DONNELLY v. L. K. Comstock and Company, Defendant-Appellant. (1999)

Order, Supreme Court, New York County (Louis York, J.), entered November 20, 1998, which denied defendant Comstock's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff Mary Donnelly was injured on March 4, 1994, when she allegedly tripped after stepping into a hole in the pavement that was part of a scar from an excavation trench, at the intersection of 53rd Street and Park Avenue in Manhattan.   Comstock had contracted with the City to perform traffic signal maintenance in this area, which included underground conduit replacement.   Comstock obtained insurance for such purpose, and concededly performed repair work at this location in December 1993 and February 1994, as well as on dates in March and April after plaintiff's fall.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact;  failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Since Comstock had clearly done some work at the accident site, it was incumbent upon it to show that excavation of the street would have been unnecessary to perform such work.   Because the record fails to contain such proof in admissible form, and Comstock's motion relied exclusively on the absence of excavation permits, the motion was properly denied irrespective of the sufficiency of plaintiffs' opposing papers.

MEMORANDUM DECISION.