The following e-filed documents, listed by NYSCEF document number (Motion 003) 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 143, 146, 147, 151, 152, 153, 159, 162, 165 were read on this motion to/for DISMISSAL. The following e-filed documents, listed by NYSCEF document number (Motion 004) 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 144, 154, 155, 156, 157, 158, 160, 163, 166 were read on this motion for SUMMARY JUDGMENT (AFTER JOINDER). The following e-filed documents, listed by NYSCEF document number (Motion 005) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 145, 148, 149, 150, 161, 164, 167 were read on this motion for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, defendant Consolidated Edison of New York, Inc. (“Con Edison”) moves for summary judgment (Motion Seq. 003), defendants Trocom Construction Corp. and Trocom Construction of New York LLC Trocom Construction Corp. (“Trocom Corp”), Trocom Construction of New York LLC (“Trocom NY”) (together, “Trocom”) move for summary judgment (Motion Seq. 004), and defendant John P. Picone, Inc. (“Picone”) moves for summary judgment (Motion Seq. 005). Plaintiff Heidi Burger (“Plaintiff”) opposes the motions, which are consolidated for decision. Upon review of the motion papers and procedural history, Motion Seq. 003 and 005 are granted, and Motion Seq. 004 is granted in part. BACKGROUND In this personal injury action, Plaintiff seeks to recover damages for injuries she sustained on April 18, 2015, when she was purportedly “caused to fall due to negligent due to negligent repairs and an unsafe pathway on a portion of the East River Bikeway/Greenway,” specifically where the path intersects with South Street and Pike Slip. Plaintiff testified in a 50-h hearing that she was riding north a bicycle on the bike path (NYSCEF Doc No. 125, 50-h tr at 11, In 3-4) on a route she had used for five or six years prior, but had not traveled on for several months prior to the incident (id. at 31, In 7-8, 18-20). In the 50-h testimony, Plaintiff indicated on a photograph where the incident occurred (id. at 20). The photograph depicts a bike path marked by two solid parallel lines with a bicycle symbol painted between them (NYSCEF Doc No. 109). The bike path curves to the left under Franklin D. Roosevelt East River Drive (“FDR Drive”) towards the intersection of Pike Slip and South Street (id.). Plaintiff marked the path with an arrow pointing to the left to show her direction of travel along the path (id.). Additional photographs from Plaintiff’s deposition depict how the marked bike path curves to the left, then curves right near the west side of FDR Drive before continuing north (NYSCEF Doc No. 111). As the path goes from the area under FDR north onto South Street, a temporary asphalt ramp is constructed on the bike path over the curb (id.). The ramp extends outside the path to the right and the left such that the entire width of the path goes over the ramp as it transitions over the curb (id.). There are three signs depicted in photographs annexed to the deposition (NYSCEF Doc No. 111). The first sign is located along the straight portion of the path (id.). The sign consists of a green and white top portion that has a picture of a bicycle, and arrow pointing straight and the text “WILLIAMSBURG BRIDGE” (id.). The sign also has a yellow and black bottom portion with the text “USE MONTGOMERY STREET” (id.). As the path begins to curve to the left, there is a second yellow and black sign with an arrow that points to the left that says “BIKEPATH” (id.). Finally, as the path turns right towards the west side of the FDR Drive, there is a third yellow and black sign with an arrow that points to the right that also says “BIKEPATH” (id.). Plaintiff testified that as she continued biking along the path traveling at an unknown rate of speed, she reached a point where the lines of the bike path made a left turn underneath the FDR Drive and heading towards the intersection of Pike Slip and South Street (50-h testimony at 19-20). Plaintiff testified that she was confused by the detour signs marking the path as she approached the curve to the left, which she testified were “pointing to each other” (50-h tr at 27; NYSCEF Doc No. 110, deposition tr at 44, 71). Plaintiff did not stop her bicycle as she approached the area (deposition tr at 44, In 18-25). As she veered to the left, she biked out of the bike path and over the curb to the north of the bike path, which she marked with a circle on one of the photographs (deposition tr at 50, NYSCEF Doc No. 111). Plaintiff testified that she went “airborne” after biking over the curb, which caused her to sustain serious injuries (id. at 50, 71). On June 3, 2016, Plaintiff commenced this action by filing a summons and complaint against defendants the City of New York (the “City”) and the New York City Department of Transportation (the “DOT”). On April 17, 2018, Plaintiff commenced a second action by filing a summons and complaint against defendants Trocom, John P. Picone, Inc., Consolidated Edison of New York, Inc., and the New York City Economic Development Corporation (the “EDC”), under New York County Index Number 153527/2018. Picone filed an answer on May 17, 2018. On May 25, 2018, Trocom filed an answer with cross-claims against Con Edison and the EDC. Con Edison filed an answer with cross-claims against Trocom on May 30, 2018. By order dated November 29, 2019, the two actions were consolidated under Index number 154722/2016. Plaintiff filed the note of issue with jury request on June 29, 2023. By Motion Seq. 003, Con Edison moves pursuant to CPLR §3212 for summary judgment to dismiss the complaint and all cross-claims as against it. By Motion Seq. 004, Trocom moves to pursuant to CPLR §3212 for summary judgment to dismiss the complaint and all cross-claims as against them. Finally, by Motion Seq. 005, Picone moves pursuant to CPLR §3212 for summary judgment to dismiss the complaint and all cross-claims as against it. Plaintiff opposes all three motions. The City also opposes Motion Seq. 004. DISCUSSION A motion for summary judgment “shall be granted if, upon all the papers and proofs submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party” (CPLR §3212[b]). “The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (Dallas-Stephenson v. Waisman, 39 AD3d 303, 306 [1st Dept 2007]). The movant’s burden is “heavy,” and “on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2013] [internal quotation marks and citation omitted]). Upon proffer of evidence establishing a prima facie case by the movant, the party opposing a motion for summary judgment bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “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 2010][internal quotation marks and citation omitted]). To maintain a cause of action in negligence, “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’s Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]). “The question of whether a defendant owes a legally recognized duty of care to a plaintiff is the threshold question in any negligence action” (On v. BKO Exp. LLC, 148 AD3d 50, 53 [1st Dept 2017]). “In the absence of a duty, as a matter of law, there can be no liability” (Pasternack gs, 27 NY3d at 825). “Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises” (Balsam v. Delma Eng’g Corp., 139 AD2d 292, 296 [1st Dept 1988]). “The existence of one or more of these elements is sufficient to give rise to a duty of care” (id.). “Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm” (Lauer v. City of New York, 95 NY2d 95, 100 [2000]). “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]). Nevertheless, a contractor may have a duty where (1) the contractor creates or exacerbates a harmful condition is subject to tort liability for failing to exercise due care in the execution of its contract, (2) where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant’s continuing performance of a contractual obligation, or (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (Church ex rel. Smith v. Callanan Indus., Inc., 99 NY2d 104, 111 [2002]). A. Motion Seq. 003 In the first motion, Con Edison moves pursuant to CPLR §3212 for summary judgment to dismiss the verified complaint and all cross-claims against it on the grounds that Con Edison did not own, occupy, control, or maintain the bike path, did not cause or create the alleged defective condition, did not owe a duty of care to any party, and did not have actual or constructive notice of any alleged defect. In support of its motion, Con Edison submits, inter alia, Plaintiff’s 50-h testimony and deposition, along with annexed photographs, deposition of Anthony Santoro (“Mr. Santoro”), work works as a consultant for Trocom and previously served as Vice President of Trocom, and the deposition and affidavit of Jefferson Wu (“Mr. Wu”), a Record Searcher in the Legal Services Department at Con Edison, with exhibits thereto. In his affidavit and deposition, Mr. Wu attests that he performed a search of records for work performed by Con Edison at the intersection of South Street and Pike Slip in Manhattan for the time period from April 18, 2013 to April 18, 2015, two years prior to the incident at issue (NYSCEF Doc. No. 115, Wu affidavit 4). The search was for records relating to any DOT permits, opening tickets, paving orders, corrective action requests, notice of violations, and emergency tickets (id.) The records search indicated that Con Edison had permits and did work in the vicinity of the incident, but no work was performed on the East River Promenade/FDR Drive underpass and none of the work was done on the bike path (id.
