DECISION & ORDER In motion sequence number 005, defendant Consolidated Edison Company of New York, Inc. (Con Edison) moves for summary judgment, seeking to dismiss the amended verified complaint of plaintiff Fortino Pelaez-Pineda (Plaintiff) as asserted against it. Con Edison also seeks dismissal of “all cross-claims” asserted against it by its co-defendant, the City of New York (City and, together with Con Edison, Defendants). Plaintiff opposes, but City did not respond to Con Edison’s motion. I. Background Plaintiff, a Bronx County resident, alleges that, on October 28, 2013, at about 1:40 in the afternoon, he was physically injured while bicycling northbound on Tenth Avenue in Manhattan, in the northeastern quadrant of its intersection with West 37th Street. (See amended verified complaint, sworn to April 27, 2016 [NYSCEF Doc No. 79], 3 [describing location at issue as Tenth Avenue's "northeast intersection with West 37th Street"]; see also Plaintiffs verified bill of particulars, dated January 31, 2017 [NYSCEF Doc No. 81]). Plaintiff avers that he fell “violently” to the ground at that location when he rode onto a defective area of the roadway’s surface (amended complaint
24-25) and that the defect was caused by Defendants’ negligent maintenance (id. 23). City answered the amended complaint, generally denied Plaintiff’s allegations, and cross-claimed for contribution and indemnification against Con Edison (see answer to amended complaint [NYSCEF Doc No. 24]). In turn, Con Edison answered the amended complaint, generally denied plaintiff’s allegations, asserted in defense of the cross-complaint that it acted solely under franchise or license of “proper municipal authorities,” and cross-claimed for contribution and indemnification against City (verified answer to an amended complaint with cross complaint [NYSCEF Doc No. 25]). Con Edison e-filed its motion sub judice on November 11, 2021 (see amended notice of motion [NYSCEF Doc No. 103]), seeking summary judgment, dismissing the amended complaint and the cross claims asserted by City against it. Con Edison asserts it is entitled to summary judgment because undisputed evidence establishes that it did not cause or create the condition that Plaintiff claims caused his injuries. Con Edison further asserts that it did not perform any work at the accident location identified by Plaintiff in the two years before his alleged injury, that it did not own any facilities or perform any work at the alleged accident location, and that it did not receive any actual or constructive notice of any defective or dangerous condition there. In opposition, Plaintiff denies that Con Edison can demonstrate, based on documentary and testimonial evidence, that it did not cause or create the roadway’s defect, or that the defect did not arise from work that Con Edison performed (affirmation of Andrew G. Sfouggatakis, Esq., executed December 29, 2021 [Sfouggatakis affirmation] [NYSCEF Doc No. 24], 33). Plaintiff’s opposition is premised on the contention that material issues of fact remain with respect to whether Con Edison performed work at the site of the alleged road surface defect prior to his accident. II. Discussion “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 eliminate any material issues of fact from the case. 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]). To prevail, the movants must produce evidentiary proof in admissible form sufficient to warrant granting summary judgment in their favor (GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]). Once the movants have made their showing, the burden shifts to the opposing party, to submit proof in admissible form sufficient to show a question of fact exists, requiring trial (Kosson v. Algaze, 84 NY2d 1019, 1020 [1995]). In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant (Prine v. Santee, 21 NY3d 923, 925 [2013]). Party affidavits and other proof must be examined carefully “because summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue” (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978] [citation and internal quotation marks omitted]). Still, “only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment” (id.). “To defeat this motion, plaintiff [has] to establish the existence of ‘facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred’” (Flores v. City of New York, 29 AD3d 356, 358 [1st Dept 2006], quoting Ingersoll v. Liberty Bank of Buffalo, 278 NY 1, 7 [1938]). “However, such proof must permit a finding of proximate cause ‘based not upon speculation, but upon logical inferences drawn from the evidence’” (id., quoting Schneider v. Kings Highway Hosp. Ctr., 67 NY2d 743, 744 [1986]). At a 50-H hearing held on March 25, 2014, Plaintiff testified that although he did not see any defect in the roadway prior to his accident and did not return to examine the location afterward, he believes that his front wheel struck a pothole in the roadway, causing him to fall from his bicycle and sustain injury (Nguyen affirmation, exhibit D [Plaintiff's March 25, 2014 50-H hearing transcript] [NYSCEF Doc No. 83], at 32:3-18). At his later deposition, however, Plaintiff asserted that he returned to the intersection “some months” after the accident and found that the alleged defective condition had been “fixed” (id., exhibit E [Plaintiff's December 5, 2017 deposition transcript] [NYSCEF Doc No. 83], at 43:18-25). Plaintiff also stated that, at the time immediately preceding his injury, he was bicycling northbound, “toward the extreme right” side of Tenth Avenue (id. 32:3-18), and that there were no cars in the parking lane where his injury allegedly occurred (id. 32:7-9). Jim Liriano, a research assistant and record searcher for the New York City Department of Transportation (DOT), in the transcript of his July 10, 2019 deposition (Liriano tr) (Nguyen affirmation, exhibit F [NYSCEF Doc No. 84]), testified that DOT performed two record searches in order to produce documents relevant to this action: one for the intersection of Tenth Avenue and 37th Street and one for the block known as Tenth Avenue between West 37th and West 38th Street, each for the two year period spanning October 28, 2011 and October 28, 2013 (see Nguyen affirmation,
