### 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 NEWYORK 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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MOTION DATE 452684/2022 02/09/2024, 03/29/2024 MOTION SEQ. NO.
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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 PlaintiffReginald Frazier ("Plaintiff') initiated this action against defendants City ofNew 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 apothole in the intersection ofDyckman Street and Broadwayin New York County, and was subsequently assaulted by Garrido. E-J Electric, in tum, filed a third-party complaint againstNico AsphaltPavingInc. and CitywidePavingInc. ("NicoAsphaltand 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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### [* 1]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 summaryjudgment, 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 ofthe 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 ofPlaintiffs 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 summaryjudgment on its third-party claims againstNico Asphalt and Citywide Paving. E-J Electric argues thatit didnot owe a duty to Plaintiff, did not cause or create the defect, and had no actual or constructive notice ofany defect. E-J Electric further argues that its work concluded in 2016, well before Plaintiffs accident in 2020. Plaintiffopposes this motion (Motion Seq. 003), arguing thatE-JElectric'sworkmayhave contributed to the dangerous condition and that summary judgment is premature pending depositions. Plaintiffemphasizes that E-J Electric retained Nico and Citywide for final roadway restoration, which might implicate E-J Electric in the defective condition ofthe roadway. DISCUSSION A motion for summary judgment "shall be granted if, upon all the papers and proofs submitted, the cause ofaction or defense shall be established sufficiently to warrant the court as a matter oflawin directingjudgmentin favor ofany party" (CPLR § 3212[b]). The proponent must demonstrate that there are no material issues offact in dispute and thatitis entitledtojudgmentas amatteroflaw(Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [IstDept2007]). The movant's burden is heavy, and on such motions, facts mustbe viewedin the lightmost favorable to the nonmoving party (William J. Jenack EstateAppraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470,475 [2013]). Summaryjudgmentis inappropriate where facts are in dispute, conflicting inferences can be drawn, orissues ofcredibility 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 AD3d468 [1st Dept 2014]; Blech v West ParkPresbyt. Church, 97 AD3d 443 [1st Dept 2012]). Likewise, amotion for summaryjudgmentisprematurewhentheissuesitraisesnecessitate further discovery that has not yet been completed, especially when depositions and physical examinations ofthe Plaintiffremain outstanding (see Mason v. City of New York, 121 AD3d 468 [1st Dept 2014]; seealso Blech v. WestParkPresbyt. Church, 97 AD3d443 [1st Dept 2012]).

452684/2022 REGINALD FRAZIER vs. CITY OF NEW YORK ET AL. Motion No. 002 003

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### [* 2]NYSCEF DOC. NO. 138

Nico Asphalt and Citywide Paving's Motion INDEX NO. 452684/2022 RECEIVED NYSCEF: 07/23/2024

Here, Nico Asphalt and CitywidePavinghave failed to meettheirprimafacie burden. They did not adequately address the scope oftheir 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 oftheir 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 ofinsurance have notbeen 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 ofthe intersection and the workperformedbyNico Asphalt and CitywidePavingremain 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 offact. 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 ofits 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 summaryjudgment, especially absent the opportunity to depose him regarding the specifics ofhis statements. Ferguson's claim that E-J Electric did no work in the area ofthe 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 ofNew York. E-J Electric fails to provide affirmative evidence demonstrating how the work was completed and whetherit adhered to industry standards. E-J Electric provides no details regarding the creation ofthe dangerous condition, the nature ofthe defect, or any expert testimony asserting that the work performed could not have contributed to the hazardous state ofthe 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 whetherthe area was left safe and level afterE-JElectric'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 Plaintiffevery favorable inference, it is reasonable to infer that the roadwork performed by E-J Electric or its agents might have contributed to the unevenness ofthe roadway where Plaintiff sustained injury.

452684/2022 REGINALD FRAZIER vs. CITY OF NEW YORK ET AL. Motion No. 002 003
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### [* 3]NYSCEF DOC. NO. 138 INDEX NO. 452684/2022 RECEIVED NYSCEF: 07/23/2024



### Plaintiffhas not had the opportunity to depose a witness regarding the full extent ofthe work done at the intersection four years prior, and a self-serving affidavit and work logs do not suffice to eliminate material issues offact. E-J Electric has provided edited maps and self-serving testimonyregarding the parameters ofthe work, which are preciselythe type ofmaterials suitable for deposition. Summaryjudgment is inappropriate at thisjuncture, as the deposition process is essential to determine whether E-J Electric's actions contributed to the dangerous condition at issue. Dismissal ofthe claims against E-J Electric before further discovery and examination oftheir 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 summaryjudgmentis also denied as premature and for failing to meet its burden. Accordingly, itis ORDERED that the motion ofNico Asphalt and Citywide Paving for summaryjudgment is denied, with leave to renew following the completion ofdiscovery; anditis further ORDERED that the motion ofE-JElectric for summaryjudgmentis denied, with leave to renew following the completion ofdiscovery. This constitutes the decision and order ofthe 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

4 of 4 HASAA. KIN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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