### Lopez v Brooklyn Union Gas Co. 2024 NY Slip Op 30507(U) February 15, 2024 Supreme Court, Kings County Docket Number: Index No. 504566/2019 Judge: RichardVelasquez Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### [FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ NYSCEF DOC. NO. 152 INDEX NO. 504566/2019 RECEIVED NYSCEF: 02/15/2024

PRESENT: HON. RICHARD VELASQUEZ Justice. At an IAS Term, Part 66 of the Supreme Court ofthe State of New York, held in and for the County of Kings, at the Courthouse, at 

### 360 Adams Street, Brooklyn, New York, on the 15th dayofFEBRUARY 2024



### -----------------------------------------------------------------------------X NALDY LOPEZ, Petitioner(s),-againstTHE BROOKLYN UNION GAS COMPANY, individually and d/b/a NATIONAL GRID NEWYORK and THE HALLEN CONSTRUCTION CO. INC., and NEWYORK PAVING, INC. Respondent(s). 

### ----------------------------------------------------------------------X Index No.: 

### 504566/2019 Decision and Order Mot. Seq. No. 5 & 6

The following papers NYSCEFDoc #'s 83 to 148 read on this motion: Papers Notice ofMotion/Orderto Show Cause Affidavits (Affirmations) Annexed

_________ _ Opposing Affidavits (Affirmations)

________ _ Reply Affidavits

_______________ _ NYSCEFDOC NO. 

### 's 83-107; 110-131 132-135; 137-139; 143 146; 147; 148 After having come before the Court and the Court having heard oral argument on AUGUST2, 2023, and afterconsideringtheforgoing documentsabovefiled in connection with this matterthe court finds as follows: Defendant NEWYORK PAVING, INC. moves pursuantto CPLR 3212forsummary judgment in favor ofdefendantdismissing plaintiffs claims in theirentirety; (b) dismissing co-defendants' cross-claims in their entirety. (MS#S) Plaintiffopposes the same. Plaintiff moves for an Order pursuant to CPLR § 3212, granting plaintiff partial Page 1of5

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### [FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ NYSCEF DOC. NO. 152 INDEX NO. 504566/2019 RECEIVED NYSCEF: 02/15/2024

summaryjudgment on the issue ofliability against defendants, THE BROOKLYN UNION GAS COMPANY, individually and D/B/A NATIONAL GRID NEW YORK and HALLEN CONSTRUCTION,CO., INC. (MS#6) Defendants oppose the same. FACTS This action arises from personal injuries allegedly sustained by plaintiff, NALDY LOPEZwhile she was a pedestrian who was allegedly injured when her foot went into a hole located in cold patch surrounding a metal plate on a sidewalk located adjacentto the premises located at 3228 Mermaid Avenue in Brooklyn, New York, which allegedly caused herto trip and fall on April 29, 2018. Defendants, HALLEN CONSTRUCTION and defendant, THE NATIONAL GRID NEW YORK pursuant to a contract performed excavation and gas main replacements on the sidewalk atthe premises. Plaintiffalleges said contract work caused and created the dangerous tripping hazard which caused the plaintiffto trip and fall. It is alleged by the plaintiff Naldy Lopez in hertestimony taken on April 29, 2018, at 1:00 pm plaintifffell on the sidewalk of 33rd Street between Mermaid Avenue and SurfAvenue nearthe cornerclosesttothe intersectionwith MermaidAvenue when her rightfootwent into a "round hole"the size ofher hand. See Exhibit "K"at 16 - 23; 38. It is undisputed, on the date Plaintifffell there was a steel plate on the sidewalk in close proximitytowhere shefell. New York Paving Hallen issued paving orders to New York Paving to perform temporary restoration to the sidewalk atWest 33rd Street between Mermaid and Surf 15 feetfrom the corner. NewYork Paving contends they performed the sidewalk restoration
on West 33rd Street between Mermaid and SurfAvenue on June 11, 2018, two months afterthe alleged incident.
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### WILED: KINGS COUNTY CLERK 02/15/2024 04:39 

# PM NYSCEF DOC. NO. 152 INDEX NO. 504566/2019 RECEIVED NYSCEF: 02/15/2024
However, Mr. Stone uncovered another paving order and this paving order was issued by Hallen Construction on April 2, 2018 to the paving contractor to put down temporary asphalt indicated (Code: CD 92 on the paying order on p. 20 of Exhibit N) at the location ofWest 33rd Street between Mermaid Avenue and SurfAvenue. On the next page for this paving order it is indicated thatthe temporary asphaltwas put down atthis location on April 3, 2018. (Exhibit M, p. 50, lines 5-9 and Exhibit N, p. 21. The paving Orderto replace the temporary asphalt at the above-mentioned location was issued by Hallen Construction to paving contractor was April 3, 2018. (Exhibit M, p. 42, line 6-9, Exhibit N, p. 24)A continuation ofthat paving order is on page 25 of Exhibit N and which Mr. Stone states that a final restoration of the sidewalk on West 33rd Street between Mermaid and SurtAvenuewith concretewas completed bythe paving contractoron June 10, 2018. ( Exhibit M, p. 42, lines 10- 14, and Exhibit N, pgs. 24-25 New York Paving contends they are entitled to summary judgment because the New York Paving did not owe a duty to the plaintiff to maintain or repair the subject sidewalk; they did not create the subject condition; they did not create the hole in the sidewalk; they did not place the steel plate on the sidewalk; they did not place the macadam around the steel plate. Defendant New York Paving also contends that any work they did where the alleged accident occurred was two months after the accident, and they were not performing any work at that location at the time ofthe accident. The Court notes defendant New York Paving does not admit to placing the any temporary asphalt on the sidewalk, but New York Paving contends that even ifthey did place the temporary asphalt in the sidewalk, defendants contend the temporary asphalt was not defective atthetimethe workwas performed and the holeformed at a laterdate afterthe
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### WILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ NYSCEF DOC. NO. 152 INDEX NO. 504566/2019 RECEIVED NYSCEF: 02/15/2024

sidewalk was excavated and the plate and macadam were placed around the plate. ANALYSIS It is well settled law that whenever any sidewalk, pavement, curb or gutter in any street shall be taken up, the person or persons by whom or for whose benefit the same is removed has a statutory obligation to restore the sidewalk. Maldonado v

### 527 Lincoln Place, LLC, 173AD3d730, 103 NYS3d 581, 2019 N.Y. App. Div, 2019 NY Slip Op 04373. In Maldonado the Court found that it was undisputed that National Grid, through its contractors, constructed the asphalt-filled trench on which the plaintiff allegedly fell. The trench was part ofa gas main replacement project that spanned almost the entire block ofLincoln Place between Classon and FranklinAvenues. This isjustlikethe present case wherein it is undisputed defendants, THE BROOKLYN UNION GAS COMPANY, individually and D/8/A NATIONAL GRID NEW YORK and HALLEN CONSTRUCTION,CO., INC. through its contractors constructed the asphalton which the plaintiff allegedly fell. As such plaintiffs motion for partial summary judgment is hereby granted. (MS#6) Whether New York Paving did in fact, put down temporary blacktop in the area where plaintifffell and whether itwas negligent in doing so are both issues offact in this action. There are two paving orders and one of the orders is for before the accident occurred, therefore New York Paving has not overcome their burden of showing the paving orderfrom April was notthem orthatthey did not do any work beforethe accident,
or ifthey did do the work that said work was not defective, pursuant to the April paving order referenced above. As such, motion sequence number five (5) for summary judgment is hereby denied there are issues offact.
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### [FILED: KINGS COUNTY CLERK 02/15/2024 04:39 P~ NYSCEF DOC. NO. 152 INDEX NO. 504566/2019 RECEIVED NYSCEF: 02/15/2024
Accordingly, defendant NewYork Paving's motionfor summaryjudgmentis hereby denied for the reasons stated above. (MS#S) Plaintiffs motion for partial summary judgment against defendants, THE BROOKLYN UNION GAS COMPANY, individually and D/B/A NATIONAL GRID NEW YORK and HALLEN CONSTRUCTION.CO., INC. is hereby granted forthe reasons stated above. (MS#6).
This constitutes the Decision/Order ofthe court. Dated: Brooklyn, NewYork FEBRUARY, 15, 2024 

# ijFO

Hon. RichardVelasq

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