MCGEE v. Deboe Construction Corp., respondent. (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered March 1, 2017.  The order, insofar as appealed from, granted that branch of the motion of the defendant Deboe Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.

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

On July 3, 2014, at about 4:30 p.m., the plaintiff allegedly sustained personal injuries when she tripped and fell over an asphalt patch within a crosswalk in Queens.  The plaintiff commenced this action against the City of New York and Deboe Construction Corp. (hereinafter Deboe Construction), a contractor which had installed water mains for the City. Deboe Construction moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not create the alleged defect.  The Supreme Court granted the motion.  The plaintiff appeals.

A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street (see Brown v. Welsbach Corp., 301 N.Y. 202, 205, 93 N.E.2d 640; Morris v. City of New York, 143 A.D.3d 681, 682, 38 N.Y.S.3d 574; Sand v. City of New York, 83 A.D.3d 923, 925, 921 N.Y.S.2d 312; Cohen v. Schachter, 51 A.D.3d 847, 848, 857 N.Y.S.2d 727).  Here, Deboe Construction established its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating, prima facie, that it did not perform any work in the western portion of the crosswalk where the accident occurred and that it did not create the alleged defect (see Cruz v. Keyspan, 120 A.D.3d 1290, 1291, 992 N.Y.S.2d 549; Walton v. City of New York, 105 A.D.3d 732, 963 N.Y.S.2d 275; Rubina v. City of New York, 51 A.D.3d 761, 762, 857 N.Y.S.2d 713; Cino v. City of New York, 49 A.D.3d 796, 797, 854 N.Y.S.2d 201; Robinson v. City of New York, 18 A.D.3d 255, 256, 794 N.Y.S.2d 378).  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of Deboe Construction's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.