BOCANEGRA v. (and a third-party action). (2009)

In an action to recover damages for personal injuries, the defendant Verizon New York, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated August 1, 2008, as denied those branches of its motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

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

On December 27, 2002, the plaintiff allegedly sustained injuries when she tripped and fell while crossing a street in Queens.   She commenced this action to recover damages for personal injuries against, among others, the defendant Verizon New York, Inc. (hereinafter Verizon).   Verizon commenced a third-party action against its contractor, Corzo Contracting Company, Inc. (hereinafter Corzo), which performed conduit installation work for Verizon in the vicinity of the accident.   Verizon then moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, arguing, inter alia, that the evidence established that no work had been performed on its behalf at the precise location where the accident occurred.   The Supreme Court denied those branches of Verizon's motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   We affirm.

Verizon failed to demonstrate its prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact as to whether its contractor Corzo performed any work where the accident occurred (see Lavaud v. City of New York, 45 A.D.3d 536, 536, 844 N.Y.S.2d 719;  Johnston v. City of New York, 18 A.D.3d 712, 713, 794 N.Y.S.2d 924;  cf. Cohen v. Schachter, 51 A.D.3d 847, 848, 857 N.Y.S.2d 727).   Accordingly, the Supreme Court properly denied those branches of Verizon's motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.