Zaciewski v. MacFarlane

Appellate Division of the Supreme Court of New York

Zaciewski v. MacFarlane

266 A.D.2d 914, 697 N.Y.S.2d 883, 1999 N.Y. App. Div. LEXIS 11701

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 1999

StatusPublished

This text of 266 A.D.2d 914 (Zaciewski v. MacFarlane) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zaciewski v. MacFarlane, 266 A.D.2d 914, 697 N.Y.S.2d 883, 1999 N.Y. App. Div. LEXIS 11701 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Plaintiff Gary D. Zaciewski was injured at his place of employment when he stepped onto a manhole cover that flipped, and he fell into the manhole. The complaint alleges that defendants were negligent in failing to replace the cover when repairing the sewer line about -two weeks before the accident. Defendants met their initial burden by establishing that, in repairing a sewer backup, their employee worked on the main line from the basement of an adjacent building but did not work in the area of the manhole cover. Plaintiffs rely on the deposition testimony of a maintenance employee that he did not see anyone working in the area of the manhole but that cleaning the main line would require removal of the manhole cover. That testimony is speculative and thus insufficient to raise a triable issue of fact whether defendants’ employee worked in the area of the manhole cover (see, Judith M. v Sisters of Charity Hosp., 249 AD2d 890, affd 93 NY2d 932; Hall v Gaston, 255 AD2d 1009; Elmer v Kratzer, 249 AD2d 899, 901, appeal dismissed 92 NY2d 921). (Appeal from Order of Supreme Court, Niagara County, [915]*915Koshian, J. — Summary Judgment.) Present — Denman, P. J., Pine, Hayes, Wisner and Balio, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Plaintiff Gary D. Zaciewski was injured at his place of employment when he stepped onto a manhole cover that flipped, and he fell into the manhole. The complaint alleges that defendants were negligent in failing to replace the cover when repairing the sewer line about -two weeks before the accident. Defendants met their initial burden by establishing that, in repairing a sewer backup, their employee worked on the main line from the basement of an adjacent building but did not work in the area of the manhole cover. Plaintiffs rely on the deposition testimony of a maintenance employee that he did not see anyone working in the area of the manhole but that cleaning the main line would require removal of the manhole cover. That testimony is speculative and thus insufficient to raise a triable issue of fact whether defendants’ employee worked in the area of the manhole cover (see, Judith M. v Sisters of Charity Hosp., 249 AD2d 890, affd 93 NY2d 932; Hall v Gaston, 255 AD2d 1009; Elmer v Kratzer, 249 AD2d 899, 901, appeal dismissed 92 NY2d 921). (Appeal from Order of Supreme Court, Niagara County, [915]*915Koshian, J. — Summary Judgment.) Present — Denman, P. J., Pine, Hayes, Wisner and Balio, JJ.

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Bluebook (online)

266 A.D.2d 914, 697 N.Y.S.2d 883, 1999 N.Y. App. Div. LEXIS 11701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zaciewski-v-macfarlane-nyappdiv-1999.

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