Omari v. Consolidated Edison Co. of N.Y. City, Inc.

2024 NY Slip Op 33589(U)

• Court: New York Supreme Court, New York County
• Decided: October 9, 2024
• Docket: Index No. 156730/2016
• Status: Unpublished

Opinion

Omari v Consolidated Edison Co. of N.Y. City, Inc. 2024 NY Slip Op 33589(U) October 9, 2024 Supreme Court, New York County Docket Number: Index No. 156730/2016 Judge: Paul A. Goetz 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. INDEX NO. 156730/2016 NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 10/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 156730/2016 DANNY OMARI, 09/29/2023, Plaintiff, MOTION DATE 10/12/2023

-v- MOTION SEQ. NO. 004 005

CONSOLIDATED EDISON COMPANY OF NEW YORK CITY, INC., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

CONSOLIDATED EDISON COMPANY OF NEW YORK CITY, Third-Party INC. Index No. 595140/2020

Plaintiff,

-against-

THE CITY OF NEW YORK

Defendant. --------------------------------------------------------------------------------X

CONSOLIDATED EDISON COMPANY OF NEW YORK CITY, Second Third-Party INC. Index No. 595820/2021

TRI-MESSINE CONSTRUCTION CO INC.

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 154, 155, 177, 191, 192, 193, 194, 195, 196, 203 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 147, 148, 149, 150, 151, 152, 153, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 199, 200, 201, 202, 204 were read on this motion to/for JUDGMENT - SUMMARY .

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In motion sequence #4 of this trip and fall personal injury action, second-third party

defendant, Tri-Messine Construction Co Inc. (“Tri-Messine”) moves pursuant to CPLR § 3212

for summary judgment seeking an order dismissing defendant/second-third party plaintiff,

Consolidated Edison Company of New York City, Inc.’s (“ConEd”) second-third party

complaint as against them. ConEd has three causes of action as against Tri-Messine, for (1)

Indemnification; (2) Breach of Contract for a failure to procure insurance; and (3) Negligence.

In motion sequence #5, ConEd moves pursuant to CPLR § 3212 for summary judgment

seeking an order dismissing plaintiff, Danny Omari’s complaint as against them. Plaintiff has

one cause of action for negligence as against ConEd. In the alternative, ConEd seeks summary

judgment in their favor on the causes of action in the second-third party complaint as against Tri-

Messine. ConEd also sought summary judgment for the causes of action in their third-party

complaint as against the City of New York (“the City”), however, in a decision and order dated

June 13, 2024, the City Part granted the City’s motion for summary judgment (MS #6) and

dismissed the complaint as against them, before the case and the instant motions were transferred

to this Part (NYSCEF Doc No 209).

BACKGROUND

On August 24, 2015 at around 4:30 PM plaintiff was leaving a shop on Flatbush Avenue

in Brooklyn, NY (NYSCEF Doc No 181 at 13:12 – 14:13). Plaintiff testified that as he was

crossing Flatbush Avenue, he was caused to fall when he stepped on and tripped over a manhole

cover which was not leveled with the surrounding street (id. at 18:17 – 19:8). At his first

deposition, plaintiff identified the manhole cover he allegedly tripped over as being across the

street from 218 Flatbush Avenue (id. at 53:12 – 55:13; see also NYSCEF Doc No 134). The

manhole cover identified by plaintiff is marked with the ConEd logo (NYSCEF Doc No 187).

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At her deposition, ConEd employee, Yesenia Campoverde testified that upon searching

Department of Transportation records she identified two Corrective Action Requests (“CAR”),

which are issued by the City to ConEd when it identifies defective conditions which need to be

corrected involving ConEd property (NYSCEF Doc No 137 at 11:21 – 12:6). The two CARs

were issued for the same defect, broken asphalt around a ConEd owned manhole cover, and

indicated that the manhole cover in question was located at Flatbush Avenue and Bergen Street

in Brooklyn (id. at 12:18 – 13:25).

Tri-Messine is a construction company that routinely does work for ConEd (NYSCEF

Doc No 140 at 8:14 – 8:20). At his deposition, Tri-Messine President, Alfonso Messina,

identified a work ticket issued by ConEd to Tri-Messine, which required it to perform paving

work on Flatbush Avenue (id. at 12:8 – 15:23). Messina testified that the specific work ticket

required Tri-Messine to excavate portions of the street up to five feet from the curb, while the

manhole identified by plaintiff was nine feet from the curb (id. at 26:6 – 30:20).

DISCUSSION

Summary Judgment Standard

“It is well settled that ‘the proponent of a summary judgment motion must make a

prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence

to demonstrate the absence of any material issues of fact.’” (Pullman v Silverman, 28 NY3d

1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Failure to

make such showing requires denial of the motion, regardless of the sufficiency of the opposing

papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations

omitted]). “Once such a prima facie showing has been made, the burden shifts to the party

opposing the motion to produce evidentiary proof in admissible form sufficient to raise material

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issues of fact which require a trial of the action.” (Cabrera v Rodriguez, 72 AD3d 553, 553-554

[1st Dept 2010], citing Alvarez, 68 NY2d at 342).

“The court’s function on a motion for summary judgment is merely to determine if any

triable issues exist, not to determine the merits of any such issues or to assess credibility.”

(Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-511 [1st Dept 2010]

[internal citations omitted]). The evidence presented in a summary judgment motion must be

examined “in the light most favorable to the non-moving party” (Schmidt v One New York Plaza

Co., 153 AD3d 427, 428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339

[2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of

fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). If there is any doubt as to the

existence of a triable fact, the motion for summary judgment must be denied (id.).

Duty Owed to Plaintiff by ConEd (MS #4)

ConEd argues that it did not owe a duty to the plaintiff because it did not perform any

work at the location where plaintiff fell. ConEd argues that when plaintiff first served the Notice

of Claim on the City in 2015, it did not mention a manhole, and the pictures included with the

Notice of Claim do not show a manhole cover (NYSCEF Doc No 150).

“In order to prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed

by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting

therefrom” (Pasternack v Lab. Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]). 34 RCNY §

2-07(b) states, “[t]he owners of covers or gratings on a street are responsible for monitoring the

condition of the covers, gratings and concrete pads installed around such covers or gratings and

the area extending twelve inches outward from the edge of the cover, grating, or concrete pad, if

such pad is installed.”

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Here, there is a triable issue of fact as to where plaintiff’s accident occurred and, thus

whether ConEd had a duty to repair the injury causing defect. If, as plaintiff alleges in his

deposition testimony, his injuries were caused by the uneven ground surrounding the ConEd

owned manhole, then ConEd owed a duty to plaintiff, pursuant to their statutory responsibilities

arising from 34 RCNY § 2-07(b). Here, viewing the evidence in the light most favorable to the

plaintiff, ConEd has not made a prima facie showing that it did not owe a duty to plaintiff and its

motion for summary judgment must be denied.

ConEd’s claims as against Tri-Messine (MS 4&5)

ConEd argues that if it is held liable for the injuries suffered by plaintiff, then Tri-

Messine must indemnify ConEd pursuant to their contract. Tri-Messine argues that the work it

performed was not near the location where plaintiff’s injury allegedly occurred so it is not

required to indemnify ConEd.

The indemnification clause in the contract between ConEd and Tri-Messine states:

26. Indemnification. To the fullest extent allowed by law, Contractor agrees to defend, indemnify and hold harmless Con Edison and its affiliates (including, but not limited to, O&R) and their respective trustees, directors, officers, employees, agents, representatives, successors and assigns from and against all claims, damage, loss and liability, including costs and expenses, legal and otherwise, for injury to or the death of persons, or damage to property, including the property of Con Edison or O&R, and statutory or administrative fines, penalties or forfeitures resulting in whole or in part from, or connected with, the performance of the Work by Contractor any subcontractor or their respective agents, servants, employees or representatives, and including claims, loss, damage and liability arising from the partial or sole negligence of Con Edison or non- parties to the Contract (including, but not limited to, O&R). (NYSCEF Doc No 40)

Tri-Messine is only required to indemnify ConEd from liability that stems from the

performance of their work. Because, there is an issue of fact as to the exact location where

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plaintiff’s injury occurred, it cannot be determined whether the injury was connected with the

paving work performed by Tri-Messine. Therefore, both ConEd’s and Tri-Messine’s motions for

summary judgment must be denied.

Accordingly it is,

ORDERED that ConEd’s motion for summary judgment (MS# 5) is denied; and it is

further

ORDERED that Tri-Messine’s motion for summary judgment (MS #4) is denied.

10/9/2024 DATE PAUL A. GOETZ, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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