Frazier v City of New York

2024 NY Slip Op 32543(U)

July 23, 2024

Supreme Court, New York County

Docket Number: Index No. 452684/2022

Judge: Hasa A. Kingo

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 138 

INDEX NO. 452684/2022 

RECEIVED NYSCEF: 07/23/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. HASA A. KINGO PART 05M 

Justice 

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REGINALD FRAZIER, 

Plaintiff, 

- V -

CITY OF NEW YORK, CONSOLIDATED EDISON, 

INC.,CONSOLIDATED EDISON COMPANY OF NEW 

YORK, INC.,WELSBACH ELECTRIC CORP., E-J 

ELECTRIC LLC,RESTANI CONSTRUCTION CORP., 

RAMON GARRIDO, 

Defendant. 

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E-J ELECTRIC LLC 

Plaintiff, 

-againstNICO ASPHALT PAVING INC., CITYWIDE PAVING INC. 

Defendant. 

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INDEX NO. 

MOTION DATE 

452684/2022 

02/09/2024, 

03/29/2024 

MOTION SEQ. NO. __ 0_0_2_0_0_3 __ 

DECISION + ORDER ON 

MOTION 

Third-Party 

Index No. 595255/2023 

The following e-filed documents, listed by NYSCEF document number (Motion 002) 80, 81, 82, 83, 84, 

85, 86, 87, 88, 89, 90, 91, 92, 95, 116, 122, 124, 126, 128, 129, 130, 133, 135, 136 

were read on this motion for SUMMARY JUDGMENT 

The following e-filed documents, listed by NYSCEF document number (Motion 003) 96, 97, 98, 99, 100, 

101,102,103,104,105,106,107,108,109,110,111,112,113,114,115,117,118,119,120,121,123, 

125, 127, 131, 132, 134 

were read on this motion for SUMMARY JUDGMENT 

Plaintiff Reginald Frazier ("Plaintiff') initiated this action against defendants City of New 

York, Con Edison, Welsbach Electric Corp., E-J Electric LLC ("E-J Electric"), Restani 

Construction Corp., and Ramon Garrido, following an incident on August 5, 2020, where Plaintiff 

tripped and fell due to a pothole in the intersection of Dyckman Street and Broadway in New York 

County, and was subsequently assaulted by Garrido. E-J Electric, in tum, filed a third-party 

complaint against Nico Asphalt Paving Inc. and Citywide Paving Inc. ("Nico Asphalt and Citywide 

Paving"), seeking indemnification and related relief. 

452684/2022 REGINALD FRAZIER vs. CITY OF NEW YORK ET AL. 

Motion No. 002 003 

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NYSCEF DOC. NO. 138 

ARGUMENTS 

INDEX NO. 452684/2022 

RECEIVED NYSCEF: 07/23/2024 

By Motion Seq. 002, Nico Asphalt and Citywide Paving move for summary judgment, 

arguing that they did not own, operate, control, maintain, or perform any work at the location of 

Plaintiffs accident prior to the incident. They assert that their involvement was limited to work 

within four feet of the sidewalk curbs and crosswalks at the intersection, far from where the 

accident occurred. They further argue that their contractual obligations to E-J Electric did not 

extend to the area of the incident and, therefore, they cannot be found liable. 

In opposition, E-J Electric contends that summary judgment is premature as there are 

outstanding discovery issues, including depositions. E-J Electric maintains that Nico and 

Citywide's work, which concluded in 2016, might still be relevant to the condition of the 

intersection at the time of Plaintiffs accident. 

Separately, by Motion Seq. 003, E-J Electric seeks summary judgment to dismiss 

Plaintiffs complaint and all cross-claims against it. Alternatively, it seeks summary judgment on 

its third-party claims against Nico Asphalt and Citywide Paving. E-J Electric argues that it did not 

owe a duty to Plaintiff, did not cause or create the defect, and had no actual or constructive notice 

of any defect. E-J Electric further argues that its work concluded in 2016, well before Plaintiffs 

accident in 2020. 

Plaintiff opposes this motion (Motion Seq. 003), arguing that E-J Electric' s work may have 

contributed to the dangerous condition and that summary judgment is premature pending 

depositions. Plaintiff emphasizes that E-J Electric retained Nico and Citywide for final roadway 

restoration, which might implicate E-J Electric in the defective condition of the roadway. 

DISCUSSION 

A motion for summary judgment "shall be granted if, upon all the papers and proofs 

submitted, the cause of action or defense shall be established sufficiently to warrant the court as a 

matter of law in directing judgment in favor of any party" (CPLR § 3212[b ]). The proponent must 

demonstrate that there are no material issues of fact in dispute and that it is entitled to judgment as 

a matter oflaw (Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [I st Dept 2007]). The movant' s 

burden is heavy, and on such motions, facts must be viewed in the light most favorable to the nonmoving party (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 

470,475 [2013]). 

Summary judgment is inappropriate where facts are in dispute, conflicting inferences can 

be drawn, or issues of credibility exist (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010]). It is 

also premature when further discovery is necessary (Mason v City of New York, 121 AD3d 468 

[1st Dept 2014]; Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]). 

Likewise, a motion for summary judgment is premature when the issues it raises necessitate 

further discovery that has not yet been completed, especially when depositions and physical 

examinations of the Plaintiff remain outstanding (see Mason v. City of New York, 121 AD3d 468 

[1st Dept 2014]; see also Blech v. West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]). 

452684/2022 REGINALD FRAZIER vs. CITY OF NEW YORK ET AL. 

Motion No. 002 003 

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NYSCEF DOC. NO. 138 

Nico Asphalt and Citywide Paving's Motion 

INDEX NO. 452684/2022 

RECEIVED NYSCEF: 07/23/2024 

Here, Nico Asphalt and Citywide Paving have failed to meet their prima facie burden. They 

did not adequately address the scope of their work and its potential impact on the area where the 

incident occurred. Furthermore, they did not sufficiently refute E-J' s contractual indemnification 

claims or address the failure to procure insurance. The potential relevance of their work to the 

condition of the intersection, their contractual relationships, and the outstanding discovery, 

including depositions, warrant a denial of summary judgment. Additionally, issues regarding 

indemnification and the procurement of insurance have not been conclusively resolved. 

Given the complexity of the issues and the need for further discovery, particularly 

depositions, granting summary judgment at this stage is premature. The facts surrounding the 

condition of the intersection and the work performed by Nico Asphalt and Citywide Paving remain 

in dispute. Accordingly, Nico Asphalt and Citywide Paving's motion is denied. 

E-J Electric's Motion 

E-J Electric similarly failed to meet its prima facie burden and demonstrate an absence of 

material issues of fact. Although E-J Electric presents evidence indicating that its work primarily 

involved the installation of pedestrian signals, it also acknowledges hiring Nico Asphalt and 

Citywide Paving for roadwork. Crucially, E-J Electric does not argue that it cannot be held liable 

for the negligence of an independent contractor, which leaves open the possibility of vicarious 

liability. 

E-J Electric offers the affidavit of its executive vice president, David Ferguson, asserting 

that no work was performed in the accident area. However, Ferguson's affidavit cannot serve as 

the sole basis for summary judgment, especially absent the opportunity to depose him regarding 

the specifics of his statements. Ferguson's claim that E-J Electric did no work in the area of the 

accident conflicts with records showing that E-J Electric was present in the same general area 

installing pedestrian signals four years earlier, and performed final roadway restoration as part of 

their contract with the City of New York. 

E-J Electric fails to provide affirmative evidence demonstrating how the work was 

completed and whether it adhered to industry standards. E-J Electric provides no details regarding 

the creation of the dangerous condition, the nature of the defect, or any expert testimony asserting 

that the work performed could not have contributed to the hazardous state of the roadway. E-J 

Electric' s reliance on counsel's opinion that the work was "too far" from the incident location is 

insufficient without substantiating evidence. 

A critical question remains as to whether the area was left safe and level after E-J Electric' s 

project was completed. According to Espinal v. Melville Construction, 98 NY2d 136 (2002), a 

contractor's duty to a third party may extend to conditions created by their work. Affording 

Plaintiff every favorable inference, it is reasonable to infer that the roadwork performed by E-J 

Electric or its agents might have contributed to the unevenness of the roadway where Plaintiff 

sustained injury. 

452684/2022 REGINALD FRAZIER vs. CITY OF NEW YORK ET AL. 

Motion No. 002 003 

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NYSCEF DOC. NO. 138 

INDEX NO. 452684/2022 

RECEIVED NYSCEF: 07/23/2024 

Plaintiff has not had the opportunity to depose a witness regarding the full extent of the 

work done at the intersection four years prior, and a self-serving affidavit and work logs do not 

suffice to eliminate material issues of fact. E-J Electric has provided edited maps and self-serving 

testimony regarding the parameters of the work, which are precisely the type of materials suitable 

for deposition. 

Summary judgment is inappropriate at this juncture, as the deposition process is essential 

to determine whether E-J Electric's actions contributed to the dangerous condition at issue. 

Dismissal of the claims against E-J Electric before further discovery and examination of their 

evidence is premature. 

Based on the foregoing, Nico Asphalt and Citywide Paving's motion for summary 

judgment is denied as premature and for failing to meet their burden. Separately, E-J Electric's 

motion for summary judgment is also denied as premature and for failing to meet its burden. 

Accordingly, it is 

ORDERED that the motion of Nico Asphalt and Citywide Paving for summary judgment 

is denied, with leave to renew following the completion of discovery; and it is further 

ORDERED that the motion ofE-J Electric for summary judgment is denied, with leave to 

renew following the completion of discovery. 

This constitutes the decision and order of the court. 

7/23/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

452684/2022 REGINALD FRAZIER vs. CITY OF NEW YORK ET AL. 

Motion No. 002 003 

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HASAA. KIN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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