BALK v. Howard's Tree Service Inc., Defendant Third-Party Defendant-Appellant.

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

Laura BALK, et al., Plaintiffs-Respondents, v. CITY OF NEW YORK, et al., Defendants-Respondents, Halcyon Construction Corp., Defendant Third-Party Plaintiff-Respondent, Howard's Tree Service Inc., Defendant Third-Party Defendant-Appellant.

Decided: September 29, 1997

Before COPERTINO, J.P., and THOMPSON, FRIEDMANN and FLORIO, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Edward J. O'Gorman and Angelo Rios, of counsel), for defendant third-party defendant-appellant. Kwiatkowski & Ryan, Floral Park, (John E. Ryan and John Donnelly, of counsel), for plaintiffs-respondents. Richard W. Babinecz, New York City (Maura A. Kilroy, of counsel), for defendant-respondent Consolidated Edison Company of New York, Inc.

In an action to recover damages for personal injuries, etc., the defendant third-party defendant, Howard's Tree Service Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated June 13, 1996, as denied its motion for summary judgment dismissing (1) the complaint and all cross claims insofar as asserted against it, and (2) the third-party complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the appellant's motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellant, the third-party complaint is dismissed, and the action against the remaining defendants is severed.

 Summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068).   However, mere conclusions or unsupported assertions are insufficient to raise a question of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, Cruz v. City of New York, 207 A.D.2d 858, 616 N.Y.S.2d 986).

 Here, there are only conclusory and speculative allegations linking the appellant to the defective concrete sidewalk which, it is alleged, caused the plaintiff Laura Balk to fall.   There was no proof adduced that the appellant did any more than cut down a tree in the area between the defective sidewalk and the curb.   No competent evidence was adduced which raises a factual question as to whether or not the appellant broke up or damaged the adjacent sidewalk (see, Blake v. City of Albany, 48 N.Y.2d 875, 424 N.Y.S.2d 358, 400 N.E.2d 300;  Cruz v. City of New York, supra).

The plaintiffs' remaining contentions are either without merit or are not properly before this court.


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