The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 were read on this motion to DISMISS. DECISION + ORDER ON MOTION Upon the foregoing documents, defendant Danella Construction of NY’s motion to dismiss this action is denied and plaintiff’s cross-motion to consolidate this action with Mark Haut v. Consolidated Edison Company of New York, Inc. et al, pending in New York State Supreme Court, New York County under index number 153071/2021, is granted for the reasons set forth below. In his complaint, plaintiff alleges that on August 30, 2020, he tripped and fell on the sidewalk abutting 240 East 41st Street and 222 East 41st Street, New York, NY due to an “irregular, uneven hazardous condition,” sustaining injuries. Plaintiff asserts a negligence claim against defendants on the grounds that they created this dangerous conditions while performing work at the subject location. Defendant Danella Construction of NY (“Danella”) now moves, pursuant to CPLR 3211(a)(1) and (7), to dismiss the complaint. In support of its motion, Danella submits an affidavit from Charles Agro, the superintendent of its Steam Operations department, in which he attests that: Danella contracted with Consolidated Edison Company of New York, Inc. (“Con Edison”), to perform a steam services upgrade at the premises located at 222 E 41 Street, New York, New York (“Project”) … Danella’s work at the Project included cutting of the pavement and asphalt restoration at the sidewalk located at 222 E 41 Street, New York, New York according to the permit indicated in the Con Edison’s Report of Street and/or Sidewalk Openings — Street segment attached hereto as Exhibit D. The permit was issued only for the street segment situated at 222 E 41st Street, New York, New York and Danella performed work only at the sidewalk in front of the building at 222 E 41st Street, New York, New York Danella’s work at the Project lasted between July 22, 2017 and October 15, 2017, 3 years before the Plaintiff’s alleged accident. I enclose as Exhibit E Con Edison’s Worksheet Items and the Account Distribution Report according to which Con Edison approved the final cost and the payment of the services performed by Danella at the Project … I have also reviewed the Google Map photos taken in August 2017 depicting Danella’s construction site at the project which was submitted in Index no.: 153071/2021…Plaintiff’s half flag is located on the sidewalk of the neighboring building at 240 E 41st Street New York, New York. Danella did not open the sidewalk corresponding to Plaintiff’s half flag, nor did Danella perform asphalt restoration on the sidewalk of the building located at 240 E 41st Street New York, New York. Danella was not instructed by Con Edison to perform any work at 240 E 41st Street, New York, New York, and Danella was not presented with a permit to cut and restore the sidewalk at 240 E 41st Street, New York, New York. Also, Danella was not contracted to perform any work or asphalt restoration at 240 E 41st Street, New York, New York and Danella not perform work at the sidewalk at 240 E 41st Street, New York, New York, where Plaintiff claims to have been injured. Furthermore, Danella’s work at the Project was completed 3 years before Plaintiff’s accident and Danella’s work could not have and did not cause any changes or any aggravation of the condition of the flag that Plaintiff’s claims to have caused his accident. I conducted a Google Maps search regarding the incident location where the Plaintiff allegedly was injured before and after Danella completed the pavement on the sidewalk belonging to the building located at 240 E 41st Street, New York, New York. The search reveled that Plaintiff’s alleged defective and depressed half flag corresponding to the building at 240 E 41st Street, New York, New York, existed before and after Danella’s completion of the project at the premises 222 E 41 Street, New York, New York in October 2017 … During the work at the project in 2017, Danella did not perform any work at the flag where Plaintiff allegedly was injured. Notably, Danella was not involved in any subsequent job for steam repairs or pavement work at 222 E 41st Street or 240 E 41st Street, New York, New York after the completion of the Project in the fall of 2017 — 3 years before Plaintiff’s alleged incident. Also, Danella did not hire any subcontractors for pavement of the sidewalk at 222 E 41st Street or 240 E 41st Street, New York, New York and did not set up any work site on these premises after the Project’s completion in 2017. Additionally, Danella does not own, nor did it undertake any duty to maintain, direct, control or manage the sidewalk at the premises where Plaintiff was allegedly caused to sustain injuries. (NYSCEF Doc. No. 16 [Agro Aff. at
