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On 2004, a plaintiff was injured when she tripped and fell over a metal construction plate

On 2004, a plaintiff was injured when she tripped and fellover a metal construction plate while walking along the roadway located at 400 East 57th Street. The Plaintiff commenced a suit for personal injuries on or about September 2005. Her verified complaint named four defendants and co-defendants in the action. These includes the City of New York (Defendant A), a major owner and operator of leading power distribution lines in New York (Defendant B), a highway/street paving contractor (Defendant C) and a masonry contractor company (Defendant D).

In May 2006, Defendant B filed a third-party complaint, impleading Defendant D and Defendant C as third-party defendants in the action. Defendant B, in its third-party complaint seeks to recover against Defendants C and D for breach of contract and negligence causes of action. Defendant B seeks an agreement not to be sued from both third-party defendants in accordance with the parties’ construction contracts.

By interim decision and order dated September 5, 2007, the court granted, without opposition, the Defendant C’s motion for summary judgment and dismissed the complaint and any cross claims dismissed against Defendant C. At that time, each party files a motion on the same issue and as part of the same process for summary judgment and part of a pre-trial process in which both parties submit briefs to the judge, arguing that no trial is needed to determine the relevant facts in the case.

Cross-motions for summary judgment may occur even if the parties have different versions of the facts and are to be distinguished from agreed motions for summary judgment in which the parties present one, agreed motion, claiming that the facts are not in dispute and asking the judge for a decision solely on the law. In that event, both motions will be denied.

Defendant D’s cross-motion for summary judgment was held in undetermined pending completion of an examination before trial of two witnesses to be produced by Defendant B. The transcripts of those depositions have now been provided to the court and considered in reaching this decision. For the reasons set forth below, the Defendant D’s cross-motion for summary judgment is granted and the complaint and any cross claims dismissed as against Defendant D.

In June 2006, plaintiff amended the complaint to add both Defendants C and D as direct defendants in the action. Defendant C then moved for dismissal from the direct action on the ground that the complaint failed to state a cause of action as there was nothing to show it had done any work at the location of plaintiff’s accident. As already explained, that motion was previously granted without opposition.

Defendant D cross-moved for summary judgment on the ground that it is not a proper defendant in this action because it did not own the metal plate that caused plaintiff’s injury; specifically Defendant D contends that any metal plates that it used in connection with the work performed at the site of plaintiffs trip and fall were removed more than a month prior to the date of accident. Defendant B initially opposed the cross-motion for summary judgment on the ground that discovery concerning material questions of fact, which may involve Defendant D, remain outstanding. However, the issues of outstanding discovery have been addressed at the September 5, 2007, October 17 and 24, 2007 appearances on this motion. Two more depositions of Defendant B witnesses have been completed and the transcripts submitted to the court.

According to the decedent’s testimony at her hearing, she tripped on a raised metal plate located in the middle of the First and York Avenues. Defendant B requested permits from the City to perform work in this vicinity and the City issued permits to Defendant B and another permit for the purpose of opening the street on 57th Street. Defendant D performs contracting work for Defendant B, including installation of underground facilities, sidewalk restoration, and street plating.

Some records show that the street was cut open by Defendant D at the intersection of First Avenue and East 57th Street and backfilled. Other records show a cut was made in the traffic lane on East 57th Street between First Avenue and York Avenue with the backfill being completed. This cut was not made by Defendant D, and no paving was required for completion of the job.

According to Defendant B’s records searcher, a complaint was called in to them to report shifted plates with exposed excavation at the intersection of East 57th Street and First Avenue. The call requested urgent assistance with regard to the matter. Defendant B contends that its steam crew employees responded to a complaint of a shifted road plate, and those employees reported that, the plates at this location were marked with the initials. Defendant B’s records do not indicate what work was done in connection to the complaint. Another complaint was called in by a restaurant.

On September 11, 2007, Defendant B produced one of its Senior Coordinators, for a deposition. This witness testified that the lead mechanic responded to the complaint. Defendant B then produced the lead mechanic for testimony. He was one of the workers who responded to the telephone complaint of a shifted road plate. The lead mechanic testified that he does not recall being near the corner of East 57th Street and First Avenue within six months before the date of the accident. A man testified from the emergency control ticket, which contains information based on the lead mechanic’s report, stated that the plates at the location were marked with the letters corresponding to Defendant D’s initials.

There is a requirement for subcontractors who plate streets to use an identifying marker on their construction plates. Each metal plate has marks on it bearing some type of lettering that indicates the name of the company that owns the plate. Here, according to the testimony of Defendant C’s witness, the man from control ticket, it is not entirely clear whether the initials on the construction plate on which plaintiff tripped were its initials.

According to the testimony of Defendant D’s President, Defendant D marks its initials on each of its metal plates by way of raised welding. He further testified that it is clear from looking at the photographs of the plate that the plate identified in the photograph is not their plate. According to the President of MECC, that company does not permit its metal plates to be used by other contractors in connection with the work. It is the custom and practice of Defendant D to immediately remove its plates upon completion of the work.

The moving party must produce evidence to conclude that summary judgment should be granted in her favor. The evidence will be construed in the light most favorable to the moving party. Once the moving party has met its burden, and demonstrates its entitlement to summary judgment, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring trial. A party’s bare allegations are insufficient to create a genuine issue of fact, and thus, defeat summary judgment. A party will not succeed in defeating summary judgment where it offers only surmises, suspicions or conjectures that are unsupported by evidence.

Generally, liability for a dangerous or defective condition on property is hinged upon establishing ownership, control or special use of the property. While ownership of the metal construction plate has not been fully established, the documentary evidence submitted shows that Defendant D is not the owner of the plate, and as such, did not cause or create the defect which allegedly caused the plaintiff to fall.

Both Defendant B and D acknowledge performing work at 400 East 57th Street and First Avenue. The records witness produced on behalf of Defendant B, a woman, testified that a complaint was called in by a concerned citizen to repair shifted plates that resulted in exposed excavation on the street in front of at 400 East 57th Street and First Avenue. Importantly, Defendant B witnesses only place the Defendant D’s plates at the scene when the evidence shows they were removed. The photographs do not show Defendant D’s initials and the witness testified that another complaint was made, just six days before plaintiff’s accident, for gas access at the same location, but provided no record of the actual work performed.

In other words, while it may not be clear whose plate it was that caused plaintiff to fall, Defendant D has produced competent evidence excluding it as the owner. Photographs may be taken as a fair and accurate representation of the place of the accident or the accident-causing instrumentality at the time of the occurrence. In this case, the photographs, one in particular, shows that the initials on the metal construction plate that allegedly caused plaintiff to fall begin with the letters of Defendant D. This photograph makes clear that the initials on the plate in question are not of Defendant D’s. The deposition testimonies of Defendants C and D further support this conclusion.

The deposition testimony of the Defendant B witnesses that Defendant D’s plates were at the site in October does not contradict the evidence that the Defendant D plates were removed before the accident date. This is particularly true given the testimony of the Defendant D’s witness, in conjunction with the photographs marked by the City. In short, the evidence sufficiently supports Defendant D’s position that its plate was not at issue.

Defendant B’s original contention that summary judgment should be denied on the basis that further discovery is necessary to ascertain ownership of the metal plate now lacks merit inasmuch as the court held the motion in abeyance for the outstanding Defendant B’s depositions. In holding the mere hope that further discovery will uncover evidence to defeat summary judgment is not sufficient to deny a party its motion for summary judgment. Upon a thorough review of the two additional deposition transcripts, the evidence is still insufficient to connect Defendant D to ownership of the plate at issue. Further, the court finds that the evidence submitted by Defendant B in opposition to Defendant D’s cross-motion for summary judgment, which consisted primarily of photographs and an excerpt of the plaintiff’s deposition testimony, do not create a material issue of fact as to whether Defendant D’s plate was at the site of plaintiff’s accident.

The court ordered the cross-motion by Defendant D for summary judgment is granted and the complaint and all cross-claims and counterclaims against it are dismissed with costs and disbursements to the Defendant D, it also ordered that the action is severed and continued as against the Defendants A and B, and it further ordered that the caption shall be amended to reflect the dismissal of the complaint as against Defendant C and Defendant D, and that the movant shall serve a copy of the decision and order on all parties.

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