On August 29, 2008 a
Order
was filed
involving a dispute between
Lisa Sanchez,
Luis Sanchez,
and
City Of New York,
Consolidated Edison, Inc.,
Nico Asphalt, Inc.,
Rite-Way Subsurface Corp.,
Safeway Construction Enterprises, Inc,
for Tort
in the District Court of New York County.
Preview
INDEX NO. 400035/2008
(FILED: NEW YORK COUNTY CLERK 10/06/2010)
NYSCEF DOC. NO. RECEIVED NYSCEF: 10/06/2010
SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNTY
PRESENT: CYNTHIA S, KERN part _5 2
‘Justice.
Index Number : 400035/2008
| SANCHEZ, LUIS INDEX NO.
400035)
| RITE-WAY SUBSURFACE MOTION DATE
oo3
Sequence Number : 003 MOTION SEQ. NO.
| DISMISS ACTION MOTION CAL. NO.
|
\ = his motion to/for
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ...
Answering Affidavits — Exhibits
Replying Affidavits
Cross-Motion: A Yes (1 No
Upon the foregoing papers, it is ordered that this motion g~2 cide)
in acerdomes
we
of
no
2a
790
ou
Fw
az
we
fea
fo
we
NYS SUPREME COURT
RECEIVED
ocT 05 2010
MOTION SUPPORT OFFICE
Dated: voll ye
CYNTHIAS. KERN ¥-5.¢.
Check one: C] FINAL DISPOSITION x NON-FINAL DISPOSITION
Check if appropriate: (J DO NOT POST (J REFERENCE
[_] SUBMIT ORDER/JUDG. [_] -SETTLE ORDER /JUDG.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: Part 52
--
LuIs SANCHEZ and LISA SANCHEZ,
Plaintiffs, Index No. 400035/08
-against- DECISION/ORDER
RITE-WAY SUBSURFACE CORP., CONSOLIDATED
EDISON, INC., SAFEWAY CONSTRUCTION ENTERPRISES,
INC., NICO ASPHALT, INC. and THE CITY OF NEW YORK,
Defendants.
wane nen enn nn nec nnn n nnn nn ene e ene X
HON. CYNTHIA S. KERN, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion
for :
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Notice of Cross Motion and Answering Affidavit 2.3
Affirmations in Opposition to the Cross-Motio: 4
Replying Affidavits. . 5.
Exhibits.
Plaintiff Luis Sanchez commenced the instant action to recover damages for personal
injuries that he allegedly sustained when his scooter hit a patch of loose gravel as he attempted to
avoid a pothole in the roadway in front of 142-146 West 31* Street on October 2, 2004.
Defendant Safeway Construction Enterprises, Inc. (“Safeway”) now moves for summary
judgment dismissing the complaint and any cross-claims against it on the ground that there is no
evidence that it created the alleged defect or that it was the proximate cause of plaintiff's
-l-
Inc. have
accident. Defendants Consolidated Edison, Inc. (“Con Edison”) and Nico Asphalt,
brought cross motions for summary judgment on the same ground as Safeway. For the reasons
set forth below, defendants’ motion and cross motions are denied without prejudice to
resubmission after the deposition of the City takes place.
d in
One of the issues to be decided on this motion is whether the trench that collapse
trench.
2004 involved a New York City DEP trench or whether it involved a Con Edison
a DEP trench
Although Con Edison has submitted evidence that the trench which collapsed was
rather than a Con Edison trench, it would be inappropriate for the court to make a summary
York
determination as to that issue without there first being a deposition of the City of New
d was a DEP
where the City witness can be questioned as to whether the trench that collapse
trench or a Con Edison trench.
prejudice to
Based on the foregoing, the motion and cross motions are denied without
utes the decision
resubmission after discovery with respect to the City is completed. This constit
and order of the court.
Dated: 0 lhe Enter: g Ne
JS.C.
CYNTHIA S. KERN
2-
Document Filed Date
October 06, 2010
Case Filing Date
August 29, 2008
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INDEX NO. 400035/2008 (FILED: NEW YORK COUNTY CLERK 10/06/2010) NYSCEF DOC. NO. RECEIVED NYSCEF: 10/06/2010 SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNTY PRESENT: CYNTHIA S, KERN part _5 2 ‘Justice. Index Number : 400035/2008 | SANCHEZ, LUIS INDEX NO. 400035) | RITE-WAY SUBSURFACE MOTION DATE oo3 Sequence Number : 003 MOTION SEQ. NO. | DISMISS ACTION MOTION CAL. NO. | \ = his motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... Answering Affidavits — Exhibits Replying Affidavits Cross-Motion: A Yes (1 No Upon the foregoing papers, it is ordered that this motion g~2 cide) in acerdomes we of no 2a 790 ou Fw az we fea fo we NYS SUPREME COURT RECEIVED ocT 05 2010 MOTION SUPPORT OFFICE Dated: voll ye CYNTHIAS. KERN ¥-5.¢. Check one: C] FINAL DISPOSITION x NON-FINAL DISPOSITION Check if appropriate: (J DO NOT POST (J REFERENCE [_] SUBMIT ORDER/JUDG. [_] -SETTLE ORDER /JUDG. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 52 -- LuIs SANCHEZ and LISA SANCHEZ, Plaintiffs, Index No. 400035/08 -against- DECISION/ORDER RITE-WAY SUBSURFACE CORP., CONSOLIDATED EDISON, INC., SAFEWAY CONSTRUCTION ENTERPRISES, INC., NICO ASPHALT, INC. and THE CITY OF NEW YORK, Defendants. wane nen enn nn nec nnn n nnn nn ene e ene X HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for : Papers Numbered Notice of Motion and Affidavits Annexed 1 Notice of Cross Motion and Answering Affidavit 2.3 Affirmations in Opposition to the Cross-Motio: 4 Replying Affidavits. . 5. Exhibits. Plaintiff Luis Sanchez commenced the instant action to recover damages for personal injuries that he allegedly sustained when his scooter hit a patch of loose gravel as he attempted to avoid a pothole in the roadway in front of 142-146 West 31* Street on October 2, 2004. Defendant Safeway Construction Enterprises, Inc. (“Safeway”) now moves for summary judgment dismissing the complaint and any cross-claims against it on the ground that there is no evidence that it created the alleged defect or that it was the proximate cause of plaintiff's -l- Inc. have accident. Defendants Consolidated Edison, Inc. (“Con Edison”) and Nico Asphalt, brought cross motions for summary judgment on the same ground as Safeway. For the reasons set forth below, defendants’ motion and cross motions are denied without prejudice to resubmission after the deposition of the City takes place. d in One of the issues to be decided on this motion is whether the trench that collapse trench. 2004 involved a New York City DEP trench or whether it involved a Con Edison a DEP trench Although Con Edison has submitted evidence that the trench which collapsed was rather than a Con Edison trench, it would be inappropriate for the court to make a summary York determination as to that issue without there first being a deposition of the City of New d was a DEP where the City witness can be questioned as to whether the trench that collapse trench or a Con Edison trench. prejudice to Based on the foregoing, the motion and cross motions are denied without utes the decision resubmission after discovery with respect to the City is completed. This constit and order of the court. Dated: 0 lhe Enter: g Ne JS.C. CYNTHIA S. KERN 2-