256 East 10th Street Associates v. Consolidated Edison Co.

282 A.D.2d 293, 723 N.Y.S.2d 358, 2001 N.Y. App. Div. LEXIS 3876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about March 16, 2000, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs claim for breach of contract was properly dismissed. Defendant was not bound by the alleged oral agreement between plaintiff and an unidentified purported employee of defendant, which agreement is claimed to have obligated defendant to repair a gas leak without interrupting service to plaintiffs building regardless of the hazard involved. Summary judgment was also properly granted dismissing plaintiffs negligence claim in light of the absence of any triable issue as to whether defendant had been negligent or as to whether, even if defendant had been negligent, such negligence was causally related to the asserted harm (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550; Murray v New York City Hous. Auth., 269 AD2d 288, 289). It is plain that the need for repairs to the gas pipes in plaintiffs building was not eventuated by defendant’s shut-off of gas to the building in order to repair a gas leak safely, but by the already sub-code condition of the building’s nearly century-old pipes.

Finally, defendant’s reliance upon an attorney’s affirmation along with sworn deposition testimony in support of its motion was proper (see, Gaeta v New York News, 62 NY2d 340, 350; Volpe v Canfield, 237 AD2d 282, 283, lv denied 90 NY2d 802) and sufficed to demonstrate defendant’s prima facie entitlement to judgment as a matter of law. Concur — Sullivan, P. J., Andrias, Ellerin, Rubin and Buckley, JJ.