The opinion
Allen v City of New York
2024 NY Slip Op 31872(U)
May 31, 2024
Supreme Court, New York County
Docket Number: Index No. 154024/2018
Judge: Hasa A. Kingo
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
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 154024/2018
NYSCEF DOC. NO. 402 RECEIVED NYSCEF: 05/31/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 154024/2018
ELAINE ALLEN,
08/29/2023,
09/15/2023,
Plaintiff,
MOTION DATE 11/14/2023
- V -
MOTION SEQ. NO. 008 009 010
THE CITY OF NEW YORK, TIME WARNER CABLE NEW
YORK CITY LLC., CONSOLIDATED EDISON, INC., LEVEL
3 COMMUNICATIONS, LLC., EMPIRE CITY SUBWAY
DECISION + ORDER ON
COMPANY (LIMITED), CITYBRIDGE, LLC.,
MOTION
Defendant.
------------------------------------------------------------------- --------------X
CONSOLIDATED EDISON, INC. Third-Party
Index No. 596029/2018
Plaintiff,
-against-
CAC INDUSTRIES, INC.
Defendant.
-------------------------------------------------------------------------------- X
TIME WARNER CABLE NEW YORK CITY LLC. Second Third-Party
Index No. 595138/2019
Plaintiff,
-against-
OLD HOE INC., HYLAN DATACOM & ELECTRICAL LLC,
HYLAN DATACOM & ELECTRICAL INC.
Defendant.
-------------------------------------------------------------------------------- X
OLD HOE INC., HYLAN DATACOM & ELECTRICAL LLC, Third Third-Party
HYLAN DATACOM & ELECTRICAL INC. Index No. 595579/2022
Plaintiff,
-against-
MOTTCO CONTRACTING CORPORATION
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Defendant.
-------------------------------------------------------------------------------- X
The following e-filed documents, listed by NYSCEF document number (Motion 008) 257, 258, 259, 260,
261,262,263,264,265,266,267,268,269,270,271,272,273,274,275,276,277,278,279,280,281,
315,316,317,318,319,320,322,344,345,346,347,348,349,350,351,352,353,354,355,356,357,
358,392,393
were read on this motion to/for SUMMARY JUDGMENT(BEFORE JOIND)
The following e-filed documents, listed by NYSCEF document number (Motion 009) 282, 283, 284, 285,
286,287,288,289,290,291,292,293,294,295,296,297,298,299,300,301,302,303,304,305,306,
307,308,309,310,311,321,323,359,360,361,362,363,364,365,366,367,368,369,370,371,372,
373,397,398
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
The following e-filed documents, listed by NYSCEF document number (Motion 010) 324, 325, 326, 327,
328,329,330,331,332,333,334,335,336,337,338,339,340,341,342,343,374,375,376,377,378,
379,380,381,382,383,384,385,386,387,388,389,390,391,394,395,396
were read on this motion to/for JUDGMENT-SUMMARY
Defendants, Time Warner Cable New York City LLC ("Time Warner"), Consolidated
Edison of New York, Inc. ("Con Ed"), and Empire City Subway Company (Limited) ("ECS") each
move pursuant to CPLR § 3212 for summary judgment to dismiss Plaintiff Elaine Allen's
("Plaintiff') complaint and all cross-claims against them. Time Warner further moves for summary
judgment against Second Third-Party Defendants/Third Third-Party Plaintiffs, Old Hde Inc.,
Hylan Datacom & Electrical Inc., Hylan Datacom & Electrical LLC (collectively identified as
"Hylan") for contractual and common law indemnification. Defendants, the City of New York (the
"City") and Hylan oppose Time Warner's motion. Plaintiff opposes Time Warner, Con Ed and
ECS' motions. For the reasons stated herein, Time Warner's motion is granted in part (Motion
Seq. 008), Con Ed's motion is granted (Motion Seq. 009), and ECS' motion is granted (Motion
Seq. 010).
BACKGROUND
On May 1, 2017, Plaintiff tripped and fell in a crosswalk located at West 39th Street and
Eighth Avenue because of two holes in the roadway (NYSCEF Doc No. 276, Statement of material
facts ,i,i 1, 2). Plaintiff was walking in the crosswalk when she tripped and fell in one pothole and
then as she was trying to steady herself, tripped and fell in a second pothole (id. ,i 2). In 2016, prior
to Plaintiff's accident, Time Warner engaged Hylan to install conduits in the crosswalk located at
West 39th Street and Eighth Avenue (NYSCEF Doc No. 267, Time Warner deposition transcript
at 19, lines 11-16). On July 30, 2016, in furtherance of this project, Hylan excavated a trench in
the crosswalk at West 39th Street and Eighth Avenue from an ECS manhole to the building at 275
West 39th Street (NYSCEF Doc No. 268, Hylan deposition transcript at 19 lines 18-22, 22 lines
10-15, 32 lines 2-12). After completing the excavation, Hylan engaged Mottco Contracting
Corporation ("Mottco") to backfill and pave the site, which Mottco completed on August 7, 2016
(NYSCEF Doc No. 268, Hylan deposition transcript at 23 lines 15-24, 32 lines 10-20).
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On May 1, 2018, Plaintiff commenced this action to recover damages for personal injuries
sustained because of the fall (NYSCEF Doc No. 1, Verified complaint). Issue was joined by Time
Warner and Con Ed by service of their answers on June 8, 2018 (NYSCEF Doc No. 11, verified
answer; NYSCEF Doc No. 12, verified answer). ECS joined issue by service of its answer on July
2, 2018 (NYSCEF Doc No. 32, verified answer). On December 20, 2018, Con Ed commenced a
Third-Party action against CAC Industries, Inc. (NYSCEF Doc No. 45, Verified third-party
complaint). Con Ed discontinued this third-party action on January 19, 2022 (NYSCEF Doc No.
175, stipulation of discontinuance). On January 31, 2019, Time Warner commenced a second
third-party action against Hylan (NYSCEF Doc No. 53, verified second third-party complaint).
Hylan joined issue by filing its third-party answer on May 1, 2019 (NYSCEF Doc No. 83, verified
answer to second third-party complaint). On October 8, 2019, Defendant Level 3 Communications
was granted summary judgment dismissing Plaintiff's complaint and all cross-claims against it
(NYSCEF Doc No. 126). On December 23, 2019, Defendant City Bridge LLC was granted
summary judgment dismissing Plaintiff's complaint and all cross-claims against it (NYSCEF Doc
No. 133). On June 9, 2022, Hylan commenced a third third-party action by filing a third-party
summons and complaint against Mottco (NYSCEF Doc No. 180, verified third third-party
complaint). Mottco joined issue on September 29, 2022 (NYSCEF Doc No. 190, verified answer
to third third-party complaint).
Plaintiff was deposed on June 28, 2021 (NYSCEF Doc No. 266, Plaintiff's deposition
transcript). Time Warner was deposed on October 14, 2021 (NYSCEF Doc No. 267, deposition
tr). Hylan and Empire were deposed on April 27, 2022 (NYSCEF Doc No. 268, Hylan deposition
tr; NYSCEF Doc No. 304, ECS deposition tr). Mottco was deposed on February 27, 2023
(NYSCEF Doc No. 269, Mottco deposition tr). Plaintiff filed the Note of Issue on July 17, 2023
(NYSCEF Doc No. 213, note of issue). Time Warner timely filed its summary judgment motion
on August 29, 2023 (NYSCEF Doc No. 257, notice of motion). Con Ed timely filed its summary
judgment motion on September 15, 2023 (NYSCEF Doc No. 282, notice of motion). ECS timely
filed its summary judgment motion on November 14, 2023 (NYSCEF Doc No. 324, notice of
motion).
During Plaintiff's hearing pursuant General Municipal Law § 50-h and at her examination
before trial, she was shown photographs of the subject intersection and asked to identify the
potholes that caused her accident (NYSCEF Doc No. 344, Bowman affirmation ,i 21; NYSCEF
Doc No. 355, marked photographs). When witnesses for Time Warner and Hylan were shown the
marked photographs during their depositions, the witnesses testified that the photographs depicted
and included the area that Hylan and Mottco performed excavation and repaving work in 2016
(NYSCEF Doc No. 267, deposition tr at 25-28; NYSCEF Doc No. 268, deposition tr at 30, 32,
34).
DISCUSSION
Pursuant to CPLR § 3212(b), a motion for summary judgment "shall be granted if, upon
all the papers and proofs submitted, the cause of action or defense shall be established sufficiently
to warrant the Court as a matter of law in directing judgment in favor of any party" (CPLR §
3212[b ]). "The proponent of a motion for summary judgment must demonstrate that there are no
material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Dallas-
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Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007]). To be a "material issue of fact" it
"must be genuine, bona fide and substantial to require a trial" (Leumi Financial Corp. v Richter,
24 AD2d 855 [1st Dept 1965]). The movant's burden is "heavy," and "on a motion for summary
judgment, facts must be viewed in the light most favorable to the non-moving party" (William J
Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013][internal
quotation marks and citation omitted]). "A motion for summary judgment should not be granted
where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or
where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010][internal
quotation marks and citation omitted]).
I. Time Warner's Motion Seq. 008
Time Warner moves for summary judgment to dismiss Plaintiff's complaint and all cross-
claims against it on the grounds that Time Warner cannot be held liable for the negligence of its
independent contractor, Hylan, or Hylan's independent contractor, Mottco. Time Warner also
contends it is entitled to summary judgment for contractual and common law indemnification
based on its agreement with Hylan (the "Time Warner/Hylan Agreement") and Hylan's control
over the contracted work. In support of its motion, Time Warner offers uncontroverted evidence
including testimony, pleadings, photographs, records, and the Time Warner/Hylan Agreement to
demonstrate that Hylan performed work at 275 West 39th Street as an independent contractor on
behalf of Time Warner on July 30, 2016 (NYSCEF Doc No. 276, Statement of material facts ,i 5).
Time Warner contends that its evidence demonstrates that Time Warner did not supervise Hylan's
work or provide Hylan's employees with equipment and that Hylan supervised its own employees
and provided them with equipment to do their work (id. ,i,i 6, 9-12). Time Warner avers that
summary judgment on contract and common law indemnification is warranted because of the
indemnification language in the Time Warner/Hylan Agreement and Hylan' s control over the work
that was performed (NYSCEF Doc No. 258, Kreines affirmation ,i 48).
The City opposes that branch of Time Warner's motion seeking summary judgment dismissal
of Plaintiff's complaint. The City takes no position on Time Warner's motion for summary
judgment granting contract and common law indemnification. The City contends that Time Warner
has not eliminated all questions of fact regarding its control over Hylan because the Time
Warner/Hylan Agreement stipulates that Time Warner retained the right, in its discretion, to
inspect any work performed by Hylan, and requires Hylan to make changes to remedy failures
identified during such inspections (NYSCEF Doc No. 277, Lynch affirmation ,i 6).
Hylan opposes that branch of Time Warner's motion for summary judgment as against Hylan,
granting contract and common law indemnification. Hylan takes no position on Time Warner's
motion seeking summary judgment dismissal of the complaint. Hylan contends that summary
judgment granting contract and common law indemnification is not warranted because Hylan did
not cause or create the holes that caused Plaintiff to fall and as such there is no causal connection
between Plaintiff's injury and any act or omission by Hylan (NYSCEF Doc No. 316, Atwell
affirmation ,i,i 7, 8). Further, Hylan contends that indemnification is not warranted because Mottco
performed the paving work (id. ,i 12). Lastly, Hylan contends that Plaintiff's claim does not arise
out ofHylan's work and indemnification is not warranted (id. ,i 11).
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Plaintiff opposes that branch of Time Warner's motion for summary judgment dismissing
Plaintiffs complaint. Plaintiff contends that summary judgment is not warranted because there is
an issue of fact regarding Time Warner's control over Hylan. Plaintiff concedes that Hylan
performed work at the accident location, or in close proximity thereto, but contends that the Time
Warner/Hylan Agreement allows Time Warner the right to inspect any and all work performed by
Hylan (NYSCEF Doc No. 344, Bowman affirmation ,i 25). Further, Plaintiff contends that
pursuant to the Time Warner/Hylan Agreement, Time Warner has the responsibility of notifying
Hylan if its work failed to meet Time Warner's standards, including non-delegable duties Section
9.1 of the Time Warner/Hylan Agreement (id. ,i 26). Lastly, Plaintiff contends that there is no
evidence that Time Warner did not have a role in inspecting the work that Hylan performed (id. ,i
28).
In reply, Time Warner reiterates its position that summary judgment is warranted because
there is no issue of material fact that Time Warner did not direct or control Hylan (NYSCEF Doc
No. 318, Kreines affirmation ,i 2; NYSCEF Doc No. 392, Kreines affirmation ,i 2).
A. General Contractor Liability
To maintain a cause of action in negligence, "a plaintiff must demonstrate (1) a duty owed
by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting
therefrom" (Pasternackv Lab '.Y Corp. ofAm. Holdings, 27 NY3d 817, 825 [2016]). "A defendant
moving for summary judgment in a slip-and-fall action has the initial burden of showing that it
neither created, nor had actual or constructive notice of the dangerous condition that caused
plaintiffs injury" (Ross v Betty G. Reader Revocable Tr., 86 AD3d 419, 42 [1st Dept 2011]).
"Generally, a party that hires an independent contractor cannot be held liable for the negligence of
that independent contractor and summary judgment is appropriate where the evidence on the issue
of control of the method and means of the work presents no conflict" (Concord Vill. Owners, Inc.
v Trinity Commc 'ns Corp., 61 AD3d 410, 411 [1st Dept 2009][internal citations omitted). "The
primary justification for this rule is that one who employs an independent contractor has no right
to control the manner in which the work is to be done and thus, the risk of loss is more sensibly
placed on the contractor" (Linder v. United Metro Energy Servs. Corp., 193 AD3d 513, 513 [1st
Dept 2021 ]). The critical inquiry therefore is whether the principal has control over the method
and means of the subcontractor's work (id.). Courts have routinely held that supervision, receiving
regular updates, or conducting an inspection of the work after it was performed does not form a
basis for imposing liability against the principal (Miller v Infohighway Commc 'ns Corp., 115
AD3d 713, 715 [2d Dept 2014]; Goodwin v Comcast Corp., 42 AD3d 322, 323 [1st Dept 2007]).
There are three exceptions to this general rule, when liability can be imposed on a principal,
including: "(1) negligence of the employer in selecting, instructing, or supervising the contractor;
(2) non-delegable duties of the employer, arising out of some relation toward the public or the
particular plaintiff'; and (3) work which is specially, peculiarly, or inherently dangerous" (Linder,
193 AD3d at 513-14 [internal quotation marks omitted]).
Here, Time Warner proffers uncontroverted evidence including pleadings, testimony,
records, photographs, and the Time Warner/Hylan Agreement to demonstrate prima facie
entitlement to summary judgment as a general contractor. Testimony by Time Warner and Hylan's
witnesses demonstrates that Time Warner did not supervise Hylan or provide equipment to Hylan' s
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employees, and that Hylan supervised its own work and used its own equipment. Time Warner
personnel were not present at the site and Time Warner is not in the business of construction
excavation. The Time Warner/Hylan Agreement further demonstrates the nature of this
relationship. Section 18 of the agreement states in pertinent part that " ... Contractor is acting
solely as an independent contractor and not as an agent or employee of [Time Warner]" (NYSCEF
Doc No. 272. Time Warner/Hylan agreement at 18-19). Section 1. 1 states in pertinent part "[Time
Warner] hereby engages Contractor to provide the labor, materials, tools, equipment and services
necessarily to perform the construction, building, rebuilding, maintaining, and/or upgrading of
certain cable telecommunication systems ... " (id. at 1).
In opposition, the City and Plaintiff point to sections of the Time Warner/Hylan Agreement
in an attempt to create a material issue of fact regarding Time Warner's control over Hylan.
Specifically, the City and Plaintiff cite to Sections 7.1 and 7.2, which give Time Warner the right
to inspect Hylan' s work and notify Hylan in the event that the work fails to meet Time Warner's
standards. 1 These arguments do not create an issue of material fact. Not only do the City and
Plaintiff skip over relevant language that further demonstrates that the relationship is that of a
principal and independent contractor, but even if Time Warner did inspect Hylan' s work, it would
not create a basis for imposing liability on Time Warner. 2 Post work inspections do not create a
basis for imposing liability on the principal where the principal does not otherwise control the
means or method of the independent contractor's work (Miller, 115 AD3d at 715). Lastly, Time
Warner testified about what transpired after Hylan completed the project. Time Warner went to
the site and took measurements of the trench so that It could effect payment on Hylan (NYSCEF
Doc No. 267, Time Warner deposition tr at 34-35). Accordingly, Time Warner's post work
inspections and related contract language do not create a material issue of fact sufficient to
overcome Time Warner's primafacie showing of entitlement to judgment as a matter of law.
Lastly, Plaintiff contends that section 9.1.2 of the Time Warner/Hylan Agreement
pertaining to the Occupational Safety and Health Act of 1970 ("OSHA") creates a non-delegable
duty that makes Time Warner liable for Plaintiff's injuries. Section 9 .1 relates to general
representations, warranties, and covenants by the Contractor and not Time Warner. The duty
therefore is on Hylan, and not Time Warner. Moreover, OSHA regulates conduct between
employers and its employees, in this instance, between Hylan and its employees. As such,
Plaintiff's reliance on section 9.1.2 to show a nondelegable duty on the part of Time Warner is
misplaced and without merit. Because no exception applies, and because Time Warner met its
1
Section 7.1 states in pertinent part, Time Warner "shall have the right, at its sole discretion, to inspect any and all
Work being performed by Contractor at any time." Section 7.2 states in pertinent part, "[i]n the event any Work fails
to meet the standards set by [Time Warner], upon notification of such failure by [Time Warner], Contractor shall,
without charge, replace any material or correct any workmanship found by [Time Warner] not to confirm with [Time
Warner's] requirements as set forth herein and in the applicable Statement of Work."
2
Section 7.1 states in pertinent part, "Contractor shall furnish promptly, without additional charge, all facilities, labor,
and material reasonably needed for performing safe and convenient inspections as may be required by [Time Warner]."
Section 7.2 states in pertinent part, "Contractor shall, without charge, replace any material or correct any workmanship
found by [Time Warner] not to confirm with [Time Warner's] requirements as set forth herein and in the applicable
Statement of Work."
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prima facie burden of showing that Hylan was an independent contractor, Time Warner's motion
for summary judgment dismissing Plaintiffs complaint and all cross-claims is granted. 3
B. Contract Indemnification
Parties to a contract are free to include a promise by one party "to hold the other harmless
for a particular loss or damage" (Hooper Assocs., Ltd. v AGS Computers, Inc., 74 NY2d 487,491
[1989]). When an intent to indemnify can be clearly implied from the contract language and
purposes of the entire agreement in conjunction with the surrounding facts and circumstances, the
parties are entitled to full contractual indemnification (Bradley v Earl B. Feiden, Inc., 8 NY3d 265,
274 [2007]; Drzewinski v Atl. Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]). It is well settled
that "provisions conditioning indemnity upon claims 'arising out of' or otherwise connected with
the performance of the contracted work [as opposed to the contractor's negligence] do not require
proof of the indemnitor's negligence or fault" (Pereira v KSK Const. Group, 2023 NY Slip Op
30052[U], *8 [Sup Ct, NY County 2023], affd 222 AD3d 541 [1st Dept 2023]). Because the
indemnification is conditioned on the contracted work, and not the indemnitor' s negligence, the
duty to indemnify is triggered by the claim, and the commencement of the action even though the
indemnitor has not been found negligent (Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178
[1990]; Espinal v City of New York, 107 AD3d 411,412 [1st Dept 2013]).
The indemnification provision in the Time Warner/Hylan agreement contains language that
Hylan's duty to indemnify Time Warner arises out of the work performed by Hylan, and is not
conditioned upon Hylan's negligence. Accordingly, Hylan's duty to indemnify Time Warner is
triggered by claims arising out of Hylan' s work, irrespective of any negligence that may ultimately
be established against Hylan. Section 15 of the Time Warner/Hylan agreement states in pertinent
part,
Contractor agrees to hold harmless, indemnify, and defend [Time Warner] ... from
any and all claims, causes of action, losses, damages, fines, penalties, suits,
judgments, or settlements made against [Time Warner], and liability of every kind
caused by, arising out of, or related, directly or indirectly, to (a) any Work
performed by Contractor directly or indirectly (including by any of Contractor's
Subcontractors or any other person or entity acting at Contractor's direction or in
Contractor's control) [... ] (c) any act or omission of Contractor that results in (i)
any bodily injury, sickness, disease, or death [.]" "It is expressly understood that
contractor by the terms of this paragraph, hereby agrees to defend and indemnify
and hold indemnified party harmless whether indemnified party is alleged to be, or
is found to be, solely, concurrently, or comparatively negligent or at fault in any
way."
(NYSCEF Doc No. 272, contract at 17).
This language demonstrates a clear and unambiguous intent to indemnify Time Warner
against all claims arising out of any work performed by Hylan. Hylan's contention that it did not
3
Here, there is no evidence that Time Warner was negligent when selecting Hylan to excavate the trench and
excavating a trench is not inherently dangerous to the public (Linder, 193 AD3d at 513-14).
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perform the work that caused Plaintiff's accident and therefore has no duty to indemnify Time
Warner is unpersuasive because Hylan's duty to indemnify Time Warner is triggered regardless
of whether Hylan' s work is ultimately determined to have caused Plaintiff's accident. Accordingly,
Time Warner has met its prima facie burden of establishing its entitlement to indemnification
based on the contract language in the Time Warner/Hylan Agreement.
C. Common Law Indemnification
"Common-law indemnification is predicated on vicarious liability without actual fault" on
the part of the indemnitee (Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364,367 [1st Dept2006]).
"To be entitled to common-law indemnification, a party must show (1) that it has been held
vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the
proposed indemnitor was either negligent or exercised actual supervision or control over the
injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]; Kaminer
v the City ofNew York, 2014 WL 1392290 (Sup Ct, NY County 2014). Where there is no "liability,
vicarious or otherwise, there is no basis for indemnification" (Nieves-Hoque v 680 Broadway,
LLC, 99 AD3d 536, 537 [1st Dept 2012]. Moreover, where the indemnitor has not been found
negligent, granting summary judgment on common law indemnification would be premature
(Pueng Fung v 20 W 37th St. Owners, LLC, 74 AD3d 635, 636 [1st Dept 2010]).
Here, Hylan has not been found negligent or the proximate cause of Plaintiff's injuries and
as such, Time Warner's motion for summary judgment on common law indemnification is
premature.
II. Con Ed's Motion Seq. 009
Con Ed moves pursuant to CPLR § 3212 to dismiss Plaintiff's complaint and all cross-
claims against it because it did not owe a duty to Plaintiff. Con Ed contends that it did not cause
or create the defect that caused Plaintiff to fall, and to the extent that work was done in the subject
area, the work was performed by its independent contractor, CAC Industries, Inc. in 2015, almost
two years prior to Plaintiff's fall and one year before Hylan's excavation (NYSCEF Doc No. 284,
Cosentino affirmation ,i,i 43, 58, 63). Con Ed proffers pleadings, testimony, photographs, and
records to establish prima facie entitlement to summary judgment. Plaintiff opposes the motion
because Con Ed's deponent could not identify whether the work performed in 2015 was depicted
in photographs marked by Plaintiff as the site of her fall (NYSCEF Doc No. 359, Bowman
affirmation ,i,i 20, 21).
To maintain a cause of action in negligence, "a plaintiff must demonstrate (1) a duty owed
by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting
therefrom" (Pasternack, 27 NY3d at 825). "A defendant moving for summary judgment in a slip-
and-fall action has the initial burden of showing that it neither created, nor had actual or
constructive notice of the dangerous condition that caused plaintiffs injury" (Ross, 86 AD3d at
421). A defendant who has not performed or is not responsible for the construction work at an
accident site, owes no duty to a plaintiff injured at the site (Kenney v City of New York, 30 AD3d
261, 262 [1st Dept 2006]). In the absence of a duty, there can be no liability (Pasternack, 27 NY3d
at 825). "Once a defendant establishes prima facie entitlement to such relief as a matter oflaw, the
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burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect or notice
thereof' (Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [1st Dept 2008]).
Here, Con Ed met its prima facie burden of establishing that it did not owe a duty to
Plaintiff. Con Ed proffers uncontroverted evidence consisting of pleadings, testimony,
photographs, and records to demonstrate that it did not create the defect which caused Plaintiff to
fall. To the extent that work was performed at West 39th Street and Eighth Avenue, it was done
by Con Ed's independent contractor one year before Hylan and Mottco excavated and paved the
area respectively. Moreover, Hylan testified that the area depicted in Plaintiff's photographs is the
location where Hylan excavated a trench in July 2016. Notably, Hylan, Mottco, and Time Warner
do not oppose Con Ed's motion. Plaintiff's opposition fails to raise a triable issue of fact.
Testimony that Time Warner's witness did not know whether Plaintiff's marked photographs
depicted the area where work was performed in 2015 is not evidence that Con Ed caused or created
the subject defects and does not rebut Con Ed's prima facie showing. Because Plaintiff has not
come forward with evidence sufficient to overcome Con Ed's prima facie showing, Con Ed's
motion to dismiss Plaintiff's complaint and all cross-claims against it is granted.
III. ECS' Motion Seq. 010
ECS moves pursuant to CPLR § 3212 for summary judgment to dismiss Plaintiff's
complaint and all cross-claims against it because it did not cause or create the defect, had no duty
to inspect the area where the accident occurred, was not an owner or possessor of the building,
facility, hardware, or property where Plaintiff's accident occurred (NYSCEF Doc No. 325,
McArthur affirmation ,i 3). Additionally, ECS contends that the subject defects are not within
twelve (12) inches of the ECS manhole located at West 39th Street and Eighth Avenue, and as
such ECS had no duty to maintain the area (id. ,i 5). In support of its motion ECS proffers
uncontroverted evidence including records, testimony, pleadings, photographs, and an affidavit to
demonstrate that the ECS manhole is more than twelve (12) inches from the subject defects and
that ECS did not perform work in the subject location.
Plaintiff opposes the motion because permits issued by DOT show that ECS performed
work at the subject location, ECS' witness testified that a roadway cut was made by ECS, and that
the ECS manhole is within twelve (12) inches of the defect (NYSCEF Doc No. 374, Bowman
affirmation ,i,i 25, 26, 27). In reply, ECS contends that its witness clearly testified that it did not
perform work at the subject location, that roadway cuts were made to different locations, and that
Plaintiff has not presented any evidence that the manhole is located within twelve (12) inches of
the subject defects (NYSCEF Doc No. 394, McArthur affirmation ,i 20-25, 32-34).
A defendant who has not performed or is not responsible for the construction work at an
accident site, owes no duty to a plaintiff injured at the site (Kenney, 30 AD3d at 262). Additionally,
the owners of covers or gratings are not responsible for maintaining the area beyond twelve inches
from the edge of such hardware (New York City Charter§ 2-07; Storper v Kobe Club, 76 AD3d
426, 427 [1st Dept 2010]). Summary judgment is warranted when a defect is more than twelve
(12) inches from the defendant's manhole and there is no evidence that defendant caused or created
the defective condition (Jones v 3417 Broadway LLC, 172 AD3d 551,551 [1st Dept 2019]; Garcia
v City ofNew York, 99 AD3d 491,492 [1st Dept 2012]).
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Here, ECS proffers uncontroverted evidence consisting of pleadings and testimony to
establish prima facie entitlement to summary judgment. The testimony of Time Warner, Hylan,
Mottco, and ECS demonstrate that ECS did not perform work at the subject location or create the
subject defects, and that the subject defects were located within and attached to the area where
Hylan excavated and Mottco repaved a trench in 2016. The permits that Plaintiff relies on in
opposition to ECS' motion were not issued to ECS, but Time Warner, and do not create an issue
of fact regarding whether ECS performed work at the subject location. Moreover, Plaintiff does
not present any factual proof or expert testimony that the ECS manhole is within 12-inches of the
defects identified by Plaintiff (Jones, 172 AD3d at 551. Accordingly, where ECS has met its prima
facie burden of showing that it did not cause or create the defect and did not have a duty to inspect
and/or maintain the premises, ECS' motion for summary judgment dismissing Plaintiffs
complaint and all cross-claims against it is granted.
Accordingly, it is hereby
ORDERED that defendant Time Warner Cable New York City LLC' s motion for summary
judgment (Motion Seq. 008) is granted; and it is further
ORDERED that the complaint and all cross-claims against Time Warner New York LLC' s
are dismissed against it; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of Time Warner Cable
New York City LLC dismissing the claims and cross-claims made against them in this action,
together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate
bill of costs; and it is further
ORDERED that Time Warner Cable New York City LLC is granted summary judgment
on the first and second causes of action interposed in the second third-party action (Index No.
595138/2019) as against Old Hde Inc., Hylan Datacom & Electrical Inc., Hylan Datacom &
Electrical LLC for contractual indemnification is granted; and it is further
ORDERED that defendant Consolidated Edison, Inc.' s motion for summary judgment
(Motion Seq. 009) is granted and the complaint and all cross-claims are dismissed against it; and
it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of Consolidated
Edison, Inc. dismissing the claims and cross-claims made against them in this action, together with
costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs;
and it is further
ORDERED that defendant Empire City Subway Company's (Limited) motion for
summary judgment (Motion Seq. 010) is granted and the complaint and all cross-claims are
dismissed against it; and it is further
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ORDERED that the Clerk of the Court shall enter judgment in favor of Empire City
Subway Company (Limited) dismissing the claims and cross-claims made against them in this
action, together with costs and disbursements to be taxed by the Clerk upon submission of an
appropriate bill of costs.
This constitutes the decision and order of the court.
5/31/2024
DATE HASAA. KIN
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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