Paru v. City of New York

Paru v City of New York 2025 NY Slip Op 30068(U) January 8, 2025 Supreme Court, New York County Docket Number: Index No. 152079/2016 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. J. MACHELLE SWEETING PART 62 Justice ---------------------------------------------------------------------------------X INDEX NO. 152079/2016 BARBARA PARU, 02/09/2024 Plaintiff, MOTION DATE 05/17/2024

-v- 004 005 006 MOTION SEQ. NO. 007 THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and CONSOLIDATED EDISON, INC., DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Third-Party s/h/a CONSOLIDATED EDISON, INC., Index No. 595896/2017

Third-Party Plaintiff,

-against-

THE CITY OF NEW YORK,

Third-Party Defendant. --------------------------------------------------------------------------------X

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Second Third-Party s/h/a CONSOLIDATED EDISON, INC., Index No. 595260/2019

Second Third-Party Plaintiff,

-against-

WJL EQUITIES, INC., and NICO ASPHALT PAVING, INC.,

Second Third-Party Defendants. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 156, 172, 174, 176, 177, 179, 183, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 234, 238 were read on this motion to/for DISMISS .

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WJL partially supports and partially opposes Nico’s motion (NYSCEF Doc. No. 154). Its

arguments are essentially the same as those Nico asserts in opposition to its own motion for

summary judgment. That is, WJL argues (1) summary judgment is proper dismissing Con Ed,

Nico, and WJL from the action, but (2) alternatively, in the event that, the court finds an issue of

fact as to negligence, there are issues of fact as to whether Nico caused or created the alleged

defect. In addition, as it argued in its own motion for summary judgment, WJL stresses that Nico

performed its work after WJL completed its own. Con Ed’s opposition reiterates the arguments it

set forth in partial support of and partial opposition to WJL’s motion (see generally NYSCEF Doc.

No. 173).

Motion Sequence No. 006 [Third Party Defendant The City of New York (the “City’s) Motion for Summary Judgement]

In support of its motion, the City points to plaintiff’s 50-h hearing and deposition testimony

regarding the precise site of her accident. First, the City claims that it had no prior written notice

of the alleged condition. Second, the City contends that it neither caused nor created the alleged

condition and that Administrative Code § 7-201 (c) (2) mandates dismissal as against it.

As for the first point, the City acknowledges that its two-year search for the roadway at

West 57th Street between 5th and 6th Avenues and for the roadway at the intersection of 57th

Street and 5th Avenue, revealed a number of records. However, it argues that none of these records

provided prior written notice (NYSCEF Doc. No. 135, ¶ 24, citing, inter alia, Meltzer v City of

New York, 156 AD2d 124, 124 [1st Dept 1989] [finding that street opening or work permits did

not provide requisite notice to the City]). The City contends that the inspections and complaints

did not provide it with prior written notice of the alleged problem because they were unrelated to

the alleged defect at issue here, or the problem was remediated and resulted in a passing condition

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or the resulting CAR or Notice of Violation (“NOV”) was not related to the defect that allegedly

caused plaintiff’s injuries.

The City contends that the ten complaints the DOT search found did not provide the City

with notice, because four of the complaints were about a pothole at the northwest corner of West

57th Street and 5th Avenue, but this problem was corrected prior to the accident date. The City

argues that the two CARs, concerning a sewer cover defect and a protruding manhole cover, relate

to conditions that were “different in kind” from the defect plaintiff alleges here (NYSCEF Doc.

No. 135, ¶¶ 41, 42). The remaining complaints generated maintenance and repair records which,

in turn, resulted in repairs to the defect or the discovery that there was no defect.

Next, the City argues that the maintenance and repair records and the gangsheets did not

provide prior written notice, because reports from January 2023 and August 2014 describe

conditions that were repaired over a year before the accident – and, in the case of the August 2014

defect, a condition at a different location. The City cites cases, including Abbott v City of New

York (114 AD3d 515, 516 [1st Dept 2014]), which state that “repair orders or reports, reflecting

only that pothole repairs had been made to the subject area more than a year before the accident,

are insufficient to constitute prior written notice of the defect that allegedly caused a plaintiff's

injuries.” According to the City, the remaining repair records and gangsheets also did not provide

notice because they were “marked closed, not found by DOT crews or at entirely different locations

than the Plaintiff’s alleged accident” (NYSCEF Doc. No. 135, ¶ 48). Finally, the City contends

that the Big Apple maps did not provide notice because they did not show that there was a pothole

at the location in question.

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Even if the City did not have notice of the alleged defect, it may be liable if it caused or

created the condition that resulted in plaintiff’s injury. Citing Yarborough v City of New York, 10

NY3d 726, 728 [2008]), the City argues that because it has demonstrated lack of prior written

notice, thus satisfying its prima facie burden, the burden now shifts to plaintiff to show that an

issue of fact exists as to whether the City did cause or create the alleged defect. Moreover, where

the allegation is that the City created the defect, liability exists only if the City’s work

“‘immediately results in the existence of a dangerous condition’” (NYSCEF Doc. No. 135, ¶ 53,

quoting Oboler v City of New York, 8 NY3d 888, 889-890 [2007] [emphasis in Oboler]). It notes

that an affirmative act, rather than nonfeasance, is necessary for liability to attach to the City. It

states that only two work permits that DOT unearthed involve contracts that were issued to the

City or its contractors, and that both were for the installation of traffic signals.

The City’s motion was opposed only by Plaintiff, who argues that there are numerous

CARs and seven inspection reports that raise triable issues as to the City’s liability. Plaintiff points

out that the seven inspections of the crosswalk allegedly related to reports of cracked and sunken

asphalt might refer to the issue at hand, and this creates an issue of fact although “the inspections

resulted in a pass” (NYSCEF Doc. No. 175, ¶ 7). Plaintiff argues that the City cannot claim lack

of written notice as to those complaints marked “closed,” as the repairs may have been made

negligently. Plaintiff contends that the DOT records and supporting affidavit lack sufficient

specificity and thus do not show that the alleged defects were repaired (see NYSCEF Doc. No.

196, *16-17). With regard to Yelena Pasynkova’s affidavit, (NYSCEF Doc. No. 149) plaintiff

argues that it is insufficient because, although it provides explanations as to why the CARs were

marked “closed,” Pasynkova lacks personal knowledge of the repairs. Instead, plaintiff argues that

the City should have submitted affidavits from the individuals who performed the repairs, and its

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failure to do so necessitates denial of its motion (see NYSCEF Doc. No. 196, *16-17). Plaintiff

further argues that issues of fact also exist as to whether the City caused the dangerous condition

(id., *13-16).

Plaintiff relies on Velazquez v New York City Transit Auth. (2016 NY Slip Op 31124 [U],

*5 [Sup Ct, Bronx County 2016]) for the proposition that that the City’s affidavit was insufficient

to show lack of notice. In Velazquez, the Bronx County Supreme Court rejected the affidavit by

DOT employee Larisa Dubina as she did not have personal knowledge of the repairs to the pothole

and could not explain the significance of the entries in the motion. Specifically, the court found

that it was “unclear, based on the record, whether the defect was repaired, or the work order was

deemed closed” (id.).

Motion Sequence No. 007 [Filed by Defendant / Third-Party Plaintiff / Second Third- Party Plaintiff, Consolidated Edison Company of New York, Inc. s/h/a Consolidated Edison, Inc. (“Con Ed”)]

The final motion before the court is Con Ed’s motion for an order of summary judgment

in its favor dismissing the complaint as against it. In large part, Con Ed’s arguments are the same

as the ones asserted by WJL and Nico – namely, that there is no evidence that the work at issue

caused or created the alleged defect and, therefore, Con Ed, WJL and Nico are not liable for

plaintiff’s injuries. It also points to the gap of over three years between the completion of the

project and plaintiff’s accident as well as the fact that neither the contractor nor the subcontractor

noted any defects when the work was complete (NYSCEF Doc. No. 168, ¶ 54, citing, e.g., Zorin

v City of New York, 137 AD3d 1116, 1117-1118 [2d Dept 2016] [also finding it notable that the

moving party had “received no complaints, or further request, after its work was completed three

years prior to the accident]). In support of its position that the accident did not occur where the

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work was performed, Con Ed cites Robinson (18 AD3d at 255-256), in which the First Department

dismissed the plaintiff’s case against Con Ed and the subcontractors Roadway Contracting, Inc.

and City-Wide Asphalt because there was no proof that the work at issue took place where the

plaintiff’s accident allegedly took place.

Only plaintiff submits opposition to the motion. She cites to San Marco v Village/Town of

Mount Kisco (16 NY3d 111 [2010]), in which the court found that an issue of fact existed because

the prior written notice statute was inapplicable to the situation at hand. Additionally, she contends

that Con Ed’s failure to provide a separate statement of facts is fatal to its motion because this

violates Administrative Code § 202.8-g. She again cites to Cosme, in which the First Department

found that the subcontractors performed work “in sufficient proximity to the fall to create a triable

issue” (223 AD3d at 560). Here, she states, Nico’s witness, Denegall, testified that the crosswalk’s

width was around 15 feet (NYSCEF Doc. No. 194, p 45 lines 22-23) and, therefore, plaintiff’s fall,

in the middle of the crosswalk, was in sufficient proximity to the worksite. She again relies on

Camelio (219 AD3d at 455), where the resurfacing work in question “immediately resulted in an

elevation differential.” She cites numerous other cases in support.

In reply, Con Ed includes a number of photographs that illustrate the distance between the

work area and the site of the fall, as well as the proximity between the accident site and a manhole

cover. Among its exhibits are two hard copy filings (NYSCEF Doc. Nos. 225, 226) and videos

taken by Timothy J. Callinan, one of Con Ed’s senior staff investigators in its law department

(NYSCEF Doc. No. 224). The videos show Callinan walking across the street and taking

measurements, which purportedly show that the distance from the northwest to the southwest

corners is 60 feet and, therefore, plaintiff fell around 30 feet from the curbs. He further states that,

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as the distance from the curb to the end of the work area is 18.7 feet from the curb and plaintiff

fell around 11.3 feet away from the work area (see id., ¶¶ 4-6).

Analysis

This court first addresses the City’s motion to dismiss the third-party complaint, (Motion

Sequence Number 006), as the arguments set forth in the other motions are intertwined. As the

City contends, a plaintiff must establish that the City had prior written notice of the defect to prevail

in a lawsuit against the City (Smith v City of New York, 228 AD3d 472, 473 [1st Dept 2024]).

However, in this motion, “the City has the initial burden of establishing that it lacked prior written

notice of the defect or hazard under the Pothole Law” (Bania v City of New York, 157 AD3d 612,

612 [1st Dept 2018]).

Here, the City has satisfied its burden. As it contends, repair records from one year prior

to the accident are “insufficient to constitute prior written notice of the defect that actually caused

plaintiff’s injury” (DeGraffe v City of New York, 223 AD3d 560, 561 [1st Dept 2024]). Notice of

a condition related to a different spot on the crosswalk and/or intersection also is not sufficient

(see Dixon v Afternoon Delight Fifth Ave. Assoc., LLC, -- AD3d --, --, 2024 NY Slip Op 06120,

*² [1st Dept 2024]; Hued v City of New York, 170 AD3d 571, 571-572 [1st Dept 2019]). Permits

and notices of violation also do not provide prior written notice (see Gabriele v Edgewater Park

Owners Coop. Corp., Inc., 67 AD3d 484, 485 [1st Dept 2009]). The CARs were for unrelated

problems, which also is insufficient to confer notice on the City (see Civic v City of New York, 215

AD3d 445, 446 [1st Dept 2023]). Further, as the defendants and first- and second-third party

defendants have pointed out, there were no complaints in the years after the work was performed

and “evidence that defendant[s] repaired a defect several months [or three years] before plaintiff’s

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accident does not provide a basis for an inference that the repair resulted in an immediately

hazardous condition” (Trentman v City of New York, 162 AD3d 559, 559-560 [1st Dept 2018]).

Plaintiff’s opposition is insufficient to raise a triable issue regarding notice. She has not

supported her position that there were reports of cracks or other problems arguably related to the

alleged defect here. Instead, she merely speculates that this might be the case (see Corcoran v City

of New York, 127 AD3d 437, 438 [1st Dept 2015] [speculation that 17 missing work orders might

have shown prior notice was insufficient]). Further, plaintiff’s reliance on Velazquez is misplaced,

as in that case the court rejected the DOT affidavit because it did not explain whether “closed”

case markings in the record meant that the potholes had been repaired. The court did not state that

the City had to submit the affidavits of the workers who performed the repairs, but instead stated

that the City had to either submit the affidavit of “an individual with knowledge of the repairs . . .

or explaining the records submitted with the motion” (Velazquez, 2016 NY Slip Op 31124 at *⁵

[emphasis supplied]). Plaintiff’s argument that when a defect is repaired, there is still a triable

issue as to notice is in direct conflict with the prevailing law.

Because the City has shown, prima facie, that there was no prior written notice, “the burden

shift[s] to plaintiff to establish one of the exceptions to the notice requirement” (Dunn v City of

New York, 206 AD3d 403, 403 [1st Dept 2022]). Plaintiff’s argument that “there are issues of

material fact as to whether the City caused the defect” (NYSCEF Doc. No. 196, *14) lacks merit,

as it is conclusory and, specifically, does not explain how the City, which did not perform the work

in question, could have directly caused or created the problem (see Burtz v City of New York, 224

AD3d 535, 536 [1st Dept 2024] [finding that no triable issue existed where plaintiff submitted no

evidence that Con Ed caused or created the alleged condition]). Finally on this issue, the court

notes that third-party plaintiff, Con Ed, has not opposed the City’s application to dismiss its

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complaint. Accordingly, and for all the reasons stated above, the court grants Motion Sequence

Number 006 and dismisses the third-party complaint in its entirety.

Next, the court turns to Motion Sequence Numbers 004, 005, and 007. After careful

consideration, this court finds, for the reasons proffered by WJL, Nico, and Con Ed in their motion

papers, that plaintiff has failed to show that the work performed by these parties was in the area

where plaintiff fell (see Robinson, 18 AD3d at 256). As Con Ed points out, plaintiff misunderstood

the testimony that the crosswalk was 15-feet wide; that was the width of the crosswalk and not its

length, which was 60 feet. Plaintiff’s argument that the work in question may have caused the

defect around 11 feet away is also speculative. Her reliance on Cosme is not persuasive, as not

only was the work performed in close proximity to the accident site but, in addition, it had been

performed a mere 23 days before the plaintiff’s accident. Also, Camelio is distinguishable because,

although the landscaping company, DeBartolo Landscaping, had performed resurfacing work in

2015, the plaintiff’s evidence revealed that the work had immediately caused a lip or elevation

differential between the pavement and asphalt, and thus an issue of fact existed (219 AD3d at 455).

Further, as stated, plaintiff’s speculation that the work may have been performed negligently,

without any evidence of complaints or problems in the three-plus years between the work’s

completion and plaintiff’s accident, does not raise a triable issue (see Zorin at 1117-1118).

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Conclusion

It is undisputed on this record that plaintiff sustained injuries as the result of her fall.

However, for liability to exist, there must be a connection between the parties and the defect that

caused the injury. Here, plaintiff has not shown this connection.

Accordingly, it is hereby:

ORDERED that Motion Sequence Number 004, by WJL Equities, Inc., is granted, and the

second third-party case against it is dismissed; and it is further

ORDERED that Motion Sequence Number 005, by Nico Asphalt Paving, Inc., is granted,

and the second third-party complaint against it is dismissed; and it is further

ORDERED that, as both second third-party defendants are dismissed from the second

third-party action, the second third-party action is dismissed; and it is further

ORDERED that Motion Sequence Number 006, by the City of New York, is granted, and

the third-party action against it is dismissed; and it is further

ORDERED that Motion Sequence Number 007, by Consolidated Edison Company of

New York, s/h/a Consolidated Edison, Inc., is granted, and the complaint against it is dismissed.

DATE: 1/8/2025 J. MACHELLE SWEETING, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION: X GRANTED

SETTLE ORDER D DENIED GRANTED IN PART

SUBMIT ORDER D OTHER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE

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Footnotes

[1] of 18 [* 1] The following e-filed documents, listed by NYSCEF document number (Motion 005) 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 154, 157, 173, 180, 184, 203, 204, 205, 206, 207, 208, 209, 233, 235, 241 were read on this motion to/for JUDGMENT - SUMMARY . The following e-filed documents, listed by NYSCEF document number (Motion 006) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 161, 175, 181, 185, 195, 196, 197, 198, 199, 200, 201, 202 were read on this motion to/for JUDGMENT - SUMMARY . The following e-filed documents, listed by NYSCEF document number (Motion 007) 167, 168, 169, 170, 171, 182, 186, 187, 188, 189, 190, 191, 192, 193, 194, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 236, 239, 240 were read on this motion to/for JUDGMENT - SUMMARY . Pending before this court are four motions, each seeking summary judgment, pursuant to CPLR § 3212. In Motion Sequence Number 004, the second third-party defendant WJL Equities, Inc. (“WJL”), seeks an order dismissing the second third-party complaint against it. In Motion Sequence Number 005, the other second third-party defendant, Nico Asphalt Paving, Inc. (“Nico”), also moves for the same relief. In Motion Sequence Number 006, the third-party defendant The City of New York (“the City”), seeks an order dismissing the third-party action against it. Finally, in Motion Sequence No. 007, defendant/third-party plaintiff/second third-party plaintiff, Consolidated Edison Company of New York, Inc. s/h/a Consolidated Edison, Inc. (“Con Ed”), seeks to dismiss all claims against it. This court consolidates all of the motions herein for disposition. 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 2 of 18 Motion No. 004 005 006 007

[2] of 18 [* 2] Background According to the complaint, (NYSCEF Doc. No. 95), on December 4, 2014, plaintiff fell near Fifth Avenue and West 57th Street in Manhattan, sustaining serious injuries, due to the negligence of defendants. Her notice of claim indicates that she fell on West 57th Street, west of Fifth Avenue, in the crosswalk from the northwest corner to the southwest corner, and clarifies that she “tripped on a pothole located in the crosswalk” (NYSCEF Doc. No. 136). At her deposition, plaintiff stated that she believed she fell “about halfway across 57th Street, somewhere in that region” (NYSCEF Doc. No. 146, p 29 lines 11-12). She stated that the cause of the fall was a hole that “was deep enough that I stepped into it, that it caused me to crash down” (id., p 30 lines 13-15). She stated that she could not see the hole in advance because the area was extremely crowded. Initially, plaintiff named only the City of New York and New York City Department of Transportation (“DOT”) (collectively, “the City”), as the parties responsible for maintenance of the public sidewalk and roadway. In addition, she sued Con Ed, which was a subcontractor in “the Electric Communications Repair Project” that took place at or near the accident site in 2011 (id., ¶ 14). Plaintiff filed a notice of claim (NYSCEF Doc. No. 136), and commenced this action on March 10, 2016. Procedural Background By Order dated December 12, 2016, Justice James E. d’Auguste dismissed this action against the City, (NYSCEF Doc. No. 139), based on the City’s argument on the untimeliness of the filing of the notice of claim and the complaint. Subsequently, Con Ed commenced a third- party action which brought the City back into the case as a third-party defendant, arguing that “[i]f the injuries and damages were sustained as alleged in plaintiff’s complaint, they were sustained 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 3 of 18 Motion No. 004 005 006 007

[3] of 18 [* 3] either through the negligence of the plaintiff and/or the City” (NYSCEF Doc. No. 99, ¶ 7). In its second third-party complaint, (NYSCEF Doc. No. 100), Con Ed sued subcontractors WJL and Nico for indemnification, pursuant to the indemnification provisions contained in Con Ed’s Purchase Order No. 133745 with WJL, and Con Ed’s Purchase Order No. 943405 with Nico. Motion Sequence No. 004 [Filed by Second third-party defendant WJL Equities, Inc. (WJL’s) Motion for Summary Judgement] WJL argues that the second third-party action should be dismissed as against it because it neither caused nor created the condition at issue. Citing to the deposition of William J. Lougheed, who was the general superintendent at WJL during the period in question, WJL contends that it opened a cut, and in these circumstances, another company generally would do the backfill or the paving work (p 33, lines 11-19). It additionally notes that at his deposition, John Denegall of Nico identified a paving order that was issued by Con Ed to Nico (NYSCEF Doc. No. 110, p 12 line 24 – p 13 line 5). WJL also annexes documentation showing that its work was performed on August 6, 2011, over three-and-a-half years before plaintiff’s accident, and that Nico paved the area on August 10, 2011 (id., p 56 lines 14-23). In addition, WJL states that it received no complaints about its work and performed no work at the site after August 6, 2011. Accordingly, WJL argues, Con Ed has not raised a triable issue as to its liability. WJL also points to the deposition testimony of Jennifer Grimm (NYSCEF Doc. No. 108). At the time of the deposition, Ms. Grimm, a senior specialist in Con Ed’s law department, performed and supervised records searches and testified as to the results (id., p 9 lines 5-15). At her deposition, she provided the 78-page search result, which covered the period from December 4, 2012 to December 4, 2014 and included “DOT [Department of Transportation] permits, opening tickets, paving orders, corrective action requests, notices of violations and emergency control 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 4 of 18 Motion No. 004 005 006 007

[4] of 18 [* 4] system tickets” for the area where the accident occurred (id., p 13 lines 15-18). WJL argues that portions of Ms. Grimm’s testimony establish that Con Ed performed additional work at the site after the 2011 project – for example, on February 4, 2013 and March 4, 2013 (NYSCEF Doc. No. 117, ¶ 21, citing NYSCEF Doc. No. 108, p 23 lines 12-18, p 28, lines 14-22). WJL states that, based on the above, Con Ed’s claim for indemnification should be dismissed. It stresses that the indemnification clause in its agreement with Con Ed provides that WJL agreed to indemnify Con Ed for all claims “‘resulting in whole or in part from, or connected with, the performance of the Work by Contractor, and subcontractor, their agents, servants and employees, and including claims, loss, damage and liability arising from the partial or sole negligence of Con Edison or non-parties to this Contract . . .’” (NYSCEF Doc. No. 117, ¶ 23 [bold omitted from text], quoting NYSCEF Doc. No. 114, ¶ 36). WJL says that “[i]t has been uncontrovertibly established that WJL EQUITITES in no way caused or contributed to the condition that caused the plaintiff’s alleged injuries” (NYSCEF Doc. No. 117, ¶ 24). A portion of the clause purports to bind WJL to indemnify Con Ed for its own negligence. WJL states that this portion of the provision is per se unenforceable (id., ¶ 25). Relying on Cava Constr. Co., Inc. v Gealtec Remodeling Corp. (58 AD3d 660, 662 [2d Dept 2009]), it argues that Con Ed has not satisfied its burden of showing that it is free from negligence and therefore it cannot take advantage of the indemnification clause. Finally, WJL seeks dismissal of the breach of contract claim, submitting evidence that it provided the requisite indemnification (NYSCEF Doc. No. 116). Like the other movants, in its affirmation in partial support of WJL and Nico’s motions, Con Ed contends that plaintiff’s accident did not occur at the location where either Con Ed, WJL or Nico worked (see NYSCEF Doc. No. 172, ¶¶ 9-10, citing NYSCEF Doc. No. 169 [work order], 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 5 of 18 Motion No. 004 005 006 007

[5] of 18 [* 5] and NYSCEF Doc. No. 107 [Plaintiff’s Dep], p 35 lines 5-12). Rather, Con Ed contends that “[a]ll evidence and testimony regarding this work shows that although in the same general vicinity as the alleged defect, the work was a significant 7 of 10 distance away and that the alleged defect cannot be the cause of the work performed under opening ticket S686884C” (NYSCEF Doc. No. 172, ¶ 22). In the alternative, Con Ed argues that if this court were to find that liability exists as against Con Ed, then WJ and Nico must remain in the case as well. In its response to Con Ed’s motion, Nico concurs with the conclusion that the work performed by Con Ed, WJL and Nico itself, was not in the area where plaintiff’s accident occurred and, therefore, all three parties should be dismissed from this action. In the alternative, Nico argues that if this court were to find Nico liable, then there are issues of fact as to whether WJL performed its excavation and back filling work negligently and, if so, whether its negligence “led to the condition in which plaintiff alleges she fell” (NYSCEF Doc. No. 177, ¶ 11). Plaintiff opposes WJL’s motion in its entirety, stating that issues of fact remain as to whether WJL caused the defect that ultimately resulted in her accident. She states that she “clearly asserted that she stepped into a hole in the pavement in the area of 57th Street between 5th and 6th Avenue[s]” (NYSCEF Doc. No. 211, *11). Moreover, she argues that WJL has not satisfied its burden of establishing that the defective condition was not near the area where it performed its work. For the proposition that her fall was close enough to the worksite to support a finding of liability, plaintiff cites Cosme v City of New York (223 AD3d 559, 560 [1st Dept 2024]), in which Nico1 and Welsbach Electric Corp.’s submission of a Google Map and other evidence did not eliminate the 1 Nico, a second third-party defendant here, was also involved in Cosme. 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 6 of 18 Motion No. 004 005 006 007

[6] of 18 [* 6] possibility that the worksite “was in sufficient proximity to the fall to create a triable issue of fact as to whether such work created or exacerbated the crosswalk defect.” Next, plaintiff points to the Second Department case, Camelio v Shady Glen Owners’ Corp. (219 AD3d 453 [2d Dept 2023]) for the proposition that the gap in time between the corrective work and the accident is not necessarily fatal. There, although the landscaping company, DeBartolo Landscaping, had performed resurfacing work in 2015, the court found that an issue of fact existed where the plaintiff’s evidence revealed, among other things, that its work in “the area of the crosswalk prior to the subject accident [in 2018], which “involved the application of new asphalt on top of the existing pavement, [which] immediately resulted in . . . [an] elevation differential at the seam between the existing pavement and new asphalt” (id. at 455). Plaintiff cites several other cases in support as well. In light of the above, plaintiff argues that WJL’s application to dismiss the indemnification claims against it are premature. WJL submits separate replies in response to plaintiff and Nico’s oppositions (NYSCEF Doc. Nos. 218, 221 [respectively]). In response to plaintiff’s opposition, WJL reiterates that neither WJL nor Nico performed work in or near the accident site. Further, according to WJL, plaintiff has not shown that it performed its work negligently. It notes that Cosme, upon which plaintiff relies, is distinguishable because in that case there was merely a 23-day gap between the completion of the excavation in question and the plaintiff’s injury. It distinguishes the other cases on which plaintiff relies as well, noting that in those cases there were issues of fact as to whether the work occurred in the subject areas and/or whether work that occurred shortly before the date of the plaintiff’s accident caused the fall, or that evidence raised an issue as to whether the defect occurred as an immediate result of the work. In the case at hand, WJL contends that plaintiff’s 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 7 of 18 Motion No. 004 005 006 007

[7] of 18 [* 7] arguments concerning causation are merely speculative and, as such, are insufficient to withstand its summary judgment motion. In response to Nico’s partial opposition, WJL reiterates that four days after it completed its work on August 6, 2011, Nico “performed permanent restoration and paving over the exact same area” (NYSCEF Doc. No. 219, ¶ 4 [bold removed]). As such, WJL rejects Nico’s suggestion that, if there was a problem relating to the 2011 project, there is an issue as to whether the defect was due to WJL’s negligent excavation or backfilling. It claims that this so-called triable issue is “a sham or frivolous issue [that] will not preclude summary relief” (NYSCEF Doc. No. 221, ¶ 8, citing Fender v Prescott, 101 AD2d 418, 425 [1st Dept 1984], affd 64 NY2d 1077 [1985], and affd

[64] NY2d 1079 [1985]). Motion Sequence No. 005 [Filed by Second Third-Party Defendant, Nico Asphalt Paving, Inc. (“Nico”)] In support of its motion, Nico cites to the deposition testimony of DOT employee Danny Garcia in which Mr. Garcia affirmed that “[t]here were no CAR reports, or any complaints of the accident location contained within the records during the 2-year search period” (id., ¶ 22, generally citing NYSCEF Doc. No. 128). Like WJL, Nico reiterates that Con Ed performed work on the northwest corner of 5th Avenue and West 57th Street on February 4, 2013 (id., p 23 lines 6-16), and that the electrical work in question was performed by Con Ed without the assistance of subcontractors (id., p 30 lines 5-30). Like WJL, Nico relies on the testimony of WJL’s employee, Mr. Lougheed, who confirmed that the pertinent work ticket indicated that WJL performed an excavation, not a paving, on the southwest corner of 5th Avenue and 57th Street (NYSCEF Doc. No. 130, p 85 lines 13-19; p 62 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 8 of 18 Motion No. 004 005 006 007 8 of 18 [* 8] line 24 – p 63 line 12). Further, Mr. Lougheed noted that WJL’s work also entailed putting in the backfill – that is, filling up the hole from the excavation up to two inches from the top of the hole, typically with sand and concrete (id., p 66 line 18 – p 67 line 8). Nico’s employee, Mr. Denegall, explained that Con Ed took out an area of 74 inches by 41 inches, the area of a catch-drain at the area (id., p 19 lines 19-22), that Nico only paved 9 feet by 7 feet (id., p 19 lines 13-17), and that Nico did not perform work above the rectangular area in the crosswalk (id., p 60 lines 15-21). Nico’s primary argument, like that of WJL, is that neither of these two parties performed work at the accident site. In support, Nico cites Robinson v City of New York (18 AD3d 255, 256 [1st Dept 2005]), in which the First Department dismissed Con Ed and the co-defendants, City- Wide Asphalt Paving Co. and Roadway Contracting, Inc., because plaintiff had identified the location of her fall and there was “no proof in the record whatsoever that [the defendants] performed any work” in the area where the accident allegedly occurred. Additionally, Nico states that summary judgment in its favor is appropriate because its evidence establishes that its work did not create the condition that resulted in plaintiff’s injury (NYSCEF Doc. No. 122, citing Maloney v Consolidated Edison Co. of N.Y., 290 AD2d 540, 540 [2d Dept 2002], and Zorin v City of New York, 137 AD3d 1116, 1117-1118 [2d Dept 2016]). Here, Nico argues, there is no evidence that WJL or Nico performed their work negligently. Nico states that there were no complaints regarding the two subcontractors’ work in the three years between the completion of the 2011 project and plaintiff’s fall in 2014. Further, Nico contends that all claims and cross-claims for common-law indemnification must be dismissed because there is no evidence showing that it was negligent or that it owed any duty to plaintiff. For similar reasons, Nico moves for the dismissal of Con Ed’s claim against it for contractual identification. 152079/2016 PARU, BARBARA vs. CITY OF NEW YORK Page 9 of 18 Motion No. 004 005 006 007 9 of 18 [* 9]