WEITZ v. (and a third-party action). (2008)

In an action to recover damages for personal injuries, etc., the defendant Orange and Rockland Utilities, Inc., appeals from an order of the Supreme Court, Dutchess County (Dolan, J.), dated November 19, 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 one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion of the defendant Orange and Rockland Utilities, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The plaintiffs seek to recover damages for injuries allegedly sustained by the plaintiff Adam Weitz (hereinafter Weitz) while performing construction work on June 8, 2004.   The appellant Orange and Rockland Utilities, Inc. (hereinafter ORU), established that it did not own, control, or maintain the live overhead electrical lines that allegedly caused Weitz's injuries.   Rather, those lines were owned and controlled by the third-party defendant, East Ramapo School District (hereinafter ERSD).

Although various parties alleged at their depositions that representatives of ORU, ERSD, and the defendant Verticon, Ltd., met on May 5, 2004, to discuss certain aspects of the subject project, and that ORU then gave the other parties general reassurances with respect to electrical safety, ORU established that those reassurances were proper in light of the facts made known to it at that time as to the scope of the proposed construction.   In fact, the major task discussed at that meeting that was related to construction involving the electrical lines, i.e., the erection of certain trusses, was successfully completed without incident.

ORU's submissions were sufficient to establish its prima facie entitlement to judgment as a matter of law.   In response, the respondents failed to raise a triable issue of fact.   Accordingly, ORU's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it should have been granted (see CPLR 3212[b];  Scurti v. City of New York, 40 N.Y.2d 433, 438-439, 387 N.Y.S.2d 55, 354 N.E.2d 794;  Cleary v. Harris Hill Golf Ctr., Inc., 23 A.D.3d 1142, 804 N.Y.S.2d 202;  Mirza v. Metropolitan Life Ins. Co., 2 A.D.3d 808, 809-810, 770 N.Y.S.2d 384;  cf. Heard v. City of New York, 82 N.Y.2d 66, 74, 603 N.Y.S.2d 414, 623 N.E.2d 541, Banks v. Central Hudson Gas & Electric Corp., 224 F.2d 631, 634-636, cert. denied 350 U.S. 904, 76 S.Ct. 182, 100 L.Ed. 793).