PERELSTEIN v. Brooklyn Union Gas Company, d/b/a Keyspan Energy Delivery New York, et al., appellants. (2007)

In an action to recover damages for personal injuries, the defendants Brooklyn Union Gas Company, d/b/a Keyspan Energy Delivery New York, and Keyspan Corporation, appeal from so much of an order of the Supreme Court, Kings County (Hinds–Radix, J.), dated November 29, 2006, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against the appellants is granted.

The plaintiff allegedly was injured when she tripped and fell on a defective portion of a public sidewalk located in front of 577 Montgomery Street in Brooklyn.  She commenced this action against, among others, Brooklyn Union Gas Company, d/b/a Keyspan Energy Delivery New York, and Keyspan Corporation (hereinafter collectively the Keyspan defendants).  The Keyspan defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them by tendering proof in admissible form that they had not performed any excavation work at the location of the alleged dangerous condition.  The Supreme Court denied the motion.  We reverse.

The Keyspan defendants established their entitlement to judgment as a matter of law, and the burden shifted to the plaintiff to submit admissible evidence establishing a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Belgrave v. City of New York, 6 A.D.3d 368, 368–369, 773 N.Y.S.2d 907).  In opposition to the Keyspan defendants' motion, the plaintiffs failed to come forward with evidence sufficient to raise a triable issue of fact (see Schwartz v. City of New York, 23 A.D.3d 368, 804 N.Y.S.2d 684;  Belgrave v. City of New York, supra;  Verdes v. Brooklyn Union Gas Co., 253 A.D.2d 552, 553, 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 contention that the yellow markings on the portion of the sidewalk where she fell indicated that the Keyspan defendants had performed work there at some time in the past was purely speculative and thus, insufficient to raise a triable issue of fact (see Reyes v. City of New York, 29 A.D.3d 667, 667–668, 814 N.Y.S.2d 873;  Flores v. City of New York, 29 A.D.3d 356, 358–359, 815 N.Y.S.2d 48;  Rendon v. Castle Realty, 28 A.D.3d 532, 533, 813 N.Y.S.2d 479).