INEMER v. Spring Scaffolding, Inc., Defendant-Respondent-Appellant. (2004)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered April 6, 2004, which denied defendants' motions for summary judgment, unanimously reversed, on the law, without costs, and defendants' motions for summary judgment granted.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

In support of their motions for summary judgment, defendants presented evidence establishing that they neither created nor had notice of the pole-chain-structure which occasioned plaintiff's injuries.   Plaintiff's attorney's affirmation, which merely stated in conclusory fashion that plaintiff “was caused to trip and fall by reason of a chain which was part of [defendants'] scaffolding installation,” failed to sustain plaintiff's burden of presenting evidence on either issue sufficient to demonstrate the existence of a triable question of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Chamberlain v. City of New York, 286 A.D.2d 232, 233, 729 N.Y.S.2d 100 [2001], lv. denied 97 N.Y.2d 605, 737 N.Y.S.2d 53, 762 N.E.2d 931 [2001] ).   In fact, plaintiff failed to offer any evidence showing that it was more likely than not that defendants were responsible for the installation of the pole-and-chain structure (see Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758 [1998];  Bernstein v. City of New York, 69 N.Y.2d 1020, 1022, 517 N.Y.S.2d 908, 511 N.E.2d 52 [1987] ), despite the presence of contractors other than defendant Spring Scaffolding at the site when plaintiff's injury occurred, or that defendants had actual or constructive notice that the structure was present at the site (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).   Moreover, plaintiff himself testified that his injury occurred in front of the abutting property, 425 Seventh Avenue, and that the pole-and-chain structure was not attached to the scaffolding.

We have considered plaintiff's other contentions and find them unavailing.