indicated that he circled the defect in the photograph based on hisrecognition of the approximate location where he fell—not his recognition of the defectitself. This basis for identification of the defect amounts to the type of "rank speculation" thatgenerally warrants summary judgment dismissal (see e.g. Kane v Estia Greek Rest., 4AD3d 189 [2004]; Burnstein v Mandalay Caterers, 306 AD2d 428 [2003]).
Even had the decedent positively identified the "sink hole" as the defect that caused him tofall, he nevertheless failed, in opposition to defendants' summary judgment motions, to raise atriable issue of fact as to whether defendants caused or created the defect (see Zuckerman vCity of New York, 49 NY2d 557 [1980]). A plaintiff's "mere conclusions, expressions ofhope or unsubstantiated allegations or assertions are insufficient" to defeat a defendant's motionfor summary judgment (id. at 562).
In the instant case, plaintiff argues that the proximity of the ECS conduit to the alleged defectraises questions as to whether defendants' work caused the defect. This argument is unpersuasive,particularly in light of the three years that elapsed between the installation of the conduit and thedecedent's fall. Plaintiff's unsupported assertion that it could have been defendants' conduit ratherthan that of Consolidated Edison or the water main break that caused the purported defect is mereconjecture and fails to raise a triable issue of fact (see e.g. Ortner v City of New York, 50 AD3d 475 [2008]; Flores v City of New York, 29 AD3d356 [2006]; DiPierro v City of NewYork, 25 AD3d 306 [2006];Robinson v City of New York, 18 AD3d 255 [2005]; Hallas v New York Univ.,259 AD2d 444 [1999]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Andrias, J.P., Catterson, Renwick, DeGrasse and Manzanet-Daniels, JJ.
Footnote *: The decedent died on March 14,2010 and there is no indication that his death is related to this accident which occurred nine yearsprior. Joan C. Siegel was appointed as administrator of his estate on November 17, 2010 and wassubsequently substituted as a plaintiff in this case.