Frederickson v. City of New York — 151 A.D.3d 497

Majority

p. 497

James Frederickson, Respondent, v City of New York et al., Defendants, and Verizon New York, Inc., et al., Appellants.

[53 NYS3d 539]

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered December 23, 2015, which denied defendants Verizon New York, Inc. and Empire City Subway Company Ltd.’s motion for summary judgment dismissing the complaint and any and all cross claims against them, unanimously modified, on the law, to grant the motion as to Verizon, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of Verizon dismissing the complaint as against it.

The IAS court properly determined in this trip and fall action that issues of fact exist concerning whether an unevenness in the roadway surface caused by the defendants’ work in the area caused plaintiff’s accident (see e.g. Hutchinson v Sheridan Hill House Corp., 26 NY3d 66 [2015]; Glickman v City of New York, 297 AD2d 220 [1st Dept 2002]). However, Verizon made an unrebutted prima facie showing that it has no potential li

p. 498

ability in this matter inasmuch as the plate in question was put in place by its subsidiary, Empire, without the direction or supervision of the parent company. While plaintiff argued in opposition that further discovery was required to determine whether grounds for Verizon’s liability might exist, the order should be modified to dismiss the complaint as against Verizon in view of plaintiff’s having filed a note of issue before taking Verizon’s deposition.

Concur — Friedman, J.P., Gische, Kapnick, Kahn and Gesmer, JJ.

Cases cited

Hutchinson v. Sheridan Hill House Corp. 26 NY3d 66 N.Y. 2015-10-20 p. 497