GARCIA v. Keyspan Energy Delivery N.Y.C., appellant. (2008)

In an action to recover damages for personal injuries, etc., the defendant Keyspan Energy Delivery N.Y.C. appeals from an order of the Supreme Court, Queens County (Flug, J.), dated June 18, 2007, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Keyspan Energy Delivery N.Y.C. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

 The Supreme Court should have granted the motion of the defendant Keyspan Energy Delivery N.Y.C. (hereinafter Keyspan), for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   Keyspan established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not create the alleged sidewalk defect that caused the injured plaintiff's fall.   The evidence that the plaintiffs submitted in opposition to the motion did not raise a triable issue of fact as to whether certain work performed by Keyspan, which was at least 53 feet away from the site of the accident, created the alleged sidewalk defect (see Jones v. City of New York, 45 A.D.3d 735, 846 N.Y.S.2d 307;  Cendales v. City of New York, 25 A.D.3d 579, 580-581, 807 N.Y.S.2d 414;  Shvartsberg v. City of New York, 19 A.D.3d 578, 798 N.Y.S.2d 85).