SEVERINGHAUS v. City of New York, et al., Defendants. (2022)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered October 29, 2021, which granted defendant TUFCO, Inc.’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion for summary judgment was not premature, as plaintiff did not identify any additional evidence in TUFCO's possession sufficient to support a denial of the motion. Rather, plaintiff offers only speculation that depositions, in addition to the documentary evidence already submitted, might reveal particular work that TUFCO performed or particular equipment it used; this speculation is an insufficient basis for denial of the motion (see Flores v. City of New York, 66 A.D.3d 599, 600, 888 N.Y.S.2d 27 [1st Dept. 2009]).

As to the merits, viewing the evidence in the light most favorable to plaintiff, the record demonstrates that TUFCO did not perform any work on the sidewalk where plaintiff allegedly tripped and fell (see Bailey v. New York City Tr. Auth., 270 A.D.2d 156, 157, 704 N.Y.S.2d 582 [1st Dept. 2000]). On the contrary, any exterior work that TUFCO performed at the building abutting the sidewalk had no connection to the sidewalk (id.). Nor does the evidence otherwise raise any issue of fact whether TUFCO, a contractor, had any duty to maintain the sidewalk, as the evidence demonstrates it did not own or control the premises (see Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 [1st Dept. 2005]).