McCleery v. Consolidated Edison of New York, Inc.

Defendants (Con Ed) made out a prima facie case of entitlement to summary judgment by submitting the deposition testimony of several individuals who were present at the accident location, none of whom knew how plaintiff sustained injury. They did not see the Con Ed vehicle run over plaintiffs foot, nor did they observe any displacement of the 8 to 12 orange cones set up around plaintiffs truck as he threaded a length of gas pipe held in a vise attached to the rear of the vehicle.

Even if the evidence submitted by plaintiff in opposition to the motion had been sufficient to raise a question concerning how the accident occurred, in the absence of any proof as to how plaintiff sustained his injury, it failed to raise a triable issue of fact with respect to the alleged negligent operation of the Con Ed vehicle (see Saborido-Calvo v New York City Tr. Auth., 11 AD3d 216 [2004]). Plaintiffs inability to relate the manner in which the accident occurred does not relieve him of the burden to set forth a prima facie case by demonstrating that defendants’ “negligence was ‘a substantial cause of the events which produced the injury’ ” (Lynn v Lynn, 216 AD2d 194, 195 [1995], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Concur—Tom, J.P., Friedman and McGuire, JJ.