SHVARTSBERG v. Verizon, respondent. (2005)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated May 5, 2004, as granted that branch of the defendant Verizon's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendant City of New York cross-appeals, as limited by its brief, from so much of the same order as granted that branch of the defendant Verizon's motion which was for summary judgment dismissing all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the defendant Verizon.

 The defendant Verizon established its entitlement to judgment as a matter of law by demonstrating that neither its employees nor its contractors created the alleged hazardous condition in the roadway which allegedly caused the plaintiff to fall (see Palone v. City of New York, 5 A.D.3d 750, 751, 773 N.Y.S.2d 583;  Skates v. City of New York, 304 A.D.2d 820, 757 N.Y.S.2d 885;  Maloney v. Consolidated Edison Co. of N.Y., 290 A.D.2d 540, 736 N.Y.S.2d 630;  McDermott v. South Farmingdale Water Dist., 167 A.D.2d 517, 562 N.Y.S.2d 191).   In opposition to the motion, the plaintiff and the defendant City of New York failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 As Verizon correctly contends, the affidavits of plaintiff's daughters could not be considered in determining the motion.   In response to discovery demands and a preliminary conference order, the plaintiff stated that she knew of no notice witnesses and subsequently filed a note of issue and certificate of readiness, certifying that discovery had been completed (see Sandstedt v. Flynn's Enters., 305 A.D.2d 395, 758 N.Y.S.2d 524;  Lau Lee Chan v. Mikhalov, 279 A.D.2d 456, 719 N.Y.S.2d 585;  Ortega v. New York City Tr. Auth., 262 A.D.2d 470, 692 N.Y.S.2d 131;  Robinson v. New York City Hous. Auth., 183 A.D.2d 434, 583 N.Y.S.2d 381).

Accordingly, the Supreme Court properly granted Verizon's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.