Bermudez v. City of New York

21 A.D.3d 258, 799 N.Y.S.2d 497, 2005 N.Y. App. Div. LEXIS 8304

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered February 14, 2005, which denied the motion of defendant-appellant Acme-Skillman Concrete Co. for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against defendant-appellant. The Clerk is directed to enter judgment accordingly.

Contrary to the motion court’s finding, the street opening permit for catch basin installation work at the intersection where plaintiff stepped into a pothole and broke her ankle, and the City’s contract with Acme for such work, are insufficient to raise a question of fact as to whether such work was actually performed. The undisputed testimony of Acme’s project and of fice managers that, although it had obtained the permit, the City had cancelled the contract and, as a result, Acme performed no work at the site, together with the undisputed record of Acme’s job site locations listing the areas where it actually worked pursuant to the contract, which did not include the site of plaintiffs accident, warrants granting summary judgment in Acme’s favor. Concur—Mazzarelli, J.P., Andrias, Saxe, Marlow and Sullivan, JJ.