The following papers were read on the above referenced motions. Defendant moves (Seq. #1) for an order pursuant to CPLR 3212 granting summary judgment and dismissing all claims against it. Plaintiffs move (Seq. #2) for an order pursuant to CPLR 3212 granting partial summary judgment on the issue of liability and for such other and further relief as this Court deems just and proper. PAPERS NUMBERED Notice of Motion (Seq. #1) / Affirmation in Support / Exhibits / Memorandum of Law / No Fee Authorization 1-14 Affirmation in Opposition / Response to Statement of Material Facts / Affidavit in Opposition / Expert Affidavit 15-18 Notion of Motion (Seq. #2) / Ciccone Affirmation in Support / Expert Affidavit /Plaintiff’s Affidavit / Statement of Material Facts / Exhibits / Memorandum of Law 19-41 Hogan Felix Affirmation in Opposition and in Reply / Exhibit / Memorandum in Opposition and in Support / No Fee Authorization 42-45 Stipulation of Adjournment 46 Reply Affirmation 47 DECISION AND ORDER Plaintiff John Bocek alleges that on May 14, 2021 he sustained an electric shock at Kensico Dam Plaza as he leaned on a distribution panel to remove a pebble from his shoe and his right foot made contact with the ground (Ciccone Affirmation in Support, p. 1). Plaintiffs allege that the County of Westchester was negligent in its installation, repair, maintenance and ownership of the electrical panel, junction boxes, and the wiring on the distribution panel. It is alleged that the County failed to properly install the electrical panel, junction boxes and wiring so that they did not pose a danger to persons using the park, failed to make the area safe for pedestrian traffic, failed to properly warn the public that a dangerous condition existed, and violated applicable building and electrical codes. Mr. Bocek’s spouse, Tonya Bocek, asserts a derivative claim (Defendant’s Exhibit E, p. 2-3). A note of issue was filed on April 17, 2023 (NYSCEF doc #11). Plaintiffs allege that the County failed to use and maintain the distribution panel in a safe manner (Ciccone Affirmation, p. 8). Plaintiffs argue that the distribution panel was on at the time of the alleged incident. Plaintiffs contend that the white wiring exiting the distribution panel was intended for temporary use, it existed at the site for longer than allowed by the National Electric Code, and it was insufficiently buried at the time of the accident.1 Plaintiffs argue that the white wiring was present at the accident site since at least January 2021. Plaintiffs argue that the County created the dangerous condition, allowed the condition to exist for an extended period of time, and the County is liable for plaintiffs’ injuries (Ciccone Affirmation, p. 1-2, 7). The County argues that there is no evidence that a dangerous or defective condition existed at Kensico Dam Plaza or that the County had actual or constructive notice of such condition (Hogan Felix Affirmation, p. 2). “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 a 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 this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The evidence must be viewed in a light most favorable to the nonmoving party and it should be given the benefit of all favorable inferences (Gonzalez v. Metropolitan Life Ins. Co., 269 AD2d 495 [2d Dept 2000]). The Court “must accept as true the evidence presented by the nonmoving party, and the motion must be denied if there is even arguably any doubt as to the existence of a triable issue” (Baker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994]). Summary judgment is a drastic remedy and it should only be employed when there is no doubt as to the absence of triable issues (Sucre v. Consolidated Edison Co. of N.Y., Inc., 184 AD3d 712 [2d Dept 2020]). The court’s function on a motion for summary judgment is issue finding rather than issue determination (T. Mina Supply, Inc. v. Clemente Bros. Contracting Corp., 194 AD3d 879 [2d Dept 2021]). It is not the Court’s function to assess credibility, make findings of fact, or engage in the weighing of evidence (T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 194 AD3d 879 [2d Dept 2021]; Scott v. Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]; Rawls v. Simon, 157 AD3d 418 [1st Dept 2018]). “A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Ruiz v. Griffin, 71 AD3d 1112, 1115 [2d Dept 2020][internal quotations and citation omitted]; see also Bykov v. Brody, 150 AD3d 808 [2d Dept 2017]; Civil Serv. Empls. Assn. v. County of Nassau, 144 AD3d 1077 [2d Dept 2016]). A property owner owes a duty to exercise reasonable care to keep the premises safe “in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Hadidi v. City of New York, 181 AD3d 795, 795 [2d Dept 2020], quoting Salomon v. Prainito, 52 AD3d 803, 804-805 [2d Dept 2008]; Basso v. Miller, 40 NY2d 233 [1976]). To impose liability in a premises liability action there must be evidence that a dangerous or defective condition existed, and that defendant either created the condition or had actual or constructive notice of it (Kruger v. Donzelli Realty Corp., 111 AD3d 897 [2d Dept 2013]). On a motion for summary judgment by a defendant property owner, defendant has the initial burden of showing prima facie that it neither created the hazardous condition nor had actual or constructive notice of its existence (id.; Friedman v. 1753 Realty Co., 117 AD3d 781 [2d Dept 2014]). A violation of a specific code constitutes only some evidence of negligence. Plaintiff must also establish that the violation was a proximate cause of his injuries (Scala v. Scala, 31 AD3d 423 [2d Dept 2006]). However, “the absence of a violation of a specific code or ordinance is not dispositive of a plaintiff’s allegations based on common-law negligence principles” (Karel v. Pizzorusso, 215 AD3d 738, 739 [2d Dept 2023], quoting Romero v. Waterfront N.Y., 168 AD3d 1012, 1013 [2d Dept 2019]). In support of the motions, the parties each submit, inter alia, marked photographs, plaintiff’s 50-h transcript, party deposition transcripts, and an expert affidavit. Plaintiff John Bocek testified that as he was walking a rock or pebble was stuck in his sandal and he stopped to get it out. He leaned against the distribution panel and when he put his right foot back down on the ground he was shocked for approximately three to five seconds (Plaintiffs’ Exhibit 10, p. 27, 31, 34). Mr. Bocek testified that there was a white wire coming out of the panel and that is what he believes his foot hit (id. at 42). He then testified that he was not one hundred percent sure whether his foot came in contact with the wire, but his foot was in the dirt area where the wire went into the ground (id. at 44). The County produced Francesco Fiore for a deposition, who testified that in May 2021 he was the assistant director in charge of all of the electrical apparatuses for the Westchester County parks (Plaintiffs’ Exhibit 12, p. 11). Richard Romero was the licensed electrician responsible for electrical maintenance at Kensico Dam Plaza at that time (id. at 13). Mr. Fiore testified that electrical equipment was checked when it was installed and when there were events (id. at 20, 36). Mr. Fiore testified as to a photo of the distribution panel taken soon after the alleged incident, stating the panel box contains circuit breakers, and the disconnect box serves to disconnect the panel box, which would kill the power for the panel. He testified that the raised lever on the disconnect box indicates that the power was on (id. at 33). Mr. Fiore testified that although the lever was raised in the on position, there was no voltage to the circuit breaker because there was no event or activity at that time (id. at 74-75). He testified that the installation as it existed in May of 2021 was compliant with the National Electric Code (id. at 82). Defendant produced Richard Romero, who testified that he was employed by the County as a master electrician (Plaintiffs’ Exhibit 13, p. 9). Mr. Romero testified that there is one switch in the electrical closet that operates the entire array out in the field (id. at 35). The morning after the alleged incident, he went to the electrical closet and determined that the power was off, then he checked all four distribution panels (id. at 33-34, 54). Upon inspection, Mr. Romero and his team determined that everything looked normal (id. at 36). Mr. Romero testified that the disconnect switch enables the electrician to kill the power out of that particular site, so he does not have to keep walking back and forth to the electrical closet. As to the photo taken soon after the incident, he testified that the disconnect switch was in the on position (id. at 49-50). He testified they know the distribution panels are de-energized because they are fed from the electrical closet, and they do not usually turn off the switch on the distribution panels (id. at 45). Mr. Romero testified that they can leave the white wire in place because they de-energize everything (id. at 55-56). He testified that at the time of his inspection there was zero voltage to the disconnect switch and the wiring insulation looked intact (id. at 54, 56). It is well settled that where conflicting affidavits and other contradictory evidence are submitted, summary judgment is not appropriate. Here, the parties’ conflicting deposition testimony regarding the facts surrounding the accident raises a triable issue of fact as to whether the County created a dangerous condition which caused plaintiffs’ alleged injuries (see Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005]). Insofar as plaintiffs allege that the County violated applicable building and electrical codes concerning the installation of electrical panel and wiring at a public park, the parties’ conflicting expert affidavits raise triable issues of fact as to whether the County violated National Electric Code section 300 and whether this was a proximate cause of plaintiff’s alleged injury. In support of plaintiffs’ motion, plaintiffs submit an expert affidavit by James Orosz, an electrical engineer who conducted a site inspection on September 22, 2022 (Orosz Affidavit, p. 4). Mr. Orosz opines that the exposed white wire is a violation of the 2017 edition of the National Electrical Code, which requires that the wire be protected inside a conduit or enclosure. Mr. Orosz states that National Electrical Code section 300.50 requires that conductors emerging from the ground shall be enclosed in listed raceways. He states that this section also requires a wire at the subject voltage to be buried at least eighteen inches below the surface depending on the covering and the expected traffic over the location. Mr. Orosz states that laying the wire in the expansion cracks of concrete is not compliance with the National Electrical Code and produces a hazardous condition (id. at 8). Mr. Orosz opines that the County created a dangerous condition by installing electrical equipment that was not in compliance with the National Electrical Code. He opines that plaintiff was electrically shocked on May 14, 2021 when he came in contact with the electrical equipment owned and operated by the County. Mr. Orosz opines that the County’s failure to comply with National Electrical Code section 300 was a cause of the incident (id. at 9). Defendant submits an expert affidavit by Steve Fabian, an electrical engineer, who conducted an inspection of the electrical closet and distribution panel at Kensico Dam Plaza on February 8, 2023. He opines that at the time of his inspection the distribution panel adhered to sound engineering practices. It was in compliance with the applicable product safety standards and installation code (Defendant’s Exhibit J, p. 3). In response to plaintiffs’ expert’s opinion that the white wire violated National Electrical Code section 300.50, Mr. Fabian notes that the white wire was not examined by either expert, as it was removed prior to the filing of the compliant (Defendant’s Exhibit K, p. 2). Furthermore, Mr. Fabian states that in order to receive an electric shock, there must be a supply and a return path for the line, allowing for a return current path and completing a circuit. Mr. Fabian states that the temporary white wiring was connected to a GFCI circuit, which would not allow a stray current that could create a shock. He explains that in a GFCI circuit, if the balance of the current going in is different than the current coming back, the GFCI circuit will trip. This guarantees that if current on the supply line were to travel anywhere else, meaning not down the white wire, the GFCI circuit would recognize it and trip. Mr. Fabian opines that in this scenario, it is not possible that the current could have gone anywhere else. The expert concludes that it is highly improbable that there was a break in the supply line wire, a break in the cable jacket insulation, and a failure in the GFCI circuit at the same time (id. at 4). Mr. Fabian’s affidavit is sufficient to raise triable issues of fact as to whether the subject wiring violated National Electrical Code section 300, and whether such violation was a proximate cause of the alleged injury. Summary judgment is not appropriate where the parties present conflicting expert opinions, as such credibility issues are properly left to the trier of fact for resolution (see Sucre, 184 AD3d at 712). Plaintiffs allege general violations of state, county and local ordinances, building codes and electrical codes, but fail in opposition to defendant’s motion to address any alleged violation other than an alleged violation of National Electric Code section 300 (Plaintiffs’ Exhibit 41, p. 2). A party’s failure to oppose any part of a summary judgment motion on which the movant has met its prima facie burden entitles the movant to judgment as a matter of law as to the unopposed branch of the motion (Genovese v. Gambino, 309 AD2d 832 [2d Dept 2003]). As to plaintiffs’ claim that the County violated codes and ordinances, this portion of the complaint is dismissed except as to the alleged violation of National Electric Code section 300 (CPLR 3212[g]). Accordingly, it is hereby ORDERED that plaintiffs’ motion (Seq. #2) for summary judgment is denied; and it is further ORDERED that defendant’s motion (Seq. #1) for partial summary judgment on the issue of liability is granted to the limited extent that the portion of plaintiffs’ complaint based on the alleged violation of codes and ordinances is dismissed, except as to the alleged violation of National Electric Code section 300, and defendant’s motion is otherwise denied; and it is further ORDERED that all parties are directed to appear in person for a Settlement Conference in Courtroom 1601 on December 7, 2023 at 10 a.m.; and it is further ORDERED that within ten (10) days of the date hereof, defendant shall serve a copy of this Decision and Order with notice of entry upon all parties, and file proof of service on NYSCEF. The foregoing constitutes the Decision and Order of the Court. Dated: November 3, 2023
