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Worthman v. Trocom Construction Corp

Supreme Court, New York County

April 18, 2013

DIANA WORTHMAN, Plaintiff,
v.
TROCOM CONSTRUCTION CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, TIME WARNER ENTERTAINMENT COMPANY, L.P., RICHARD HIRSCH, EMPIRE CITY SUBWAY COMPANY (LIMITED) and GRACE INDUSTRIES, INC., Defendants. Index No. 109419/06

Unpublished Opinion

MICHAEL D. STALLMAN, JASTICE

In this personal injury action arising out of an alleged trip and fall in a crosswalk, defendant New York City Transit Authority (NYCTA) moves for summary judgment dismissing plaintiffs complaint as against it, and plaintiff opposes (motion sequence 002). In motion sequence 003, second third party defendant Nico Asphalt Paving, Inc. (Nico) moves for summary judgment dismissing plaintiffs complaint and any and all cross claims as against defendant Empire City Subway Company (Limited) (ECS) and also moves to dismiss ECS' second third party complaint against itself. Plaintiff opposes the motion. In motion sequence 004, defendant Consolidated Edison Company of New York, Inc. (ConEd) moves for summary judgment dismissing the complaint and all cross claims as against it. Plaintiff opposes ConEd's motion. In motion sequence 005, defendant Empire City Subway Company (Limited) (ECS) moves for summary judgment dismissing plaintiffs complaint as against it and also moves for summary judgment on its second third party claim for indemnification from second third party defendant Nico. Plaintiff and Nico oppose ECS' motion. In motion sequence 006 defendant Trocom Construction Corporation (Trocom) moves for summary judgment dismissing the complaint and cross claims against it and plaintiff opposes. This decision addresses all five motions.

BACKGROUND

On April 19, 2005, plaintiff allegedly tripped and fell in the eastern crosswalk of East 72nd Street at its intersection with Lexington Avenue. She alleges that she had taken about five steps into the crosswalk when she tripped over a defect in the street and fell, sustaining serious injuries. (Coffey Affirmation, Ex. G at 19.) Plaintiff commenced this action against Trocom, ConEd, the City of New York (City), the NYCTA, Time Warner Entertainment Company, L.P. (Time Warner), Richard Hirsch, ECS and Grace Industries, Inc. Time Warner and Richard Hirsch subsequently commenced a third party action against Trinity Communications Corp., and Hylan Datacom & Electrical, Inc. ECS commenced a second third party action against Nico.

DISCUSSION

Motion Sequence 002

Defendant NYCTA has established its prima facie entitlement to judgment as a matter of law. It has shown that it has no duty to plaintiff and therefore cannot be liable for her injuries. Plaintiff testified at her deposition that she fell in the crosswalk at the intersection of East 72nd Street and Lexington Avenue after taking about five steps. (Coffey Affirmation, Ex. G at 17, 18-19, 84.) The NYCTA does not control public streets and sidewalks in the City of New York, nor is it responsible for maintenance and repair of them. "The responsibility for the maintenance, repair, and creation of the roadway surface lies with the defendant City of New York, not the NYCTA." (Tanzer v City of New York, 41 A.D.3d 582, 582 [2nd Dept 2007].

Plaintiff argues that the motion is premature because the NYCTA has not appeared for a deposition. Plaintiff further argues that the Lexington Avenue subway line runs underneath the accident location and that there are subway gratings in the vicinity. However, plaintiff does not allege that she tripped on a subway grating or near a subway grating. Furthermore, photographs of the area of the alleged accident do not show any gratings. (Coffey Affirmation, Ex. F.) The motion is not premature because it is a matter of law that the NYCTA is not responsible for public streets and sidewalks in the City of New York.

Motion Sequence 003

Third party defendant Nico moves for summary judgment dismissing plaintiffs complaint against ECS. A "third party defendant [is] permitted to raise any defense that defendant might have against plaintiffs main claim." (Jeanson v. Middlegrove Estates, 222 A.D.2d 782, 783 [3rd Dept 1995].) In this case, third party defendant Nico performed paving work for third party plaintiff ECS. (Canavan Affirmation, Ex. I at 38.) Nico has shown that ECS did not perform any work in the eastern crosswalk of the intersection of East 72nd Street Lexington Avenue. A witness produced by ECS for deposition stated that work was performed on the west side of East 72nd Street and Lexington Avenue and would not have extended into the eastern crosswalk. (Id. at 8-9, 37, 49.) An affidavit from Nico states that paving work was performed on the west side of East 72ndStreet and Lexington Avenue and that this work did not extended into the eastern crosswalk. (Id., Ex. K at ¶¶ 7, 9.) Plaintiff clearly states that she fell in the east crosswalk at the intersection and marked a photo showing where she fell. (Id., Ex. A, Ex. H at 17.) "Absent some evidence connecting defendants' work to the situs of plaintiff s injury, these defendants are entitled to summary judgment."

(Robinson v City of New York, 18 A.D.3d 255, 256 [1st Dept 2005].) Furthermore, "[wjithout some evidence of their proximate cause of plaintiff s injury, these defendants are entitled to summary judgment." (Cibener v City of New York, 268 A.D.2d 334, 334-335 [1st.Dept 2000].)

Plaintiff has not raised a triable issue of fact. Defendants have submitted evidence in admissible form to show that neither ECS nor Nico performed work in the area of plaintiff s alleged accident.

Nico has also established its prima facie entitlement to judgment as a matter of law dismissing ECS's third party action against Nico. ECS did not ...


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