O'Jon v. Consolidated Edison Co. of New York

O'Jon v Brown (2017 NY Slip Op 01292)

O'Jon v Brown

2017 NY Slip Op 01292

Decided on February 16, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2017
Richter, J.P., Manzanet-Daniels, Gische, Webber, Kahn, JJ.

3137 300209/13

[*1]Carmen O'Jon, Plaintiff-Respondent,

v

William Brown, Defendant-Respondent, Consolidated Edison Company of New York, Inc., Defendant, Vales Construction Corp., Defendant-Appellant.

Barry, McTiernan & Moore LLC, White Plains (Laurel A. Wedinger of counsel), for appellant.

Friedman & Simon, L.L.P., Jericho (Marie G. Costello of counsel), for Carmen O'Jon, respondent.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for William Brown, respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 8, 2015, which denied the motion of defendant Vales Construction Corp. (Vales) for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Vales established its entitlement to judgment as a matter of law through the testimony of its corporate secretary that Vales performed no work on the sidewalk in front of the premises where plaintiff claimed she tripped and fell. The corporate secretary denied having found a permit issued to Vales for that location in his search of records, and explained that the issuance of a permit did not necessarily mean that work had been performed at the location.

In opposition, neither plaintiff nor defendant Brown, who was the owner of the building in front of which plaintiff fell, raised a triable issue of fact. They relied on a work order issued to Con Edison several years before the accident, which was not linked to Vales, and failed to submit any other evidence rebutting Vales's prima facie showing (see Bermudez v City of New York, 21 AD3d 258 [1st Dept 2005]; see also Zhilkina v City of New York, 121 AD3d 975 [2nd Dept 2014]). Furthermore, Brown testified that no sidewalk repair work had been performed at the accident location before plaintiff's accident occurred.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2017

DEPUTY CLERK