Supreme Court, Bronx County, New York.

Joanne HENNESSY and William T. Hennessy, Plaintiff(s),

v.

CITY OF NEW YORK, New York City Department of Parks and Recreation, Consolidated Edison Company of New York, Restani Construction Corporation, Tully Construction Company, Inc., Vales Construction Corp. & Fleet Trucking, Inc., Defendant(s).

 

No. 307847/09.

June 19, 2014.

 

Mitchell J. Danziger, J.

*1 In this action for, inter alia, the negligent maintenance of a premises, defendant RESTANI CONSTRUCTION CORPORATION (Restani) moves seeking an order dismissing the cross claims for contribution and contractual indemnification asserted against it by defendants THE CITY OF NEW YORK (the City) and the NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (the Parks Department), and the cross claim for common law indemnification asserted by VALES CONSTRUCTION CORP (Vales) FN1. Restani avers that it is entitled to summary judgment on the aforementioned cross-claims inasmuch as the evidence it submits in support of the instant motion evinces that it did not perform any work at the location where plaintiff JOANNE HENNESSY (Joanne) alleges to have tripped and fallen. Restani’s motion is partially opposed by Vales, who argues that if it is not granted summary judgment on the claims and cross claims asserted by plaintiff, the City, and the Parks Department, respectively, Vales’ cross-claims against Restani should remain.

 

FN1. By partially executed stipulation, dated March 26, 2013, plaintiffs discontinued their claims against Restani. Additionally, insofar as executed by Tully and Restani, the stipulation also discontinues all cross claims asserted by those parties.

 

Defendant TULLY CONSTRUCTION CO., INC. (Tully), s/h/a TULLY CONSTRUCTION COMPANY, INC., cross-moves seeking identical relief on the same grounds asserted by Restani FN2. Like Restani, Tully argues that it is entitled to summary judgment on the cross claims for contribution and indemnification asserted by the City, the Parks Department, and Vales because Tully’s evidence demonstrates that it did not perform work at the location of Joanne’s alleged accident. For the very same reasons which Vales partially opposes Restani’s motion, Vales also partially opposes Tully’s motion for summary judgment. Additionally, Vales cross-moves for summary judgment as to the claims asserted by plaintiff and the cross claims for contribution and contractual indemnification asserted by the City and the Parks Department. Vales contends, inter alia, that while the evidence submitted establishes that it performed work near the location of Joanne’s accident prior to her alleged fall, its work did not result in the dangerous condition alleged to have caused her accident. Thus, Vales argues that the evidence submitted negates the only basis for its liability. Plaintiffs and Tully oppose Vales’ motion for summary judgment on grounds that because, inter alia, Vale has yet to produce a witness for a deposition the instant motion is premature and must be denied pursuant to CPLR § 3212(f). Moreover, plaintiffs oppose Vales’ motion asserting that insofar as their evidence establishes that Vales performed work on the sidewalk near the area where Joanne allegedly fell, questions of fact as to whether that work caused the dangerous condition alleged preclude summary judgment.

 

FN2. By partially executed stipulation, dated March 26, 2013, plaintiffs discontinued their claims against Tully. Additionally, insofar as executed by Tully and Restani, the stipulation also discontinues all cross claims asserted by those parties.

 

Defendant CONSOLIDATED EDISON COMPANY OF NEW YORK (Con Ed) moves for relief identical to that sought by Tully and Restani and for the very same reasons FN3. Specifically, Con Ed avers that it is entitled to summary judgment on the cross claims for contribution and indemnification asserted by the City, the Parks Department, and Vales because its evidence demonstrates that it did not perform work at the location of Joanne’s alleged accident. For the same reasons which Vales partially opposes Restani and Tully’s motion, Vales also partially opposes Con Ed’s motion for summary judgment, namely, that if Vales’ is denied summary judgment, then Con Ed’s motion should be denied and Vales’ cross claims should remain.

 

FN3. By partially executed stipulation, dated March 26,2013, plaintiffs discontinued their claims against Con Ed.

 

*2 For the reasons that follow hereinafter, Restani and Con Ed’s motions are granted, as are the cross-motions by Vale and Tully.

 

The instant action is for alleged personal injuries. Plaintiffs’ complaint alleges that on August 15, 2008, Joanne tripped and fell within the Quarry Ballfields, a park owned and maintained by the City and the Parks Department. Specifically, the complaint alleges that Joanne tripped on construction debris—namely broken concrete within Quarry Ballfields–88 feet southeast from the intersection of Quarry Road and Oaktree Place, Bronx, NY. Plaintiffs allege that prior to Joanne’s accident, Con Ed, Restani, Tully, and defendant FLEET TRUCKING, INC.FN4 (Fleet), performed work on the roadway and sidewalk located at the intersection of Quarry Road and Oaktree Place and negligently failed to clear construction debris, which debris caused Joanne’s accident. Insofar as the City and the Parks Department failed to clear the aforementioned construction debris, despite notice of its existence, plaintiffs allege that the City and the Parks Department were negligent, which negligence caused Joanne’s accident. Plaintiff WILLIAM T. HENNESY, as Joanne’s husband, asserts a derivative loss of consortium claim. In its answer, the City and the Parks Department assert cross claims against all defendants for contribution and contractual indemnification. Vales, within its answer, asserts cross claims against all defendants for contribution as well as common law and contractual indemnification. Within its answer Restani also interposes cross claims against Fleet, Vale, and Con Ed for contribution, common law and contractual indemnification. Tully, in its answer, interposes similar cross claims against Fleet.

 

FN4. Fleet never interposed an answer nor did it otherwise appear in this action. Thus, on August 6, 2010, this Court granted plaintiffs a default judgment against Fleet.

 

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof ( Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form ( Muniz v. Bacchus, 282 A.D.2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009] ).

 

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,

 

*3 [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact. Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

 

( Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979] [internal citations omitted] ). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form ( Johnson v. Phillips, 261 A.D.2d 269, 270 [1st Dept 1999] ).

 

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 A.D.2d 811, 811 [4th Dept 2000] ),

 

Supreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

 

(see also Yaziciyan v. Blancato, 267 A.D.2d 152, 152 [1st Dept 1999]; Perez v. Bronx Park Associates, 285 A.D.2d 402, 404 [1st Dept 2001] ). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination ( Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). When the proponent of a motion for summary judgment fails to establish prima facie entititlment to summary judgment, denial of the motion is required “regardless of the sufficiency of the opposing papers” ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).

 

Pursuant to CPLR § 3212(f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist but are unavailable to the opposing party. Denial is particularly warranted when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party ( Franklin National Bank of Long Island v. De Giacomo, 20 A.D.2d 797, 297 [2d Dept 1964]; De France v. Oestrike, 8 A.D.2d 735, 735–736 [2d Dept 1959]; Blue Bird Coach Lines, Inc. v. 107 Delaware Avenue, N.V., Inc, 125 A.D.2d 971, 971 [4th Dept 1986] ). However, when the information necessary to oppose the instant motion, is wholly within the control of the party opposing summary judgment and could be produced via sworn affidavits, denial of a motion for summary judgment pursuant to CPLR § 3212(f), will be denied ( Johnson v. Phillips, 261 A.D.2d 269, 270 [1st Dept 1999).

 

*4 A party claiming ignorance of facts critical to the defeat a motion for summary judgment is only entitled to further discovery and denial of a motion for summary judgment if he or she demonstrates that reasonable attempts were made to discover facts which, as the opposing party claims, would give rise to a triable issue of fact ( Sasson v. Setina Manufacturing Company, Inc., 26 AD3d 487, 488 [2d Dept 2006]; Cruz v. Otis Elevator Company, 238 A.D.2d 540, 540 [2d Dept 1997] ). Implicit in this rationale is that the proponent of further discovery must identify facts, which would give rise to triable issues of fact. This is because, a court cannot condone fishing expeditions and as such “[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient” (Sasson at 501). Thus, additional discovery, should not be ordered, where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence ( Frith v. Affordable Homes of America, Inc., 253 A.D.2d 536, 537 [2d Dept 1998] ).

 

Notwithstanding the foregoing, CPLR § 3212(f) mandates denial of a motion for summary judgment when a motion for summary judgment is patently premature, meaning when it is made prior to the preliminary conference, if no discovery has been exchanged ( Gao v. City of New York, 29 AD3d 449, 449 [1st Dept 2006]; Bradley v. Ibex Construction, LLC, 22 AD3d 380, 380–381 [1st Dept 2005]; McGlynn v. Palace Co., 262 A.D.2d 116, 117 [1st Dept 1999] ). Under these circumstances, the proponent seeking denial of a motion as premature, need not demonstrate what discovery is sought, that the same will lead to discovery of triable issues of fact or the efforts to obtain the same have been undertaken (id.). In Bradley, the court denied plaintiff’s motion for summary judgment as premature, when the same was made prior to the preliminary conference (Bradley at 380). In McGlynn, the court denied plaintiff’s motion seeking summary judgment, when the same was made after the preliminary conference but before defendant had obtained any discovery whatsoever (McGlynn at 117).

 

Under the common law, a landowner is duty bound to maintain his or her property in a reasonably safe condition ( Basso v. Miller, 40 N.Y.2d 233, 242 [1976] ). Thus, the owner of a premises is required to exercise reasonable care in the maintenance of his property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk (id.). Accordingly, liability for a dangerous condition within a premises requires proof that either the owner created the dangerous condition or, that he had actual or constructive notice of the same ( Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 [1994]; Bogart v. F.W. Woolworth Company, 24 N.Y.2d 936, 937 [1969]; Armstrong v. Ogden Allied Facility Management Corporation, 281 A.D.2d 317, 318 [1st Dept 2001]; Wasserstrom v. New York City Transit Authority, 267 A.D.2d 36, 37 [1st Dept 1999] ).

 

*5 While an owner’s liability for a defective condition on real property is governed by the foregoing, liability for the acts of a third-party, such as a contractor hired to perform work within a premises, hinges on an altogether different body of law. Unlike the owner of real property, a contractor hired to perform work at a premises is not generally liable to a third-party-such as a plaintiff who sustains injuries within the premises-either in tort or for the breach of an underlying contract which injures a third party ( Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 139 [2002] [“Under our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.”] ); Moch v. Rensselaer Water Co., 247 N.Y. 160, 161 [1928]; Bugiada v. Iko, 274 A.D.2d 368, 368–369 [2d Dept 2000] ). Thus, while a contractor is liable to the person who hired him, e.g., the owner of premises, for a breach which causes injury to a third-party, the contractor is not generally liable to third-party whose injured by the contractor’s breach of his contractual obligation unless (1) the contracting party, in failing to exercise reasonable care in the performance of his duties, creates a dangerous condition; (2) the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; or (3) the contracting party has entirely displaced the other party’s duty to maintain the premises safely (Espinal at 140; Moch at 168; Eaves Brooks Costume Company, Inc. v. Y.B .H. Realty Corp., 76 N.Y.2d 220, 226 [1990]; Palka v. Servicemaster Management Services Corporation, 83 N.Y.2d 579, 587 [1994]; Bugiada 368–369).

 

Restani’s Motion for Summary Judgment

Restani’s motion for summary judgment is granted insofar as its evidentiary submissions establish that while it performed work near the location of Joanne’s alleged accident, such work was performed after the date of accident alleged, such that Restani could not and did not cause the defective condition alleged to have caused Joanne’s accident.

 

At her deposition, a transcript of which Restani appends to its motion, Joanne testified that on August 15, 2008, she tripped and fell while within Quarry Park. Plaintiff, a detective specialist with the New York City Police Department, had just entered the park with her partner in order to observe some gang members in a building opposite the park. After parking her vehicle at the intersection of Quarry Road and Oaktree Place, she entered the park and proceeded to walk on a dirt path. After traveling approximately 70 feet thereon, she felt a snap, tripped, and fell to the ground. While, Joanne didn’t see what caused her to trip, after falling she saw that the ground was littered with grey construction debris.

 

Michael Calcerone (Calderone), testified at his deposition, a transcript of which Restani submits, and states within an affidavit, also submitted by Restani, that on August 15, 2008 he was a project manager with Restani. Pursuant to a contract between Restani and the City’s Department of Design and Construction (DDC), Restani was to perform milling work for the City in Bronx County. Milling was performed on roadways and involved the grinding of approximately 1.5 to 2 inches from the top of an existing asphalt roadway. While Restani performed milling on the roadway located on Quarry Road, which is the roadway adjacent to Quarry Ball Fields, it only did so on August 20 and 21, 2008. Restani did not contract to, nor did it perform any work on the sidewalks at or near Quarry Ball Fields Park.

 

*6 Based on the foregoing, Restani establishes prima facie entitlement to summary judgment as to the City, the Parks Department, and Vales’ cross claims. As noted above, under the common law, a landowner is duty bound to maintain his or her property in a reasonably safe condition (Basso at 242). Here, based on the evidence submitted by Restani, it is clear that the property within which Joanne allegedly tripped, Quarry Ball Fields Park, was owned and maintained by the City and not Restani, such that Restani had no obligation to maintain it. Under the facts presented, Restani would only be liable as a contractor, hired by the City—owner of the premises—if certain facts exist. Again, while a contractor is liable to the person who hired him—e.g., the owner of premises—for a breach which causes injury to a third-party, the contractor is not generally liable to third-party injured by the contractor’s breach of his contractual obligation unless (1) the contracting party, in failing to exercise reasonable care in the performance of his duties, creates a dangerous condition; (2) the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; or (3) the contracting party has entirely displaced the other party’s duty to maintain the premises safely (Espinal at 140; Moch at 168; Eaves Brooks Costume Company, Inc. at 226; Palka at 587; Bugiada 368–369).

 

In this case, given that Restani had no contact with the plaintiff and was hired to perform very limited milling work upon property owned by the City, its liability to the plaintiffs, and thus, to the City, the Parks Department and Vales under their contribution cross claim would only lie if in the performance of its work, Restani created the dangerous condition alleged to have caused Joanne’s accident. Contribution, is, after all, only available when “the culpable party from whom contribution is sought … breached a duty owed directly to the injured party … [or when] the breach of duty by the contributing party … had a part in causing or augmenting the injury for which contribution is sought” ( Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 603 [1988] ). Here, while the evidence presented establishes that Restani performed milling work near the park, it also establishes that the work performed was on the roadway, at least 70 feet from the location of plaintiff’s fall. Accordingly, Restani’s work could not have created the condition alleged by plaintiffs since it did not perform work at that location. More importantly, since the evidence establishes that Restani did not perform any work on Quarry Road until August 20 and 21, 2008, at least five days after Joanne’s fall, it is patently clear that Restani could not have created the condition alleged.

 

Similarly, insofar as the proponent of common law indemnification is required to “prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident” ( Correia v. Professional Data Management, Inc., 259 A.D.2d 60, 65 [1st Dept.1999] ), Restani’s evidence, establishing that it was not negligent, precludes any liability to Vales on its cross claim for common law indemnification. Given the foregoing, it is also clear that the cross claim for contractual indemnification asserted by the City and the Parks Department is also not viable inasmuch as said claim is only viable if the indemnification is required by contract, which here, could only be the contract referred to by Calderon. However, as stated by Calderon, the work thereunder was not performed until after Joanne’s accident, such that any indemnification clause could not have been triggered until and for work performed after Joanne’s alleged accident.

 

*7 Restani thus establishes prima facie entitlement to summary judgment and nothing submitted by Vales, the only party to oppose Restani’s motion, raises any issues of fact sufficient to preclude summary judgment in Restani’s favor.

 

Tully’s Cross–Motion for Summary Judgment

Tully’s cross motion for summary judgment is granted for virtually identical reasons to those warranting summary judgment in favor of Restani, namely, that the uncontroverted evidence establishes that Tully did not perform any work at or near the location of Joanne’s alleged accident prior to her purported fall.

 

In an affidavit submitted by Tully in support of its motion, William Urig (Urig), project manager with Tully, states that while Tully did contract with the City to perform milling work on certain roadways, neither Tully, nor Fleet-to whom the work was subcontracted-ever actually performed such work at Quarry Road or Oaktree Place.

 

As discussed above, insofar as Tully establishes that it performed no work at the location of plaintiff’s alleged accident, it establishes, for the very same reasons already discussed, prima facie entitlement to summary judgment on the cross claims for contribution, common law, and contractual indemnity asserted against it by the City, the Parks Department and Vales. Nothing submitted by Vales, the only party to oppose Tully’s motion, raises any issues of fact sufficient to preclude summary judgment in Tully’s favor.

 

Con Ed’s Motion for Summary Judgment

Con Ed’s motion for summary judgment is granted for reasons identical to those warranting summary judgment in favor of Tully, namely, that the uncontroverted evidence establishes that Con Edison did not perform any work at or near the location of Joanne’s alleged accident prior to her purported fall.

 

George Canzaniello (Canzaniello), testified at his deposition, a transcript of which Con Ed submits, that he was employed by Con Ed as a records searcher. After reviewing Con Ed’s records, Canzaniello testified that Con Ed performed repairs to its gas lines located at or neat the intersection on Quarry Road and Oaktree Place. Those repairs were performed on January 6 and February 7, 2008 and involved making four cuts into the roadway and thereafter backfilling the same.

 

As discussed above, insofar as Con Ed establishes that it performed no work at the location of plaintiff’s alleged accident, which was 70 feet from the intersection upon which Con Ed performed work, it establishes, for the very same reasons already discussed, prima facie entitlement to summary judgment on the cross claims for contribution, common law, and contractual indemnity asserted against it by the City, the Parks Department and Vales. Nothing submitted by Vales, the only party to oppose Con Ed’s motion, raises any issues of fact sufficient to preclude summary judgment in Restani’s favor.

 

Vales Cross–Motion for Summary Judgment

Vale’s cross motion for summary judgment is granted for virtually identical reasons to those warranting summary judgment in favor of Con Ed, namely, that the uncontroverted evidence establishes that Vales did not perform any work at the location of Joanne’s alleged accident, such that it can not be said that it created the condition alleged to have caused Joanne’s fall. Moreover, Vales establishes that while it performed work on the sidewalk near the location of Joanne’s purported accident prior to her fall, it properly cleaned the site upon the completion of its work, such that the construction debris alleged to have caused the instant accident was not the product of Vales’ work.

 

*8 In support of its motion, Vales submits an affidavit from Silvano Vales (Silvano), who was Vales’ secretary since its founding. Silvano states that on July 19, and September 7, 2005, Vales replaced the sidewalks at or near Quarry Road and Oaktree Place. The work was performed pursuant to a contract with the City and involved the demolition of the existing sidewalk and the installation of new sidewalks. As was its practice, when Vales performed this kind of work, it would employ a crew of 25 people. Vales would demolish the existing sidewalk with a backhoe. The debris would then be collected and carted away. Thereafter, new sidewalk would be installed by pouring concrete into forms. While the work was being performed, the City would always have inspectors present and at the completion of the work, the site would be left broom clean. With respect to the work performed at the instant location, the work performed was accepted as complete by the City on March 30, 2006.

 

Vales also submits several documents, which evince that on December 7, 2005, the City deemed Vales’ work at the location of Quarry Road and Oaktree Street to have been substantially complete, and that on March 30, 2006, the City deemed the foregoing work as complete.

 

Preliminarily, based on the foregoing, meaning all the evidence discussed and which was submitted in support of the various motions and cross-motions-which highlights the breath of discovery already exchanged-the Court finds unavailing plaintiffs and Tully’s assertion that pursuant to CPLR § 3212(f), the instant motion is premature. While it is true that pursuant to CPLR § 3212(f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist but are unavailable to the opposing party, denial is only warranted when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party (Franklin National Bank of Long Island at 297; De France at 735–736; Blue Bird Coach Lines, Inc. at 971). However, a party claiming ignorance of facts critical to the defeat a motion for summary judgment is only entitled to further discovery and denial of a motion for summary judgment if he or she demonstrates that reasonable attempts were made to discover facts which, as the opposing party claims, would give rise to a triable issue of fact (Sasson at 488; Cruz at 540). Implicit in this rationale is that the proponent of further discovery must identify facts, which would give rise to triable issues of fact. This is because, a court cannot condone fishing expeditions and as such “[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient” (Sasson at 501). Thus, additional discovery, should not be ordered, where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence (Frith at 537).

 

*9 Here, notwithstanding Vales’ failure to produce a witness for a deposition, it is clear, based on Silvano’s affidavit, that such deposition would yield nothing beyond what he asserts in his affidavit. This is especially true here, since he attaches the documents which support and upon which his assertions are made, namely, the contract between the City and Vales, the Final Punch List, and the Final Completion Letter. His affidavit and the documents upon which it relies establish that Vales did not create the condition alleged to have caused Joanne’s alleged fall. For this very reason, that the City has yet to produce a witness from DDC-who would merely testify about the contents of the very documents already produced by the Vales and relied upon by Silvano-does not warrant denial of the Vale’s cross-motion pursuant to CPLR § 3212(f). Thus, further discovery would likely not lead to facts which would preclude summary judgment in Vales’ favor.

 

Substantively, as discussed above, Vales’ liability to plaintiffs would only lie if it can be established that it created the dangerous condition-the concrete debris-upon which Joanne tripped and fell. Here, Vales’ evidence establishes the opposite, namely, that while it performed work at or near the sidewalk adjacent to the dirt path where Joanne purportedly fell, it did not leave any debris behind. Thus, for this reason, it cannot be said that Vales created the instrumentality which caused Joanne’s fall and thus, Vales establishes prima facie entitlement to summary judgment as to plaintiffs’ claims as well as the cross claims for contribution, common law, and contractual indemnification asserted by City and Parks Department.

 

Nothing submitted by plaintiffs raises a traible issue of fact sufficient to preclude summary judgment. Plaintiffs’ salient opposition is that because Vales’ replaced the sidewalks adjacent to the location of Joanne’s accident three years prior to her accident, Vales should, therefore, be charged with leaving the debris existing thereat three years later. This argument is illogical since plaintiffs offer no direct evidence linking the debris to Vale’s work. Instead of proffering any evidence—such as the testimony of an actual eyewitness-establishing that Vales did in fact leave behind the debris which caused Joanne’s accident, plaintiffs proffer nothing more than argument, surmise, and conjecture. It is well settled, however, that mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to warrant or defeat summary judgement (Zuckerman at 562). Even viewed circumstantially, plaintiffs’ argument—that Vales work resulted in debris left behind by Vales, existing unabated for three years and precipitating Joanne’s accident—requires a quantum leap, which is in nevertheless belied by the evidence. Specifically, Felix Valentine (Valentine), a supervisor with the Parks Department, testified that the park in question was staffed by three employees whose duties required them to inspect and clean the park and report any issues in need of repairs. Valentine further testified that he never saw any of the debris which purportedly caused Joanne’s fall nor did he receive any complaints regarding the same. Accordingly, on this record, the debris alleged did not exist, at least according to Valentine, prior to the date of Joanne’s alleged accident, let alone that it was put there by Vales. It is hereby

 

*10 ORDERED that the complaint and all cross claims asserted against Vales be dismissed with prejudice. It is further

 

ORDERED that any and all cross claims asserted against Restani, Tully, and Con Ed be dismissed with prejudice. It is further

 

ORDERED that Vales serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof.

 

This constitutes this Court’s decision and Order.