Di Sanza v. City of New York

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 22, 2006, which, to the extent appealed from, as limited by the briefs, granted the motion of defendant Consolidated Edison Company of New York (Con Ed) for summary judgment dismissing the complaint as against it, affirmed, without costs. Con Ed established its prima facie entitlement to summary judgment by demonstrating that it neither created nor had actual or constructive notice of the defect in its metal grating upon which plaintiff allegedly tripped (see Resto v 798 Realty, LLC, 28 AD3d 388 [2006]). Con Ed satisfied its burden by submitting the uncontested testimony of an employee that he inspected the grate less than five months before the accident and found no defect. None of the submissions of plaintiff in opposition created an issue of fact. The photograph of the grate, taken after the accident, does not indicate a condition that must have been of long duration (compare Jacobsen v Krumholz, 41 AD3d 128 [2007] [photographs and plaintiff’s testimony supported an inference that the defect was not suddenly created]). The five work permits for the vicinity of the grate, for work that may or may not have been performed, all predated the October 29, 2002 inspection in which the Con Ed employee ascertained that there were no defects, which inspection, as noted, predated the accident by less than five months. Plaintiff’s expert did not dispute the Con Ed employee’s testimony; rather, the expert stated that the defect could have been caused by constant opening and closing of the grate and that the grate should have been inspected every three months. [536] Thus, the expert tacitly accepted the assertion of Con Ed’s employee that there was no defect at the time of the inspection. The expert’s speculation as to the cause of the defect and the adequacy of Con Ed’s inspection schedule is insufficient to raise a triable issue of fact, because there is no evidence that Con Ed returned to work at the site after October 29, 2002 or that anyone ever reported or noticed a condition before the accident (see Butler-Francis v New York City Hous. Auth., 38 AD3d 433 [2007]). Concur—Friedman, Marlow and Buckley, JJ.