Doc. Nos. Notice of Motion — Exhibits and Affidavits Annexed Not efiled, paper submission Cross Motion — Exhibits and Affidavits Annexed Answering Affidavit and Exhibits, Memorandum of Law 10-12, 49-50, 91-92 Reply Affidavit 47, 48 Upon the foregoing papers, the motion listed above is decided in accordance with the annexed decision and order. Upon the foregoing papers, the motion listed above is decided in accordance with the annexed decision and order. Upon the foregoing papers, the motion of the defendant Maspeth Supply Co., LLC (hereinafter, “Maspeth”) for summary judgment pursuant to CPLR 3212 dismissing the complaint is decided as follows: Plaintiff Lillian McDaniel seeks damages for personal injuries allegedly sustained on August 21, 2014, when she tripped and fell on an alleged cracked and uneven roadway located in the west pedestrian crosswalk at East 187th Street between Webster and Marion Avenues in Bronx County. Specifically, at her deposition, plaintiff described the defect as a crack in the street approximately one inch deep. With respect to the moving defendant, Maspeth, it is alleged that Maspeth dug certain “test pits” under a contract with the New York City Department of Environmental Protection (DEP) in connection with the installation of an underground water main. Maspeth contends that it is entitled to judgment as a matter of law as none of the test pits were dug at the subject location in the west crosswalk of East 187th Street and Webster Avenue, Bronx, New York, where Plaintiff is alleged to have been injured. Separate and apart from the project undertaken by Maspeth, in 2009, defendant Step Mar Contracting Corp. (hereinafter, “Step Mar”) is alleged to have dug a trench for defendant Con Ed in the area of the crosswalk where the accident occurred. After the trench was cut and electrical line put in, Step Mar’s contract required that Step Mar backfill the trench. Codefendant Tri-Messine Construction Company (hereinafter, “Tri-Messine”), as Con Ed’s contractor, then paved the trench. In moving for summary judgment, Maspeth relies primarily on the sworn deposition testimony of Maspeth’s supervisor, Rupinderpal Nat. Nat testified that the project for installation of the water main was canceled. He also testified that Maspeth did not dig any trenches or test pits on 187th Street, and that Maspeth had no records of any work at the subject location. Nat also testified that drawing C15 indicated that test pits 280(E), 281(E) and 282(E), were dug and restored at locations in the middle of Webster Avenue, and not at the subject location. Mr. Nat specifically testified that the locations of these three (3) test pits were located directly on top of the proposed path of the force main, and that, per drawing C15, the proposed path of the force main is located on Webster Avenue near the east curb line, and not at the subject location at the west crosswalk of East 187th Street and Webster Avenue, Bronx, New York. Plaintiff opposes Maspeth’s motion on the ground that Nat testified that DEP’s drawings are not dispositive of the actual location of the test pits. In this regard, plaintiff states that field sketches and photographs taken of the actual test pit locations were not produced by Maspeth, and that these documents would definitively establish the actual locations of the test pits dug by Maspeth. Step Mar also opposes Maspeth’s motion.1 Step Mar argues that as Maspeth admitted that it performed test drilling in the subject roadway in the general vicinity of the plaintiffs trip and fall accident, issues of fact exist as to whether Maspeth worked at the location of the accident. The court’s function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). ” [T]he 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…Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers…Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 574, 508 N.Y .S.2d 923, 925-926 [1986] [citations omitted].) Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) The moving defendant established a prima facie case. The Nat deposition established prima facie that the condition of the roadway was not due to any work performed by Maspeth. The burden thus shifter to the opposing parties to raise an issue of fact. The opponents of the motion did not raise an issue of fact as to causation. Nat testified that the DEP prepared the drawings for the location of the test pits by cross-checking the anticipated location of the pipe to be installed along Webster Avenue with the location of other underground structures (i.e., Con Ed lines and pipes, Verizon wires, and other utilities), so as to ensure that the pipe could safely traverse the area. To the extent that Nat testified that the actual location could vary from the place indicated on the DEP drawings, he stated that “sometimes” the location can vary due to field conditions, “but most of the time, it happens in place.” He further testified that the actual location of the test pit could vary by 5 to 10 feet. (Deposition, 31-32.) Therefore, the test pits would necessarily follow the proposed location of the pipe, and could vary from the drawings by as much as 10 feet. The opponents of the motion have not established that any of the marked locations of the test pits was within 10 feet of the location of the accident, or that any of the marked locations was otherwise in such close proximity as to raise an issue of fact. Accordingly, it is hereby, ORDERED that Motion Sequence No. 8 is granted, and it is further ORDERED that the complaint and all cross-claims are dismissed as to defendant Maspeth. This is the Decision and Order of the Court. Dated: September 1, 2020
