ZACIEWSKI v. MacFARLANE (1999)

Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.   Plaintiff Gary D. Zaciewski was injured at his place of employment when he stepped onto a manhole cover that flipped, and he fell into the manhole.   The complaint alleges that defendants were negligent in failing to replace the cover when repairing the sewer line about two weeks before the accident.   Defendants met their initial burden by establishing that, in repairing a sewer backup, their employee worked on the main line from the basement of an adjacent building but did not work in the area of the manhole cover.   Plaintiffs rely on the deposition testimony of a maintenance employee that he did not see anyone working in the area of the manhole but that cleaning the main line would require removal of the manhole cover.   That testimony is speculative and thus insufficient to raise a triable issue of fact whether defendants' employee worked in the area of the manhole cover (see, Judith M. v. Sisters of Charity Hosp., 249 A.D.2d 890, 671 N.Y.S.2d 400, affd. 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95;  Hall v. Gaston, 255 A.D.2d 1009, 680 N.Y.S.2d 333;  Elmer v. Kratzer, 249 A.D.2d 899, 901, 672 N.Y.S.2d 584, appeal dismissed 92 N.Y.2d 921, 680 N.Y.S.2d 462, 703 N.E.2d 274).

Order unanimously affirmed without costs.

MEMORANDUM: