PINA v. NEW YORK PAVING INC

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

Jaime PINA, Plaintiff-Appellant, v. NEW YORK PAVING, INC., et al., Defendants-Respondents.

Decided: November 23, 1999

SULLIVAN, J.P., ROSENBERGER, LERNER, RUBIN and ANDRIAS, JJ. Sal A. Spano, for Plaintiff-Appellant. William D. Buckley, Helman R. Brook, for Defendants-Respondents.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 28, 1998, which granted defendants-respondents' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The action was properly dismissed as against defendants-respondents for lack of evidence tending to show that either did any work that could have created or exacerbated the defect in the curb that caused plaintiff to trip.   Defendants owed no duty to the general public to make repairs to an existing defect near their work site, which defect had nothing to do with the work they contracted to perform.   In the absence of a duty there can be no liability for negligence (see, Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019).   Plaintiff's claims based on defendants-respondents' alleged violations of various rules and regulations pertaining to restoration of street openings and sidewalk and curb maintenance are improperly raised for the first time on appeal, and, in any event, are without merit.

MEMORANDUM DECISION.