Barca v. City of New York

13 Misc. 3d 464
CourtNew York Supreme Court
DecidedFebruary 15, 2006
StatusPublished
Cited by3 cases

This text of 13 Misc. 3d 464 (Barca v. City of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barca v. City of New York, 13 Misc. 3d 464 (N.Y. Super. Ct. 2006).

Opinion

OPINION OF THE COURT

Lucy Billings, J.

I. Background

Plaintiffs sue to recover for personal injuries and loss of services suffered October 3, 2000, when plaintiff Dawn Barca fell on a roadway adjacent to a curbside sewer grating in Bronx County. Defendant and third-party plaintiff Consolidated Edison Company of New York, Inc. and third-party defendant TriMessine Construction Co. separately move for summary judgment dismissing all claims against them. (CPLR 3212 [b].) Despite each moving party’s failure to include all defendants’ answers in support of the respective motions (id.), the court grants both unopposed motions for summary judgment.

While CPLR 2001 and 2101 (f) may be available to correct noncompliance with section 3212 (b)’s pleadings requirement, controlling authority precludes those measures to disregard such a transgression. This decision illustrates the consequent contortions required when parties fail to adhere to the pleadings mandate.

II. Summary Judgment Standards

“A motion for summary judgment shall be supported ... by a copy of the pleadings.” (CPLR 3212 [b] [emphasis added].) “The pleadings” means “a complete set of the pleadings” (Wider v Heller, 24 AD3d 433, 434 [2d Dept 2005]), or “all of the pleadings.” (Welton v Drobnicki, 298 AD2d 757, 757 [3d Dept 2002]; Hamilton v City of New York, 262 AD2d 283 [2d Dept 1999].) Consolidated Edison omits defendant City of New York’s answer. Consolidated Edison and Tri-Messine Construction both omit defendant Audax Construction Corp.’s answer. Where the moving parties fail to include copies of all the pleadings in their motion papers, the court is constrained to deny the motion for that reason alone. (State of New York v Metz, 241 AD2d 192, 198 [1st Dept 1998]; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663 [2d Dept 2004]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903, 904 [4th Dept 2001]; Gallagher v TDS Telecom, 280 AD2d 991 [4th Dept 2001].)

III. The Moving Parties’ Liability

Consolidated Edison and Tri-Messine Construction maintain that they are not liable for plaintiffs’ injuries because neither [466]*466this defendant nor third-party defendant performed any work at the site where plaintiff fell. Plaintiff Dawn Barca’s deposition testimony establishes that plaintiff fell when her foot tripped in a hole in the roadway abutting a sewer grating and the sidewalk on the southwest corner at the intersection of Hone Avenue and Esplanade. The moving parties also rely on unauthenticated photographs of the condition causing her injury and her unverified bill of particulars, but this corroboration is inadmissible.

Robert O’Brien, who kept records of work performed on the streets or sidewalks by Consolidated Edison and its contractors, testified at his deposition that during the two years before plaintiffs fall, Consolidated Edison and its contractors, including Tri-Messine Construction, did perform work in the vicinity of her fall and received complaints of conditions there. None of that work, however, was at the specific location where plaintiff fell. All that work, moreover, was completed several months before her fall. Tri-Messine Construction’s president at his deposition testified specifically that when Tri-Messine Construction performed asphalt restoration of Hone Avenue near its intersection with Esplanade in October 2000 under a contract with Consolidated Edison, Tri-Messine Construction performed no work where plaintiff fell.

This uncontroverted evidence establishes that neither Consolidated Edison nor Tri-Messine Construction is liable for plaintiffs’ injuries. (White v New York City Tr. Auth., 308 AD2d 341, 343 [1st Dept 2003]; Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [1st Dept 2000]; Hallas v New York Univ., 259 AD2d 444 [1st Dept 1999]; Willer v 61 Jane St. Tenants Corp., 184 AD2d 225, 226 [1st Dept 1992].) Consolidated Edison also sues Tri-Messine Construction for indemnification, breach of contract, and negligence, all contingent on Consolidated Edison’s liability to plaintiffs. The absence of defendant and third-party plaintiffs liability to plaintiffs, however, extinguishes its bases for third-party defendant’s liability to third-party plaintiff. (Kwoksze Wong v New York Times Co., 297 AD2d 544, 549 [1st Dept 2002]; F. Garofalo Elec. Co. v New York Univ., 270 AD2d 76, 80 [1st Dept 2000].) The absence of third-party defendant’s liability to plaintiffs likewise extinguishes its contribution and indemnification claims against third-party plaintiff.

IV Searching the Record and the Court File

In deciding a summary judgment motion, the court may search the record and grant summary judgment to any party entitled to judgment even if that party has not moved for that [467]*467relief. (CPLR 3212 [b]; Maheshwari v City of New York, 2 NY3d 288, 293 n 2 [2004]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111 [1984].) The motions by Consolidated Edison and Tri-Messine Construction, falling short of CPLR 3212 (b)’s requirement for the pleadings, present at least two questions. First, may the court treat a party that otherwise unsuccessfully moves for summary judgment the same way as a nonmoving party and search the record to grant the unsuccessful moving party summary judgment as well? Second, what record may the court search?

Wherever dismissal of an action or a claim is warranted based on a search of the record, the court may grant that relief despite a failure to seek the relief. (Ruggiero v Cardella Trucking Co., 16 AD3d 342, 343-344 [1st Dept 2005]; McDougal v Apple Bank for Sav., 200 AD2d 418, 419 [1st Dept 1994]; Hernandez v Linhart, 290 AD2d 534, 535 [2d Dept 2002]; Wolfson v Milillo, 262 AD2d 636, 637 [2d Dept 1999].) A particular purpose is to grant complete relief to parties united in interest. (J & A Vending v J.A.M. Vending, 303 AD2d 370, 374 [2d Dept 2003].) Logically, the determination of whether any nonowner of the roadway where plaintiff was injured had performed work there applies equally to Consolidated Edison and Tri-Messine Construction. As plaintiffs base Consolidated Edison’s liability on its negligent work, and Consolidated Edison and Tri-Messine Construction, if liable, in turn seek recompense from each other for the other’s negligent work, they are not united in interest, but share a common position. The undisputed evidence, that neither had performed work where plaintiff was walking when she fell, absolves Consolidated Edison from liability to plaintiffs and absolves both Consolidated Edison and Tri-Messine Construction from contingent liability to each other. (See Quinones v Caballero, 10 Misc 3d 486, 494 [Sup Ct, Bronx County 2005].)

A. Omission of Audax Construction’s Answer and Searching the Court File

The requirement for all pleadings to support a summary judgment motion may be overly technical, particularly when they may be found in the court file. Nevertheless, all the Appellate Divisions steadfastly enforce this mandate, and where as here Consolidated Edison seeks dismissal of all cross claims against this defendant, the answers of both its codefendants, Audax Construction and the City, are critical to determining those cross claims’ viability. (Niagara Frontier Transp. Auth. v City of

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Bluebook (online)
13 Misc. 3d 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barca-v-city-of-new-york-nysupct-2006.