Lopez v. Brooklyn Union Gas Co.

Lopez v Brooklyn Union Gas Co. 2024 NY Slip Op 30507(U) February 15, 2024 Supreme Court, Kings County Docket Number: Index No. 504566/2019 Judge: Richard Velasquez 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.

[FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ INDEX NO. 504566/2019 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/15/2024

At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 15th day of FEBRUARY 2024 PRESENT: HON. RICHARD VELASQUEZ Justice. -----------------------------------------------------------------------------X NALDY LOPEZ, Petitioner(s), Index No.: 504566/2019 Decision and Order Mot. Seq. No. 5 & 6 -against-

THE BROOKLYN UNION GAS COMPANY, individually and d/b/a NATIONAL GRID NEW YORK and THE HALLEN CONSTRUCTION CO. INC., and NEW YORK PAVING, INC.

Respondent(s). ----------------------------------------------------------------------X

The following papers NYSCEF Doc #'s 83 to 148 read on this motion: Papers NYSCEF DOC NO. 's Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ __ 83-107; 110-131 Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ __ 132-135; 137-139; 143 Reply Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 146; 147; 148

After having come before the Court and the Court having heard oral argument on

AUGUST 2, 2023, and after considering the forgoing documents above filed in connection

with this matter the court finds as follows:

Defendant NEW YORK PAVING, INC. moves pursuant to CPLR 3212 for summary

judgment in favor of defendant dismissing plaintiffs claims in their entirety; (b) dismissing

co-defendants' cross-claims in their entirety. (MS#S) Plaintiff opposes the same.

Plaintiff moves for an Order pursuant to CPLR § 3212, granting plaintiff partial

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summary judgment on the issue of liability against defendants, THE BROOKLYN UNION

GAS COMPANY, individually and D/B/A NATIONAL GRID NEW YORK and HALLEN

CONSTRUCTION,CO., INC. (MS#6) Defendants oppose the same.

FACTS

This action arises from personal injuries allegedly sustained by plaintiff, NALDY

LOPEZ while she was a pedestrian who was allegedly injured when her foot went into a

hole located in cold patch surrounding a metal plate on a sidewalk located adjacent to the

premises located at 3228 Mermaid Avenue in Brooklyn, New York, which allegedly

caused her to trip and fall on April 29, 2018. Defendants, HALLEN CONSTRUCTION and

defendant, THE NATIONAL GRID NEW YORK pursuant to a contract performed

excavation and gas main replacements on the sidewalk at the premises. Plaintiff alleges

said contract work caused and created the dangerous tripping hazard which caused the

plaintiff to trip and fall. It is alleged by the plaintiff Naldy Lopez in her testimony taken on

April 29, 2018, at 1:00 pm plaintiff fell on the sidewalk of 33rd Street between Mermaid

Avenue and Surf Avenue near the corner closest to the intersection with Mermaid Avenue

when her right foot went into a "round hole" the size of her hand. See Exhibit "K" at 16 -

23; 38. It is undisputed, on the date Plaintiff fell there was a steel plate on the sidewalk in

close proximity to where she fell.

New York Paving Hallen issued paving orders to New York Paving to perform

temporary restoration to the sidewalk at West 33rd Street between Mermaid and Surf 15

feet from the corner. New York Paving contends they performed the sidewalk restoration

on West 33rd Street between Mermaid and Surf Avenue on June 11, 2018, two months

after the alleged incident.

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However, Mr. Stone uncovered another paving order and this paving order was

issued by Hallen Construction on April 2, 2018 to the paving contractor to put down

temporary asphalt indicated (Code: CD 92 on the paying order on p. 20 of Exhibit N) at

the location of West 33rd Street between Mermaid Avenue and Surf Avenue. On the next

page for this paving order it is indicated that the temporary asphalt was put down at this

location on April 3, 2018. (Exhibit M, p. 50, lines 5-9 and Exhibit N, p. 21. The paving

Order to replace the temporary asphalt at the above-mentioned location was issued by

Hallen Construction to paving contractor was April 3, 2018. (Exhibit M, p. 42, line 6-9,

Exhibit N, p. 24) A continuation of that paving order is on page 25 of Exhibit N and which

Mr. Stone states that a final restoration of the sidewalk on West 33rd Street between

Mermaid and Surt Avenue with concrete was completed by the paving contractor on June

10, 2018. ( Exhibit M, p. 42, lines 10- 14, and Exhibit N, pgs. 24-25

New York Paving contends they are entitled to summary judgment because the

New York Paving did not owe a duty to the plaintiff to maintain or repair the subject

sidewalk; they did not create the subject condition; they did not create the hole in the

sidewalk; they did not place the steel plate on the sidewalk; they did not place the

macadam around the steel plate. Defendant New York Paving also contends that any

work they did where the alleged accident occurred was two months after the accident,

and they were not performing any work at that location at the time of the accident. The

Court notes defendant New York Paving does not admit to placing the any temporary

asphalt on the sidewalk, but New York Paving contends that even if they did place the

temporary asphalt in the sidewalk, defendants contend the temporary asphalt was not

defective at the time the work was performed and the hole formed at a later date after the

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sidewalk was excavated and the plate and macadam were placed around the plate.

ANALYSIS

It is well settled law that whenever any sidewalk, pavement, curb or gutter in any

street shall be taken up, the person or persons by whom or for whose benefit the same

is removed has a statutory obligation to restore the sidewalk. Maldonado v 527 Lincoln

Place, LLC, 173AD3d 730, 103 NYS3d 581, 2019 N.Y. App. Div, 2019 NY Slip Op 04373.

In Maldonado the Court found that it was undisputed that National Grid, through its

contractors, constructed the asphalt-filled trench on which the plaintiff allegedly fell. The

trench was part of a gas main replacement project that spanned almost the entire block

of Lincoln Place between Classon and Franklin Avenues. This is just like the present case

wherein it is undisputed defendants, THE BROOKLYN UNION GAS COMPANY,

individually and D/8/A NATIONAL GRID NEW YORK and HALLEN

CONSTRUCTION,CO., INC. through its contractors constructed the asphalt on which the

plaintiff allegedly fell. As such plaintiffs motion for partial summary judgment is hereby

granted. (MS#6)

Whether New York Paving did in fact, put down temporary blacktop in the area

where plaintiff fell and whether it was negligent in doing so are both issues of fact in this

action. There are two paving orders and one of the orders is for before the accident

occurred, therefore New York Paving has not overcome their burden of showing the

paving order from April was not them or that they did not do any work before the accident,

or if they did do the work that said work was not defective, pursuant to the April paving

order referenced above. As such, motion sequence number five (5) for summary

judgment is hereby denied there are issues of fact.

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[FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ INDEX NO. 504566/2019 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 02/15/2024

Accordingly, defendant New York Paving's motion for summary judgment is hereby

denied for the reasons stated above. (MS#S) Plaintiffs motion for partial summary

judgment against defendants, THE BROOKLYN UNION GAS COMPANY, individually

and D/B/A NATIONAL GRID NEW YORK and HALLEN CONSTRUCTION.CO., INC. is

hereby granted for the reasons stated above. (MS#6).

This constitutes the Decision/Order of the court.

Dated: Brooklyn, New York FEBRUARY, 15, 2024

ijFO Hon. Richard Velasq

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Footnotes

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