Corprew v. City of N.Y.

• Decision Date: 16 May 2013
• Citation: 2013 N.Y. Slip Op. 03555,106 A.D.3d 524,965 N.Y.S.2d 108
• Parties: Jada CORPREW, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants, Chelmsford Contracting Corp., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 524
965 N.Y.S.2d 108
2013 N.Y. Slip Op. 03555

Jada CORPREW, Plaintiff–Appellant,
v.
CITY OF NEW YORK, et al., Defendants,
Chelmsford Contracting Corp., Defendant–Respondent.

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

May 16, 2013.

[965 N.Y.S.2d 109]

Mirman, Markovits & Landau, P.C., New York (David Bloom of counsel), for appellant.

Carlucci & Giardina, LLP, New York (Don D. Carlucci of counsel), for respondent.

MAZZARELLI, J.P., SAXE, MOSKOWITZ, MANZANET–DANIELS, JJ.

[106 A.D.3d 524]Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered October 24, 2012, which granted defendant Chelmsford Contracting Corp.'s motion for summary judgment dismissing the claims and any cross claims against it, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff alleges that she was injured when she stepped into a hole in the street next to the sidewalk curb, which had been installed by defendant Chelmsford one to four months earlier. Chelmsford had been retained by the City to install new pedestrian ramps in various locations, and had obtained a street opening permit for each site. In support of its motion for summary judgment, Chelmsford relied on the testimony of its project manager that the City had signed off on its work, and argued that it was therefore free of liability. However, in order to be entitled to summary judgment dismissing the complaint, Chelmsford was required to establish prima facie that it did not cause or create the hole that allegedly caused plaintiff's fall ( see Garcia v. City of New York, 99 A.D.3d 491, 952 N.Y.S.2d 133 [1st Dept. 2012];Shechter v. City of New York, 17 A.D.3d 124, 125, 792 N.Y.S.2d 437 [1st Dept. 2005];Field v. City of New York, 302 A.D.2d 223, 753 N.Y.S.2d 719 [1st Dept. 2003] ). The City's acceptance of Chelmsford's work did not immunize it from liability, if it created the defect ( see Brown v. Welsbach Corp., 301 N.Y. 202, 93 N.E.2d 640 [1950] ). Nor was it entitled to summary judgment because the work was completed a month to four months before the accident ( see Hayes v. DeMicco Bros., Inc., 34 A.D.3d 641, 825 N.Y.S.2d 116 [2d Dept. 2006] ).

[106 A.D.3d 525]Defendant's failure to make such an initial showing requires the denial of the motion regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). In any event, the motion court should not have...