

Camacho v City of New York (2016 NY Slip Op 00102)





Camacho v City of New York


2016 NY Slip Op 00102


Decided on January 12, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 12, 2016

Renwick, J.P., Andrias, Saxe, Moskowitz, JJ.


16601 302414/09 83721/10 84096/11

[*1]Elba Camacho, Plaintiff-Appellant,
vThe City of New York, et al., Defendants, Con Edison, Inc., et al., Defendants-Respondents. 
Consolidated Edison Company of New York, Inc., Third-Party Plaintiff-Respondent, 
Hallen Construction Co., Inc., Third-Party Defendant-Respondent. 
Hallen Construction Company, Inc., etc., Fourth-Party Plaintiff-Respondent, 
New York Paving, Inc., Fourth-Party Defendant-Respondent.


Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.
Office of David M. Santoro, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, Inc., sued herein as Con Edison, Inc., respondent.
Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for Hallen Construction Co., Inc., respondent.
Pillinger, Miller, Tarallo, LLP, Elmsford (Michael Neri of counsel), for New York Paving, Inc., respondent.

[*2]

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 13, 2014, which, to the extent appealed from as limited by the briefs, granted the motions of defendants Hallen Construction Company, Inc. and Consolidated Edison Company of New York, Inc., sued herein as Con Edison, Inc., for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
By demonstrating that the area where plaintiff fell was outside the area where they and their contractor, fourth-party defendant New York Paving, Inc., performed work, defendants Con Edison and Hallen (defendants) established prima facie that they did not cause or create the defective condition in the sidewalk (see Levine v City of New York, 101 AD3d 419 [1st Dept 2012]; Jones v Consolidated Edison Co. of N.Y., Inc., 95 AD3d 659 [1st Dept 2012]). In opposition, plaintiff submitted a speculative and conclusory affidavit by a purported licensed engineer. The engineer attributed plaintiff's fall on the raised sidewalk flag to insufficiently filled expansion joints running from the sidewalk flags where defendants performed work to the raised flag 5½ feet away, but failed to explain how water in the joints raised the flag 5½ feet away but not other flags that were closer to defendants' work and actually abutted the joints. The engineer also failed to explain why he believed that the flag was pushed up by water under it, as opposed to the roots of a nearby tree (see Freimor v City of New York, 44 AD3d 514, 515 [1st Dept 2007]; Yass v Deepdale Gardens, 187 AD2d 506 [2d Dept 1992]). In any event, plaintiffs had no duty to fill the expansion joints around the subject flag, on which they did not work and which they had not disturbed (see Balsam v Delma Eng'g Corp., 139 AD2d 292, 296-297 [1st Dept 1988], lv dismissed in part, denied in part 73 NY2d 783 [1988]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 12, 2016
CLERK


