# Gruber v. Hallen Constr. Co., Inc.

> New York Supreme Court, Kings County · March 24, 2025 · 2025 NY Slip Op 31028(U)

URL: https://www.frixlaw.com/law-library/cases/10838934

## Case

- **Court:** New York Supreme Court, Kings County
- **Decided:** March 24, 2025
- **Citations:** 2025 NY Slip Op 31028(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Lisa S. Ottley
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Gruber v Hallen Constr. Co., Inc.
2025 NY Slip Op 31028(U)
March 24, 2025
Supreme Court, Kings County
Docket Number: Index No. 507974/2018
Judge: Lisa S. Ottley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 03/28/2025 INDEX NO. 507974/2018
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 03/31/2025

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS - PART 24
-------------------------------------------------------------------------x
EDWARD GRUBER,

Plaintiff, Index# 507974/2018

-against- Decision and Order

Motion Seq. #s 7 and 8

THE HALLEN CONSTRUCTION CO., INC.,
NATIONAL GRID, VERIZON NEW YORK,
and CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC.,
Defendants.

HON. LISA S. OTTLEY

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Notice of
Motion for Summary Judgment submitted on September 9, 2024.

Papers Numbered
Notice of Motion and Affirmation ........................................ 1, 2 [Exh. A-G]; 8, 9 [Exh. A-N]
Affirmation/Affidavit in Opposition...................................... 4, 5 [Exh. A-DJ; 10, 11 [Exh. A-D]
Reply Affirmations ................................................................. 6, 7; 12, 13
Memoranda of Law................................................................. 3

Plaintiff, Edward Gruber, commenced this action due to a trip and fall as a result ofa raised,
condition on a roadway, which occurred on 14th Avenue near the intersection of 49th Street, in
Brooklyn, New York, on or about January 26, 2018. Plaintiff alleges that he tripped and fell on a
raised metal plate covering an excavation in the crosswalk as he was crossing 14th Street. The
defendant, Consolidated Edson Company of New York, Inc., was granted summary judgment
dismissing the plaintiffs complaint, pursuant to the order of this court, dated September 9, 2024.

Hallen and National Grid's Motion

The defendants, The Hallen Construction co., Inc. (hereinafter, "Hallen") and National
Grid USA Service Company, Inc. (hereinafter, "National Grid") move pursuant to CPLR § 3212,
for an order granting summary judgment dismissing plaintiffs complaint and all cross-claims
(motion seq. no. 7), on the grounds that they did not conduct work at the alleged accident site and
did not create the alleged defective condition. Plaintiff and the defendant, Verizon New York
(hereinafter, "Verizon"), oppose Hallen and National Grid's motion on the grounds that Hallen
and National Grid have failed to make aprimafacie showing entitling them to summary judgment

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by failing to demonstrate that they did not create the raised condition and there remains questions
of fact regarding Hallen and National Grid's liability.

Hallen is a construction company that installs, repairs and services gas mains for National
Grid. Hallen and National Grid argue that they did not create hazardous conditions because they
did not place the steel plate that the plaintiff claims he tripped on nor perform any work in the
vicinity of the plaintiff's alleged accident, which is the crosswalk at 14th Avenue and 49 th Street.
The only evidence purportedly connecting Hallen to the location of the accident is barricades,
which the plaintiff concedes were not present when the accident occurred but showed up for the
first time a week after the accident when he went back to take photographs. In support, Hallen and
National Grid have offered the deposition testimony of Hallen's foreman, John Edwards, that
testified that Hall en worked on 14 th Avenue between 48 th and 49 th Streets in August of 2017, but
that work took place in the middle of the block and none of Hallen's work at that location took
place in the intersection. Mr. Edwards testified that while the job involved the use of steel plates,
the closest plate to the accident location would have been 100 to 150 feet away from the crosswalk
where the plaintiff tripped. Hallen and National Grid further argue that any and all cross-claims
for contribution should be dismissed as there is no evidence Hall en and National Grid were
negligent. The cross-claims for common-law indemnification should be dismissed since any
liability against Verizon is not purely vicarious, but would be based on Verizon's active fault.

In opposition, Verizon argues that its contractor, VNA, performed work on 14th Avenue
between 49 th Street and 50th Street, which connected two Verizon facilities from 49 th Street to 50th
Street and intersected the southwestern crosswalk on 14 th Avenue and 49 th Street. However,
Verizon argues that did this work did not require any installation, construction, or paving, of any
kind to be completed by Verizon on the northeastern crosswalk, which is where plaintiff fell. In
support, Verizon has offered the deposition testimony and affidavit of Verizon's research
consultant, Aaron Crawford. According to Mr. Crawford and Verizon's 50-foot map, VNA
performed underground work from Manhole 285, located in the middle of the intersection of 14th
Avenue and 49 th Street to Manhole 286, located in the middle of the intersection of 14th Avenue
and 50 th Street.

In opposition, plaintiff argues that Hallen and National Grid failed to demonstrate that they
did not perform work at the subject location. In support, plaintiff offers the deposition testimony
of Hallen's foreman, Mr. Edwards, and National Grid's consultant, Walter Stone, who both
identified a two-page New York City Department of Transportation (hereinafter, "NYC DOT")
report/complaint, dated December 31, 2017, which stated the following:

Would like to file a complaint in regard to road conditions in Brooklyn on 49th Street
between 14 and 13 avenues closer to 14th. Some utility work was done and metal plates
were put down in the middle of the street but they're [sic] not properly fastened and moved
around causing danger and noise in the whole neighborhood.

The "Internal Agency Notes" of the report stated as follows:

Assigned to Insp. # 496. At 1364-1384 49th St., 1 of 6 "KS" [Keyspan] plates serving no
purpose, 2" above grade & inadequately ramped thru 14th Ave crosswalk, causing trip

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hazard to crossing pedestrians. 6 of 6 "KS" plates in roadway serving no purpose, wlo
raise plow signs, with corners ofplates raised 2"-3.5" above grade, after trench in Int. of
14 Ave & 49 St. was made binder to grade. NOV-D70 issued, NICA. Keith Branch of
B. UG. was notified at 04:59 on 01,..02-18.

A second report dated May 28, 2018, stated in the "Complaint Details" as follows: mound
ofsand is still here two months after finishing the construction (construction/or gas lines,
private contractor hired by Nation grid) Location: 1380 49th Street, Brooklyn, NY

Mr. Edwards also identified a photograph depicting a barricade that was owned by Hallen
and confirmed that Hallen would use such barricades as well as National Grid barricades as part
of its construction. Mr. Edwards confirmed that B.U.G. can refer to Brooklyn Union Gas, which
is another name for defendant National Grid. According to Mr. Stone, National Grid purchased
Keyspan in 2006 or 2007. Mr. Stone identified a document that included a work order from
National Grid and Hall en beginning on January l, 2017 and concluding January 31, 2018, the
period during which plaintiff's accident occurred, which included the excavation, restoration and
paving of the intersection of 14th Avenue and 49th Street, where the accident occurred.

It is well settled that to grant summary judgment, it must clearly appear that no material
issue of fact has been presented. See, Grassick v. Hicksville Union Free School District, 231
A.D.2d 604, 647 N.Y.S.2d 973 (2 nd Dept., 1996), "where the moving party has demonstrated its
entitlement to summary judgment, the party opposing the motion must demonstrate by admissible
evidence the existence of a factual issue requiring the trial of the action." See also, Zuckerman v.
City o(New York. 49 N.Y.2d 557,427 N.Y.S.2d 595 (1980). The papers submitted in the context
of the summary judgment motion are viewed in the light most favorable to the party opposing the
motion. See, Marine Midland Bank. NA. v. Dino v. Artie's Automatic Transmission Co., 168
A.D.2d 610 (2 nd Dept., 1990). If the primafacie showing has been met, the burden then shifts to
the opposing party to present sufficient evidence to establish the existence of material issues of
fact requiring a trial. See, CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 NY.2d 320 [1986].

It is fundamental that, in order to be held liable in tort, the alleged tortfeasor must have
owed the injured party a duty of care. See, Forbes vAaron, 81 A.D.3d 876,918 N.Y.S.2d 118 (2nd
Dept.. 2011 ). As a general rule, liability for a dangerous or defective condition on real property
must be predicated upon ownership, occupancy, control, or special use of that property. See, Kydd
v Daarta Realty Corp.• 60 A.D.3d 997,877 N.Y.S.2d 352 (2nd Dept., 2009).

A contractor may be held liable for an affirmative act of negligence which results in the
creation of a dangerous condition upon a public street or sidewalk. See, Pizzolorusso v. Metro/
Mechanical. et. al., 205 A.D.3d 748, 168 N.Y.S.3d 103 (2 nd Dept., 2022), citing, Sturm v. Myrtle
Catalpa. LLC, 149 A.D.3d 1130, 53 N.Y.S.3d 356. Ordinarily, a defendant moving for summary
judgment in a trip and fall case has the burden of establishing that it did not create the hazardous
condition that allegedly caused the fall and did not have actual or constructive notice of that
condition for a sufficient length of time to discover and remedy it. See, Adzei v. Edward Builders,
et.al., 221 A.D.3d 639, 198 N.Y.S.3d 755 (2nd Dept., 2023).

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Here, Hallen and National Grid have not satisfied their prima facie burden that they did not
cause or create the alleged defect. Hallen and National Grid have provided the self-serving
deposition testimony of its witnesses, Mr. Edwards and Mr. Stone, yet have failed to provide any
documentary evidence demonstrating the work it admitted to performing on 14th Avenue between
48 th and 49th Streets in August 201 7. Accordingly, the burden never shifted to the plaintiff and
Verizon to raise a triable issue of fact. See, Winegradv New York Univ. Med. Ctr., 64 N.Y.2d 851,
487 N.Y.S.2d 316 (1985). Nevertheless, there are triable issues of fact as to whether Hallen and
National Grid created the dangerous condition based upon the deposition testimony of Mr.
Edwards and Mr. Stone; the excavation, restoration and paving work order from National Grid and
Hallen for January 1, 2017 through January 31, 2018; the photographs of the barricades; and the
NYC DOT report/complaint, which identified National Grid a/k/a Brooklyn Union Gas a/k/a
Keyspan as the utility company that placed metal plates at the crosswalk of 14th Ave. and 49th St.,
within 30 days of the date of plaintiffs fall.

Accordingly, Hallen and National Grid's motion for summary judgment is hereby denied
in its entirety.

Verizon's Motion

Defendant, Verizon, moves pursuant to CPLR § 3212, for an order granting summary
judgment dismissing plaintiffs complaint and all cross-claims (motion seq. no. 7), on the grounds
that it did not conduct work at the alleged accident site and did not create the alleged defective
condition. Plaintiff and the defendants, Hallen and National Grid, oppose Verizon's motion on the
grounds that Verizon has failed to make a prima facie showing entitling it to summary judgment
by failing to demonstrate that it did not create the raised condition and there remains questions of
fact regarding Verizon's liability.

Plaintiff, Hallen, and National Grid argue that Verizon failed to demonstrate that it did not
create the subject hazardous condition. In support, plaintiff, Hallen, and National Grid have offered
the deposition testimony of Verizon' s research manager, Aaron Crawford, who testified that the
documents he identified confirmed that Verizon's contractor performed work, including a "cut," in
the subject intersection. The cut was opened on January 18, 2018 and made final on January 29,
2018, the period during which the plaintiff's accident occurred. Mr. Crawford also identified
another cut made by Verizon's contractor on January 18, 2018 in an area that included the
crosswalk at the intersection of 14th Avenue and 49 th Street, and made final on January 31, 2018.
Plaintiff, Hallen, and National Grid further argue that Verizon is now attempting to avoid the
implications of Mr. Crawford's prior deposition testimony or feign an issue of fact by annexing an
affidavit from Mr. Crawford to its moving papers, whereby he admits that Verizon's contractor
performed work in the subject intersection where Mr. Gruber's accident occurred, but claimed that
the work did not involve the northeastern crosswalk of the intersection where the accident
occurred.

Here, Verizon has satisfied its burden in making a prima facie showing of its entitlement
to summary judgment by submitting evidence showing that it did not owe a duty to the plaintiff as
it did not own, occupy, control, or have a special use of the subject property at the time of the
accident and, thus, could not be held liable for injuries caused by the allegedly dangerous

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conditions. See, Mitchell v Icolari, 108 A.D.3d 600, 969 N.Y.S.2d 503 (2 nd Dept., 2013).
Furthermore, Verizon's submission of the Mr. Edward's deposition and affidavit testimony in
which he identified a map/drawing of the location and photographs of the crosswalks, make out
Verizon's prima facie case that it had not caused or created the alleged defect, or negligently
repaired the roadway where the injured plaintiff fell, since its work was confined to the
"southwestern crosswalk" of the intersection of 14th Avenue and 49 th Street, whereas the plaintiff
allegedly fell at the "northeastern crosswalk" of 14th Avenue and 49 th Street. See, Arrucci v City
o{New York, 45 A.D.3d 617, 846 N.Y.S.2d 269 (2 nd Dept., 2007); Ciavarelli v Town of/slip, 67
A.D.3d 623, 888 N.Y.S.2d 172 (2 nd Dept., 2009).

In opposition, plaintiff, Hallen, and National Grid have failed to raise a triable issue of fact
as they did not offer any arguments or proof that Verizon did any work at the "northeastern
crosswalk" where plaintiff fell, or alternatively, that the nature of the work in question might
reasonably be expected to require activity beyond the "southwestern crosswalk" and into the
"northeastern crosswalk." The court observes that Mr. Edwards admitted in his deposition
testimony that Verizon made a cut to "the subject intersection" and "the crosswalk." The court
further observes that Mr. Edwards specified and clarified in his affidavit that the "crosswalk" he
was referring to in his deposition testimony was the "southwestern crosswalk," which the court
does not consider feigning an issue of fact. The court notes that the plaintiff fell on the "northeast
crosswalk" of the intersection of 14th Avenue and 49 th Street, which is comprised of four
crosswalks (northeast, southeast, southwest, and northwest) but plaintiff, Hallen, and National
Grid have failed to address which "crosswalk" the plaintiff fell on versus which "crosswalk"
Verizon conducted work on. Instead, plaintiff, Hallen, and National Grid exclusively focus on
Verizon's admission to conducting work on "the crosswalk" without setting forth any arguments
or providing proof that Verizon performed work on the "northeast crosswalk" where plaintiff fell.
Nor is any argument advanced by plaintiff, Hallen, and National Grid as to Verizon's work on the
"southwest crosswalk" being in reasonable proximity to the "northeast crosswalk." As such, the
court finds that Verizon's work in relation to manholes 285 and 286 and the "southwestern
crosswalk" is not in reasonable proximity to the location of plaintiffs alleged accident on the
"northeastern crosswalk." See, Rosa v. City o{New York. et. al., 215 A.D.3d 707, 187 N.Y.S.3d
685 (2 nd Dept., 2023).

Accordingly, Verizon's motion for summary judgment is hereby granted in its entirety.

This constitutes the decision and order of this Court.

Dated: Brooklyn, New York
March 24, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10838934. Public record. Not legal advice.