PIANOFORTE v. Kordun Construction Corporation, Defendant-Appellant, (2023)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered January 20, 2022, which, to the extent appealed from, denied defendant/third-party defendant Kordun Construction Corporation's motion for summary judgment dismissing plaintiff's common-law negligence claim and all cross-claims and third-party claims as against it, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that he sustained injuries when he tripped and fell due to stepping into an uncovered core hole while performing electrical work in the boiler room of a building owned by defendant New York City Housing Authority.  Defendant Technico Construction Services, Inc. was the general contractor on the project, and defendant Kordun was the HVAC subcontractor.

The court should have granted Kordun summary judgment dismissing the common-law negligence claim and all cross-claims and third-party claims as against it.  Kordun established prima facie that it did not create the core hole on which plaintiff tripped and fell by submitting the testimony of its construction superintendent that Kordun did not require, use, or drill any core hole in the boiler room prior to plaintiff's accident.  Further, Technico's superintendent testified that Technico was responsible for covering holes and openings at the jobsite and, when shown a photograph of the subject core hole, that stated the core hole appeared to have preexisted the construction project.

In opposition, plaintiff failed to raise a triable issue of fact.  The testimony of Technico's superintendent that he had seen Kordun employees drilling core holes was insufficient to rebut plaintiff's prima facie showing, as he could not recall where or when the core holes were being drilled (see Flores v. City of New York, 29 AD3d 356, 358 [1st Dept 2006]).