| Weinberg v City of New York |
| 2012 NY Slip Op 04333 [96 AD3d 736] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Grace E. Weinberg et al., Appellants, v City of New Yorket al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Sharyn Rootenberg of counsel;Andrew Lee on the brief), for respondent City of New York. Richard W. Babinecz (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel),for respondent Consolidated Edison Company. McGaw Alventosa & Zajac, Jericho, N.Y. (Andrew Zajac of counsel), for respondentTri-Messine Construction, Co. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent Safeway Construction Enterprises, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), datedFebruary 17, 2011, as granted the separate motions of the defendants City of New York,Consolidated Edison Company, Tri-Messine Construction, Co., and Safeway ConstructionEnterprises, Inc., which were for summary judgment dismissing the complaint insofar as assertedagainst each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff Grace E. Weinberg (hereinafter the injured plaintiff) allegedly was injured whenshe fell in a sink hole in the southbound travel lane of 67th Avenue in Queens. The injuredplaintiff, and her husband, suing derivatively, commenced this action to recover damages againstthe defendants City of New York, Consolidated Edison Company (hereinafter Con Ed),Tri-Messine Construction, Co. (hereinafter Tri-Messine), and Safeway Construction Enterprises,Inc. (hereinafter Safeway). Con Ed had previously hired Tri-Messine and Safeway to performwork on the roadway.
The City made a prima facie showing of its entitlement to judgment as a matter of law bydemonstrating that it did not have prior written notice of the allegedly defective condition [*2]involved in the injured plaintiff's accident (see Cendales v City of New York, 25AD3d 579, 580-581 [2006]). In opposition, the plaintiffs failed to raise a triable issue of factbecause they offered only speculation that the City affirmatively created the alleged roadwaydefect (see Lawler v City ofYonkers, 45 AD3d 813 [2007]).
The defendants Tri-Messine and Safeway established their entitlement to judgment as amatter of law by demonstrating that they did not create the alleged defect in the travel lane of theroadway which allegedly caused the injured plaintiff to fall (see Cendales v City of NewYork, 25 AD3d at 580-581; Shvartsberg v City of New York, 19 AD3d 578, 579 [2005]; Palone v City of New York, 5 AD3d750, 751 [2004]). In opposition, the plaintiffs failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Since Con Ed's alleged liability was based upon its hiring of the defendants Tri-Messine andSafeway, it also was entitled to summary judgment dismissing the complaint insofar as assertedagainst it.
Accordingly, the Supreme Court properly granted the separate motions of the City, Con Ed,Tri-Messine, and Safeway for summary judgment dismissing the complaint insofar as assertedagainst them. Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.