PEREZ v. <<

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Supreme Court, Appellate Division, First Department, New York.

Luis T. PEREZ, Plaintiff-Appellant, v.

MORSE DIESEL, INC., Defendant-Respondent/Third-Party Plaintiff-Respondent, v. The Bronx-Lebanon Hospital Center, Inc., Third-Party Defendant-Respondent.

Decided: February 25, 1999

ROSENBERGER, J.P., ELLERIN, WILLIAMS and ANDRIAS, JJ. Alexander J. Wulwick, for Plaintiff-Appellant. Carol R. Finocchio, for Defendant-Respondent/Third-Party Plaintiff-Respondent. Brenda L. Cohen, for Third-Party Defendant-Respondent.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered February 27, 1998, which, inter alia, granted defendant/third-party plaintiff's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant Morse Diesel satisfied its burden of proof that it owed no duty to plaintiff and that its alleged negligence was not a proximate cause of plaintiff's injuries.   Defendant's submissions, corroborated by the Hospital, established that neither it or its subcontractors performed work in the immediate vicinity of plaintiff's accident, that it completed its work six months before the accident occurred and removed its own debris from the premises at that time, and that the maintenance, repair and/or resurfacing of the patio where plaintiff slipped on an ice covered piece of plywood was not within its contractual obligations (see, Long v. Danforth Co., 236 A.D.2d 781, 653 N.Y.S.2d 772;  see also, Manson v. Consol. Edison Co. of New York, 220 A.D.2d 374, 633 N.Y.S.2d 138).   Plaintiff failed to rebut the foregoing through evidentiary proof in admissible form sufficient to require a trial of material questions of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiff's claim that defendant's installation of a gas line in the general vicinity supports a conclusion that defendant left the plywood on the patio is speculative (see, Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743, 500 N.Y.S.2d 95, 490 N.E.2d 1221;  Silva v. Village Square of Penna, Inc., 251 A.D.2d 944, 674 N.Y.S.2d 873).

We have considered and rejected plaintiff's other arguments.


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