McDONALD v. Consolidated Edison Company of New York, Inc., defendant third-party plaintiff-respondent, (2007)

In an action to recover damages for personal injuries, (1) the defendant Tri-Messine Construction Co. appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 6, 2005, which denied its motion for summary judgment dismissing the complaint, all cross claims, and the third-party complaint insofar as asserted against it, (2) the defendant Consolidated Edison Company of New York, Inc., appeals from an order of the same court, also dated June 6, 2005, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and (3) the defendant Safeway Construction Enterprises, Inc., appeals from an order of the same court, also dated June 6, 2005, which denied its motion for summary judgment dismissing the complaint, all cross claims, and the third-party complaint insofar as asserted against it.

ORDERED that the orders are reversed, on the law, with one bill of costs, and the motions of the defendants Tri-Messine Construction Co. and Safeway Construction Enterprises, Inc., for summary judgment dismissing the complaint, all cross claims, and the third-party complaint insofar as asserted against them and the motion of the defendant Consolidated Edison Company of New York, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it are granted.

The plaintiff was injured when he lost control of his motorcycle while traveling down 21st Street in Queens.   The plaintiff alleged, inter alia, that the accident was the result of a defective road condition created by the defendants Consolidated Edison Company of New York, Inc., Tri-Messine Construction Co., and Safeway Construction Enterprises, Inc. (hereinafter collectively the defendants).

 In support of their separate motions, each of the defendants made a prima facie showing of its entitlement to summary judgment by presenting sufficient evidence to show that it did not create the allegedly defective condition (see Cendales v. City of New York, 25 A.D.3d 579, 807 N.Y.S.2d 414;  Maloney v. Consolidated Edison Co. of N.Y., 290 A.D.2d 540, 736 N.Y.S.2d 630;  Verdes v. Brooklyn Union Gas Co., 253 A.D.2d 552, 677 N.Y.S.2d 168;  Curci v. City of New York, 240 A.D.2d 460, 659 N.Y.S.2d 775).   The plaintiff's submissions in opposition to the defendants' motions were based on speculation and surmise and were therefore insufficient to raise a triable issue of fact (see Regan v. City of New York, 8 A.D.3d 462, 778 N.Y.S.2d 294;  Portanova v. Dynasty Meat Corp., 297 A.D.2d 792, 747 N.Y.S.2d 591;  Delano v. Consolidated Edison Co. of N.Y., 231 A.D.2d 671, 647 N.Y.S.2d 849).

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