Lopez v Brooklyn Union Gas Co. 2024 NY Slip Op 30507(U) February 15, 2024 Supreme Court, Kings County Docket Number: Index No. 504566/2019 Judge: Richard Velasquez 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 York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ INDEX NO. 504566/2019 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/15/2024
At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 15th day of FEBRUARY 2024 PRESENT: HON. RICHARD VELASQUEZ Justice. -----------------------------------------------------------------------------X NALDY LOPEZ, Petitioner(s), Index No.: 504566/2019 Decision and Order Mot. Seq. No. 5 & 6 -against-
THE BROOKLYN UNION GAS COMPANY, individually and d/b/a NATIONAL GRID NEW YORK and THE HALLEN CONSTRUCTION CO. INC., and NEW YORK PAVING, INC.
Respondent(s). ----------------------------------------------------------------------X
The following papers NYSCEF Doc #'s 83 to 148 read on this motion: Papers NYSCEF DOC NO. 's Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ __ 83-107; 110-131 Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ __ 132-135; 137-139; 143 Reply Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 146; 147; 148
After having come before the Court and the Court having heard oral argument on
AUGUST 2, 2023, and after considering the forgoing documents above filed in connection
with this matter the court finds as follows:
Defendant NEW YORK PAVING, INC. moves pursuant to CPLR 3212 for summary
judgment in favor of defendant dismissing plaintiffs claims in their entirety; (b) dismissing
co-defendants' cross-claims in their entirety. (MS#S) Plaintiff opposes the same.
Plaintiff moves for an Order pursuant to CPLR § 3212, granting plaintiff partial
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summary judgment on the issue of liability against defendants, THE BROOKLYN UNION
GAS COMPANY, individually and D/B/A NATIONAL GRID NEW YORK and HALLEN
CONSTRUCTION,CO., INC. (MS#6) Defendants oppose the same.
FACTS
This action arises from personal injuries allegedly sustained by plaintiff, NALDY
LOPEZ while she was a pedestrian who was allegedly injured when her foot went into a
hole located in cold patch surrounding a metal plate on a sidewalk located adjacent to the
premises located at 3228 Mermaid Avenue in Brooklyn, New York, which allegedly
caused her to trip and fall on April 29, 2018. Defendants, HALLEN CONSTRUCTION and
defendant, THE NATIONAL GRID NEW YORK pursuant to a contract performed
excavation and gas main replacements on the sidewalk at the premises. Plaintiff alleges
said contract work caused and created the dangerous tripping hazard which caused the
plaintiff to trip and fall. It is alleged by the plaintiff Naldy Lopez in her testimony taken on
April 29, 2018, at 1:00 pm plaintiff fell on the sidewalk of 33rd Street between Mermaid
Avenue and Surf Avenue near the corner closest to the intersection with Mermaid Avenue
when her right foot went into a "round hole" the size of her hand. See Exhibit "K" at 16 -
23; 38. It is undisputed, on the date Plaintiff fell there was a steel plate on the sidewalk in
close proximity to where she fell.
New York Paving Hallen issued paving orders to New York Paving to perform
temporary restoration to the sidewalk at West 33rd Street between Mermaid and Surf 15
feet from the corner. New York Paving contends they performed the sidewalk restoration
on West 33rd Street between Mermaid and Surf Avenue on June 11, 2018, two months
after the alleged incident.
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However, Mr. Stone uncovered another paving order and this paving order was
issued by Hallen Construction on April 2, 2018 to the paving contractor to put down
temporary asphalt indicated (Code: CD 92 on the paying order on p. 20 of Exhibit N) at
the location of West 33rd Street between Mermaid Avenue and Surf Avenue. On the next
page for this paving order it is indicated that the temporary asphalt was put down at this
location on April 3, 2018. (Exhibit M, p. 50, lines 5-9 and Exhibit N, p. 21. The paving
Order to replace the temporary asphalt at the above-mentioned location was issued by
Hallen Construction to paving contractor was April 3, 2018. (Exhibit M, p. 42, line 6-9,
Exhibit N, p. 24) A continuation of that paving order is on page 25 of Exhibit N and which
Mr. Stone states that a final restoration of the sidewalk on West 33rd Street between
Mermaid and Surt Avenue with concrete was completed by the paving contractor on June
10, 2018. ( Exhibit M, p. 42, lines 10- 14, and Exhibit N, pgs. 24-25
New York Paving contends they are entitled to summary judgment because the
New York Paving did not owe a duty to the plaintiff to maintain or repair the subject
sidewalk; they did not create the subject condition; they did not create the hole in the
sidewalk; they did not place the steel plate on the sidewalk; they did not place the
macadam around the steel plate. Defendant New York Paving also contends that any
work they did where the alleged accident occurred was two months after the accident,
and they were not performing any work at that location at the time of the accident. The
Court notes defendant New York Paving does not admit to placing the any temporary
asphalt on the sidewalk, but New York Paving contends that even if they did place the
temporary asphalt in the sidewalk, defendants contend the temporary asphalt was not
defective at the time the work was performed and the hole formed at a later date after the
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sidewalk was excavated and the plate and macadam were placed around the plate.
ANALYSIS
It is well settled law that whenever any sidewalk, pavement, curb or gutter in any
street shall be taken up, the person or persons by whom or for whose benefit the same
is removed has a statutory obligation to restore the sidewalk. Maldonado v 527 Lincoln
Place, LLC, 173AD3d 730, 103 NYS3d 581, 2019 N.Y. App. Div, 2019 NY Slip Op 04373.
In Maldonado the Court found that it was undisputed that National Grid, through its
contractors, constructed the asphalt-filled trench on which the plaintiff allegedly fell. The
trench was part of a gas main replacement project that spanned almost the entire block
of Lincoln Place between Classon and Franklin Avenues. This is just like the present case
wherein it is undisputed defendants, THE BROOKLYN UNION GAS COMPANY,
individually and D/8/A NATIONAL GRID NEW YORK and HALLEN
CONSTRUCTION,CO., INC. through its contractors constructed the asphalt on which the
plaintiff allegedly fell. As such plaintiffs motion for partial summary judgment is hereby
granted. (MS#6)
Whether New York Paving did in fact, put down temporary blacktop in the area
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Lopez v Brooklyn Union Gas Co. 2024 NY Slip Op 30507(U) February 15, 2024 Supreme Court, Kings County Docket Number: Index No. 504566/2019 Judge: Richard Velasquez 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 York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ INDEX NO. 504566/2019 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/15/2024
At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 15th day of FEBRUARY 2024 PRESENT: HON. RICHARD VELASQUEZ Justice. -----------------------------------------------------------------------------X NALDY LOPEZ, Petitioner(s), Index No.: 504566/2019 Decision and Order Mot. Seq. No. 5 & 6 -against-
THE BROOKLYN UNION GAS COMPANY, individually and d/b/a NATIONAL GRID NEW YORK and THE HALLEN CONSTRUCTION CO. INC., and NEW YORK PAVING, INC.
Respondent(s). ----------------------------------------------------------------------X
The following papers NYSCEF Doc #'s 83 to 148 read on this motion: Papers NYSCEF DOC NO. 's Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ __ 83-107; 110-131 Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ __ 132-135; 137-139; 143 Reply Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 146; 147; 148
After having come before the Court and the Court having heard oral argument on
AUGUST 2, 2023, and after considering the forgoing documents above filed in connection
with this matter the court finds as follows:
Defendant NEW YORK PAVING, INC. moves pursuant to CPLR 3212 for summary
judgment in favor of defendant dismissing plaintiffs claims in their entirety; (b) dismissing
co-defendants' cross-claims in their entirety. (MS#S) Plaintiff opposes the same.
Plaintiff moves for an Order pursuant to CPLR § 3212, granting plaintiff partial
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summary judgment on the issue of liability against defendants, THE BROOKLYN UNION
GAS COMPANY, individually and D/B/A NATIONAL GRID NEW YORK and HALLEN
CONSTRUCTION,CO., INC. (MS#6) Defendants oppose the same.
FACTS
This action arises from personal injuries allegedly sustained by plaintiff, NALDY
LOPEZ while she was a pedestrian who was allegedly injured when her foot went into a
hole located in cold patch surrounding a metal plate on a sidewalk located adjacent to the
premises located at 3228 Mermaid Avenue in Brooklyn, New York, which allegedly
caused her to trip and fall on April 29, 2018. Defendants, HALLEN CONSTRUCTION and
defendant, THE NATIONAL GRID NEW YORK pursuant to a contract performed
excavation and gas main replacements on the sidewalk at the premises. Plaintiff alleges
said contract work caused and created the dangerous tripping hazard which caused the
plaintiff to trip and fall. It is alleged by the plaintiff Naldy Lopez in her testimony taken on
April 29, 2018, at 1:00 pm plaintiff fell on the sidewalk of 33rd Street between Mermaid
Avenue and Surf Avenue near the corner closest to the intersection with Mermaid Avenue
when her right foot went into a "round hole" the size of her hand. See Exhibit "K" at 16 -
23; 38. It is undisputed, on the date Plaintiff fell there was a steel plate on the sidewalk in
close proximity to where she fell.
New York Paving Hallen issued paving orders to New York Paving to perform
temporary restoration to the sidewalk at West 33rd Street between Mermaid and Surf 15
feet from the corner. New York Paving contends they performed the sidewalk restoration
on West 33rd Street between Mermaid and Surf Avenue on June 11, 2018, two months
after the alleged incident.
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However, Mr. Stone uncovered another paving order and this paving order was
issued by Hallen Construction on April 2, 2018 to the paving contractor to put down
temporary asphalt indicated (Code: CD 92 on the paying order on p. 20 of Exhibit N) at
the location of West 33rd Street between Mermaid Avenue and Surf Avenue. On the next
page for this paving order it is indicated that the temporary asphalt was put down at this
location on April 3, 2018. (Exhibit M, p. 50, lines 5-9 and Exhibit N, p. 21. The paving
Order to replace the temporary asphalt at the above-mentioned location was issued by
Hallen Construction to paving contractor was April 3, 2018. (Exhibit M, p. 42, line 6-9,
Exhibit N, p. 24) A continuation of that paving order is on page 25 of Exhibit N and which
Mr. Stone states that a final restoration of the sidewalk on West 33rd Street between
Mermaid and Surt Avenue with concrete was completed by the paving contractor on June
10, 2018. ( Exhibit M, p. 42, lines 10- 14, and Exhibit N, pgs. 24-25
New York Paving contends they are entitled to summary judgment because the
New York Paving did not owe a duty to the plaintiff to maintain or repair the subject
sidewalk; they did not create the subject condition; they did not create the hole in the
sidewalk; they did not place the steel plate on the sidewalk; they did not place the
macadam around the steel plate. Defendant New York Paving also contends that any
work they did where the alleged accident occurred was two months after the accident,
and they were not performing any work at that location at the time of the accident. The
Court notes defendant New York Paving does not admit to placing the any temporary
asphalt on the sidewalk, but New York Paving contends that even if they did place the
temporary asphalt in the sidewalk, defendants contend the temporary asphalt was not
defective at the time the work was performed and the hole formed at a later date after the
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sidewalk was excavated and the plate and macadam were placed around the plate.
ANALYSIS
It is well settled law that whenever any sidewalk, pavement, curb or gutter in any
street shall be taken up, the person or persons by whom or for whose benefit the same
is removed has a statutory obligation to restore the sidewalk. Maldonado v 527 Lincoln
Place, LLC, 173AD3d 730, 103 NYS3d 581, 2019 N.Y. App. Div, 2019 NY Slip Op 04373.
In Maldonado the Court found that it was undisputed that National Grid, through its
contractors, constructed the asphalt-filled trench on which the plaintiff allegedly fell. The
trench was part of a gas main replacement project that spanned almost the entire block
of Lincoln Place between Classon and Franklin Avenues. This is just like the present case
wherein it is undisputed defendants, THE BROOKLYN UNION GAS COMPANY,
individually and D/8/A NATIONAL GRID NEW YORK and HALLEN
CONSTRUCTION,CO., INC. through its contractors constructed the asphalt on which the
plaintiff allegedly fell. As such plaintiffs motion for partial summary judgment is hereby
granted. (MS#6)
Whether New York Paving did in fact, put down temporary blacktop in the area
where plaintiff fell and whether it was negligent in doing so are both issues of fact in this
action. There are two paving orders and one of the orders is for before the accident
occurred, therefore New York Paving has not overcome their burden of showing the
paving order from April was not them or that they did not do any work before the accident,
or if they did do the work that said work was not defective, pursuant to the April paving
order referenced above. As such, motion sequence number five (5) for summary
judgment is hereby denied there are issues of fact.
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Accordingly, defendant New York Paving's motion for summary judgment is hereby
denied for the reasons stated above. (MS#S) Plaintiffs motion for partial summary
judgment against defendants, THE BROOKLYN UNION GAS COMPANY, individually
and D/B/A NATIONAL GRID NEW YORK and HALLEN CONSTRUCTION.CO., INC. is
hereby granted for the reasons stated above. (MS#6).
This constitutes the Decision/Order of the court.
Dated: Brooklyn, New York FEBRUARY, 15, 2024
ijFO Hon. Richard Velasq
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