BABAYAN v. Verizon New York, Inc., et al., respondents (and a third-party action). (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias–Colón, J.), dated January 18, 2023.  The order, insofar as appealed from, granted that branch of the motion of the defendant Verizon New York, Inc., and that branch of the cross-motion of the defendant V.N.A. Utility Contracting Co., Inc., which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

On February 19, 2014, the plaintiff allegedly was injured when she tripped and fell due to a hole in a crosswalk at the intersection of Neptune Avenue and Ocean Parkway in Brooklyn.  She thereafter commenced this action to recover damages for personal injuries against, among others, the defendant Verizon New York, Inc. (hereinafter Verizon), which had been issued a permit in 2013 to perform certain work in the vicinity.  The plaintiff then amended the complaint to add the defendant V.N.A. Utility Contracting Co., Inc. (hereinafter VNA), which had performed work for Verizon in relation to the permit.  Verizon had hired VNA to perform excavation work for conduit construction, which VNA began on March 17, 2013, and completed on March 19, 2013.  Verizon moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it, and VNA cross-moved, among other things, for summary judgment dismissing the amended complaint insofar as asserted against it.  In an order dated January 18, 2023, the Supreme Court, inter alia, granted that branch of Verizon's motion and that branch of VNA's cross-motion.  The plaintiff appeals.

“A contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street” (Encalada v. Brooklyn Union Gas Co., 221 A.D.3d 860, 860, 198 N.Y.S.3d 588;  see Rosa v. City of New York, 215 A.D.3d 707, 708, 187 N.Y.S.3d 685;  Ocello v. City of New York, 194 A.D.3d 828, 829, 143 N.Y.S.3d 886).  Here, Verizon and VNA established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them by demonstrating that they did not perform any work at the location where the alleged accident occurred or otherwise create the defect that caused the plaintiff's injuries (see Wright v. City of New York, 233 A.D.3d 1053, 1054, 222 N.Y.S.3d 668;  Thomas v. City of New York, 216 A.D.3d 1199, 191 N.Y.S.3d 83;  Chtchannikova v. City of New York, 174 A.D.3d 572, 573, 102 N.Y.S.3d 435).  In opposition, the plaintiff failed to raise a triable issue of fact (see Garafola–Booth v. City of New York, 164 A.D.3d 473, 474, 77 N.Y.S.3d 875;  Burton v. City of New York, 153 A.D.3d 487, 488, 60 N.Y.S.3d 220).

Accordingly, the Supreme Court properly granted that branch of Verizon's motion and that branch of VNA's cross-motion which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

In light of our determination, we need not reach the parties' remaining contentions.

CHAMBERS, J.P., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.