Preview
FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022
LBBS File No: 44837.170
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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MARIE BABAYAN,
Index No.: 17132/2014
Plaintiff,
REPLY AFFIRMATION IN
-against- FURTHER SUPPORT OF
SUMMARY JUDGMENT
THE CITY OF NEW YORK, VERIZON NEW
YORK, INC., CONSOLIDATED EDISON, INC.,
and V.N.A. UTILITY CONTRACTING CO., INC.,
Defendants.
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KATIE LEE WRIGHT, being duly sworn and under the penalty of perjury, deposes and
states:
1. I am an associate of the law firm LEWIS BRISBOIS BISGAARD & SMITH, LLP,
attorneys for defendant VERIZON NEW YORK INC. (hereinafter “VZNY”). As such I am fully
familiar with all the facts and circumstances herein based upon my review of the contents of the
litigation file maintained by our office during the course of the defense of this action and based upon
my participation in the defense of this matter.
2. This Affirmation is made in further support of VZNY’s motion for summary
judgment to dismiss Plaintiff’s complaint and all cross-claims against VZNY.
3. It is respectfully submitted that the Plaintiff’s opposition fails to raise any issues of
fact and ignores several critical issues including that neither VZNY nor its subcontractor V.N.A.
Utility Contracting Inc. (hereinafter “VNA”) performed any work at or near the subject crosswalk.
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4. It is respectfully submitted that VZNY’s motion should be granted for the following
reasons:
a) It isundisputed that VZNY did not perform any work in the subject
crosswalk, nor was any work performed on its behalf .
b) It is likewise undisputed that VZNY had no facilities located within the
subject crosswalk.
c) It isalso undisputed that VZNY did not cause or have notice of any
alleged defect in the roadway.
5. Simply put, VZNY is an improper party to this litigation and therefore the motion
should be granted in its entirety.
6. Plaintiff’s opposition takes a “shotgun approach” in making any and every possible
argument in an attempt to distract this Court and create issues of fact where none exist. Plaintiff
argues that the permit issued to VZNY and the testimony of both VZNY and VNA establish that
VNA performed multiple excavations at the subject crosswalk. That is simply not true. The permit
issued to Verizon, and the work performed by VNA, authorized excavation in a traffic lane, far from
the pedestrian crosswalk where plaintiff’s accident occurred.
7. It is clear from the evidence submitted in support of VZNY’s motion, including the
complete exchange of discovery between plaintiff and VZNY consisting of plaintiff’s 50-hearing,
Bill of Particulars, plaintiff’s deposition testimony, deposition testimony of VZNY, deposition
testimony of VNA, the affidavit of Aaron Crawford of VZNY, and the cut form, that VZNY did not
create the alleged condition, make repairs to, or make special use of the crosswalk where Plaintiff
fell.
8.
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ARGUMENT
I.
VZNY HAS MET ITS PRIMA FACIE BURDEN
9. VZNY has met its prima facie burden by establishing that it did not create the alleged
condition, make repairs, or make special use of the crosswalk area where plaintiff fell. All evidence
when viewed in a light most f avorable to the plaintiff establishes that all work performed in
connection with Permit B01-2013066-018, the only permit issued to VZNY in the vicinity of
plaintiff’s alleged crosswalk accident, was performed over 1,300 feet from the subject crosswalk.
Exhibit L pgs. 37-38.
10. Plaintiff argues that the permit, coupled with the testimony of Crawford and
Coccimiglio, establish that VNA performed multiple excavations along Neptune Avenue at or near
the subject accident site along with photographs that plaintiff alleges depict flawed backfilling
performed on behalf of VZNY. Plaintiff’s Aff. in Opp. ¶ 20. This is an egregious
mischaracterization of the evidence submitted in support of VZNY’s motion. The permits and the
testimony specifically detail work that occurred far away from the subject crosswalk, over 1,300 feet
away in fact. Plaintiff argues that “multiple” cuts were made, when in fact only two cuts were made.
Both Mr. Crawford and Mr. Coccimiglio testified that VNA made two cuts, one 280 feet and one
200 feet from West 5th Street in the direction of Ocean Parkway on Neptune Avenue in the street.
Exhibit I, Exhibit L. The cut sheet, annexed to plaintiff’s opposition as Exhibit E, shows exact ly
where those cuts were made – nowhere near the pedestrian crosswalk adjacent to the southwest
portion of Neptune Avenue’s intersection with Ocean Parkway.
11. Plaintiff further misleads the court by stating that the photographs annexed to her
affirmation in opposition as Exhibit A depict flawed excavation that would have been performed on
behalf of VZNY. This completely misstates the evidence before the court. VZNY witness Mr.
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Crawford was shown the photographs contained in plaintiff’s A, but he never state d that it depicted
excavation performed on behalf of VZNY; he merely answered the hypothetical posed by
questioning counsel, which was if the defect depicted in the photograph had been performed by
VNA, was the job performed properly? To which Mr. Crawford responded “no”, since he was
obviously looking at a defect, but not one that was the result of work by VNA on behalf of VZNY,
as he testified to multiple times. Exhibit I, pgs. 35-36. At no point did Mr. Crawford state that the
work in subject crosswalk depicted in Plaintiff’s A was performed by VZNY or VNA. Plaintiff also
completely ignores the subsequent testimony wherein Mr. Crawford goes on to state that the defect
depicted in plaintiff’s A appears to be about five years old, a time frame far preceding any work
performed by VZNY and VNA. Exhibit I, pgs. 36-37.
12. It is well established that a motion for summary judgment should be granted if “upon
all the papers and proof submitted, the cause of action or defense shall establish sufficiently to
warrant the court as a matter of law in direction judgment in favor of any party.” CPLR 3212(b). A
party seeking summary judgment must make a prima facie showing of entitlement to judgment as a
matter of law by demonstrating the absence of material issue of fact. See, Winegrad v. New York
University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316, 317 -319
(1985). Summary judgment should be granted without hesitation in actions where there is no
meritorious cause of action. See, Lomnitz v. Town of Woodbury, 81, A.D.2d 828, 829, 438
N.Y.S.2d 825, 827 (2d Dep’t 1981).
13. In the instant matter, documentary evidence, testimonial evidence, and an affidavit
have confirmed that the record is devoid of material issues of fact and that VZNY has made out a
prima facie entitlement to summary judgment. All evidence before the Court establishes that VZNY
did not create the alleged condition, make repairs, or make special use of the crosswalk area where
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plaintiff fell. When shown photographs of the subject location both VZNY and its subcontractor
VNA confirmed that no work was performed on behalf of VZNY anywhere near the subject
crosswalk. Both VZNY and VNA established that they never received any complaints, notices of
violation, or corrective action requests, either written or oral, in connection with the pedestrian
crosswalk adjacent to the southwest corner of Neptune Avenue and Ocean Parkway- because neither
party performed any work at that location. Accordingly, VZNY is entitled to summary judgment in
its favor as a matter of law for both the claims and cross-claims alleged against it.
II.
VZNY IS ENTITLED TO SUMMARY JUDGMENT ON THE MERITS AS PLAINTIFF
FAILED TO RAISE ANY ISSUES OF FACT
14. Plaintiff’s opposition fails to overcome ECS’ prima facie entitlement to summary
judgment. Plaintiff is alleging that she fell inside the crosswalk while crossing Neptune Avenue at
it’s intersection with Ocean Parkway at the southwest corner. Exhibit A ¶ 3, Exhibit G pgs. 10 ¶ 16 -
17, 12 ¶ 9-13, Exhibit H pgs. 20-25. Plaintiff specifically testified that she crossed within the white
“strip” demarcating the crosswalk. Exhibit H pg. 27 ¶ 13-24. Meanwhile, the permit issued by the
City to VZNY, cut form, deposition testimony of VZNY and VNA, and affidavit of Aaron Crawford
of VZNY, clearly establish that no work was perform inside the crosswalk of Neptune Avenue at
Ocean Parkway. In fact, the evidence very clearly establishes that the work performed in connection
with Permit B01-2013066-018 was not in the crosswalk but in a traffic lane. Exhibit M, pgs. 50 -51,
52-53. Both Mr. Crawford and Mr. Coccimiglio testified that the VNA made two cuts, one 280 feet
and one 200 feet from West 5th Street in the direction of Ocean Parkway on Neptune Avenue in the
street. Exhibit I, Exhibit L. The distance of the two cuts from Ocean Parkway was “minimum at least
1,300 feet” from the subject crosswalk. Exhibit L pgs. 37-38.
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15. Plaintiff incorrectly points to specific quotes in the deposition testimony of Mr.
Crawford and Mr. Coccimiglio to support her argument that the work performed in connection with
Permit B01-2013066-018 was near the subject crosswalk, while ignoring the context of the quotes
and totality of the testimony which clearly details that work was not performed anywhere near the
subject crosswalk where plaintiff fell. Plaintiff attempts misdirection by improperly characterizing
testimony as being related to the subject work.
16. Plaintiff also purports herself as a roadway-work expert by submitting photographs
from Google maps, which were not the subject of any discovery or shown to either Mr. Crawford or
Mr. Coccimiglio, and states declaratively that said Google Maps photographs “demonstrate clearly
that no such utility cuts were made in the locations set forth by Coccimiglio.” Accepting plaintiff’s
submission of four Google Maps photographs from September 2013 as accurate representations of
the stretch of roadway depicted in each photograph, VZNY would note that according to that same
Google Map the distance from Ocean Parkway to W. 5th Street is .2 miles or 1,056 feet and the four
photographs submitted give no indication as to where along this 1,056 feet stretch of road the
photographs are from. The addresses identified in plaintiff’s Exhibit D all come back to the
intersection of Neptune Avenue and W. 5th Street, not 200 feet and 280 feet in from that
intersection, and nowhere near the crosswalk at Ocean Avenue where plaintiff fell. It is hard f or
VZNY to even understand exactly what plaintiff was expecting to see six months later related two
cuts made, one 12 x 4 feet and one 10 x 3 feet, and properly filled in March 19 , 2013. See Exhibit E
of Plaintiff’s Opposition.
17. It is well settled that “….a shadowy semblance of an issue or bald conclusory
assertions, even if believable, are not enough to defeat a motion for summary judgment.” Paltrow v.
Town of Lewisboro, 199 A.D.2d 372, 605 N.Y.S.2d 323 (2d Dep’t 1993); see also, Seaboard Surety
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Company v. Nigro Bros., Inc., 222 A.D.2d 574, 635 N.Y.S.2d 199 (2d Dep’t 1999). Rather, there
must be something evidentiary in nature to sustain a claim, “[m]ere conclusions based upon surmise,
conjecture, speculation or assertions are without probative value.” Sosa v. Golub Corp., 273 A.D.2d
762, 710 N.Y.S.2d 171 (3rd Dep’t 1995). Yet this is precisely what Plaintiff tries to do in her
opposition – incorrectly characterize testimony and assert conclusions without factual basis.
Plaintiff summarized the testimony of Mr. Crawford, leaving out key testimony, and inserting
opinions without basis. Paragraphs 24 (iv) of Plaintiff’s opposition asserts that Mr. Crawford was
shown photographs depicting the accident location to which he stated “without hesitation” that to the
extent VNA performed the excavation work depicted therein, it was performed improperly. Plaintiff
inserts a false and unnecessary characterization of Mr. Crawford’s response as “without hesitation”
which is clearly not evident from the transcript and then continues on as if this testimony is
somehow relevant. It is not since VNA did not perform any work contained with the photograph
shown to Mr. Crawford. Mr. Crawford merely answered the question as it was posed to him – a
hypothetical scenario to which he gave his opinion. Hypotheticals are not fact, and the very real fact
is that Mr. Crawford goes on to say that the defect he observed in the photograph appeared to be
“about five years old or more”, a time frame that far exceeds the less than one year between any
work performed by VNA for VZNY and Plaintiff’s accident.
18. VZNY will spare this court a detailed account of every single mischaracterization of
testimony, every bald assertion, and every red herring argued by plaintiff. The evidence in this case
clearly establishes that VZNY did not own, occupy or otherwise make use of the subject crosswalk.
Moreover, VZNY never performed construction or repair work to that portion of the crosswalk.
Thus, VZNY has established its prima facie entitlement to dismissal of the claims against it.
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19. Summary judgment should be granted without hesitation in actions where there is no
meritorious cause of action. See Lomnitz v. Town of Woodbury, 81 A.D.2d 828, 829, 438 N.Y.S.2d
825, 8827 (2d Dep’t 1981). To defeat a motion for summary judgment, the opposing party must
demonstrate there is a genuine triable issue of fact. See Fender v. Prescott, 101 A.D.2d 418, 476
N.Y.S2d 128 (1st Dep’t 1984). A frivolous issue of fact will not preclude a court from granting
summary judgment. Id.
20. As demonstrated herein, and in VZNY’s Affirmation in Support of Summary
Judgment, there is no issue of fact that would preclude judgment in favor of VZNY. Therefore, the
Plaintiff’s complaint and all cross-claims against VZNY must be dismissed and the instant motion
granted.
WHEREFORE, for the reasons set forth above, defendant VERIZON NEW YORK, INC.
respectfully request that an Order be made and entered herein pursuant to CPLR §3212 granting it
summary judgment and dismissing the Complaint and all crossclaims against it, together with such
other and further relief as to this Court may seem just and proper.
Dated: New York, New York
September 26, 2022
__________________________________
Katie Lee Wright, Esq.
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Preview
FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 LBBS File No: 44837.170 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------x MARIE BABAYAN, Index No.: 17132/2014 Plaintiff, REPLY AFFIRMATION IN -against- FURTHER SUPPORT OF SUMMARY JUDGMENT THE CITY OF NEW YORK, VERIZON NEW YORK, INC., CONSOLIDATED EDISON, INC., and V.N.A. UTILITY CONTRACTING CO., INC., Defendants. ------------------------------------------------------------------x KATIE LEE WRIGHT, being duly sworn and under the penalty of perjury, deposes and states: 1. I am an associate of the law firm LEWIS BRISBOIS BISGAARD & SMITH, LLP, attorneys for defendant VERIZON NEW YORK INC. (hereinafter “VZNY”). As such I am fully familiar with all the facts and circumstances herein based upon my review of the contents of the litigation file maintained by our office during the course of the defense of this action and based upon my participation in the defense of this matter. 2. This Affirmation is made in further support of VZNY’s motion for summary judgment to dismiss Plaintiff’s complaint and all cross-claims against VZNY. 3. It is respectfully submitted that the Plaintiff’s opposition fails to raise any issues of fact and ignores several critical issues including that neither VZNY nor its subcontractor V.N.A. Utility Contracting Inc. (hereinafter “VNA”) performed any work at or near the subject crosswalk. 4889-8408-2484.2 1 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 4. It is respectfully submitted that VZNY’s motion should be granted for the following reasons: a) It isundisputed that VZNY did not perform any work in the subject crosswalk, nor was any work performed on its behalf . b) It is likewise undisputed that VZNY had no facilities located within the subject crosswalk. c) It isalso undisputed that VZNY did not cause or have notice of any alleged defect in the roadway. 5. Simply put, VZNY is an improper party to this litigation and therefore the motion should be granted in its entirety. 6. Plaintiff’s opposition takes a “shotgun approach” in making any and every possible argument in an attempt to distract this Court and create issues of fact where none exist. Plaintiff argues that the permit issued to VZNY and the testimony of both VZNY and VNA establish that VNA performed multiple excavations at the subject crosswalk. That is simply not true. The permit issued to Verizon, and the work performed by VNA, authorized excavation in a traffic lane, far from the pedestrian crosswalk where plaintiff’s accident occurred. 7. It is clear from the evidence submitted in support of VZNY’s motion, including the complete exchange of discovery between plaintiff and VZNY consisting of plaintiff’s 50-hearing, Bill of Particulars, plaintiff’s deposition testimony, deposition testimony of VZNY, deposition testimony of VNA, the affidavit of Aaron Crawford of VZNY, and the cut form, that VZNY did not create the alleged condition, make repairs to, or make special use of the crosswalk where Plaintiff fell. 8. 4889-8408-2484.2 2 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 ARGUMENT I. VZNY HAS MET ITS PRIMA FACIE BURDEN 9. VZNY has met its prima facie burden by establishing that it did not create the alleged condition, make repairs, or make special use of the crosswalk area where plaintiff fell. All evidence when viewed in a light most f avorable to the plaintiff establishes that all work performed in connection with Permit B01-2013066-018, the only permit issued to VZNY in the vicinity of plaintiff’s alleged crosswalk accident, was performed over 1,300 feet from the subject crosswalk. Exhibit L pgs. 37-38. 10. Plaintiff argues that the permit, coupled with the testimony of Crawford and Coccimiglio, establish that VNA performed multiple excavations along Neptune Avenue at or near the subject accident site along with photographs that plaintiff alleges depict flawed backfilling performed on behalf of VZNY. Plaintiff’s Aff. in Opp. ¶ 20. This is an egregious mischaracterization of the evidence submitted in support of VZNY’s motion. The permits and the testimony specifically detail work that occurred far away from the subject crosswalk, over 1,300 feet away in fact. Plaintiff argues that “multiple” cuts were made, when in fact only two cuts were made. Both Mr. Crawford and Mr. Coccimiglio testified that VNA made two cuts, one 280 feet and one 200 feet from West 5th Street in the direction of Ocean Parkway on Neptune Avenue in the street. Exhibit I, Exhibit L. The cut sheet, annexed to plaintiff’s opposition as Exhibit E, shows exact ly where those cuts were made – nowhere near the pedestrian crosswalk adjacent to the southwest portion of Neptune Avenue’s intersection with Ocean Parkway. 11. Plaintiff further misleads the court by stating that the photographs annexed to her affirmation in opposition as Exhibit A depict flawed excavation that would have been performed on behalf of VZNY. This completely misstates the evidence before the court. VZNY witness Mr. 4889-8408-2484.2 3 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 Crawford was shown the photographs contained in plaintiff’s A, but he never state d that it depicted excavation performed on behalf of VZNY; he merely answered the hypothetical posed by questioning counsel, which was if the defect depicted in the photograph had been performed by VNA, was the job performed properly? To which Mr. Crawford responded “no”, since he was obviously looking at a defect, but not one that was the result of work by VNA on behalf of VZNY, as he testified to multiple times. Exhibit I, pgs. 35-36. At no point did Mr. Crawford state that the work in subject crosswalk depicted in Plaintiff’s A was performed by VZNY or VNA. Plaintiff also completely ignores the subsequent testimony wherein Mr. Crawford goes on to state that the defect depicted in plaintiff’s A appears to be about five years old, a time frame far preceding any work performed by VZNY and VNA. Exhibit I, pgs. 36-37. 12. It is well established that a motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action or defense shall establish sufficiently to warrant the court as a matter of law in direction judgment in favor of any party.” CPLR 3212(b). A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by demonstrating the absence of material issue of fact. See, Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316, 317 -319 (1985). Summary judgment should be granted without hesitation in actions where there is no meritorious cause of action. See, Lomnitz v. Town of Woodbury, 81, A.D.2d 828, 829, 438 N.Y.S.2d 825, 827 (2d Dep’t 1981). 13. In the instant matter, documentary evidence, testimonial evidence, and an affidavit have confirmed that the record is devoid of material issues of fact and that VZNY has made out a prima facie entitlement to summary judgment. All evidence before the Court establishes that VZNY did not create the alleged condition, make repairs, or make special use of the crosswalk area where 4889-8408-2484.2 4 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 plaintiff fell. When shown photographs of the subject location both VZNY and its subcontractor VNA confirmed that no work was performed on behalf of VZNY anywhere near the subject crosswalk. Both VZNY and VNA established that they never received any complaints, notices of violation, or corrective action requests, either written or oral, in connection with the pedestrian crosswalk adjacent to the southwest corner of Neptune Avenue and Ocean Parkway- because neither party performed any work at that location. Accordingly, VZNY is entitled to summary judgment in its favor as a matter of law for both the claims and cross-claims alleged against it. II. VZNY IS ENTITLED TO SUMMARY JUDGMENT ON THE MERITS AS PLAINTIFF FAILED TO RAISE ANY ISSUES OF FACT 14. Plaintiff’s opposition fails to overcome ECS’ prima facie entitlement to summary judgment. Plaintiff is alleging that she fell inside the crosswalk while crossing Neptune Avenue at it’s intersection with Ocean Parkway at the southwest corner. Exhibit A ¶ 3, Exhibit G pgs. 10 ¶ 16 - 17, 12 ¶ 9-13, Exhibit H pgs. 20-25. Plaintiff specifically testified that she crossed within the white “strip” demarcating the crosswalk. Exhibit H pg. 27 ¶ 13-24. Meanwhile, the permit issued by the City to VZNY, cut form, deposition testimony of VZNY and VNA, and affidavit of Aaron Crawford of VZNY, clearly establish that no work was perform inside the crosswalk of Neptune Avenue at Ocean Parkway. In fact, the evidence very clearly establishes that the work performed in connection with Permit B01-2013066-018 was not in the crosswalk but in a traffic lane. Exhibit M, pgs. 50 -51, 52-53. Both Mr. Crawford and Mr. Coccimiglio testified that the VNA made two cuts, one 280 feet and one 200 feet from West 5th Street in the direction of Ocean Parkway on Neptune Avenue in the street. Exhibit I, Exhibit L. The distance of the two cuts from Ocean Parkway was “minimum at least 1,300 feet” from the subject crosswalk. Exhibit L pgs. 37-38. 4889-8408-2484.2 5 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 15. Plaintiff incorrectly points to specific quotes in the deposition testimony of Mr. Crawford and Mr. Coccimiglio to support her argument that the work performed in connection with Permit B01-2013066-018 was near the subject crosswalk, while ignoring the context of the quotes and totality of the testimony which clearly details that work was not performed anywhere near the subject crosswalk where plaintiff fell. Plaintiff attempts misdirection by improperly characterizing testimony as being related to the subject work. 16. Plaintiff also purports herself as a roadway-work expert by submitting photographs from Google maps, which were not the subject of any discovery or shown to either Mr. Crawford or Mr. Coccimiglio, and states declaratively that said Google Maps photographs “demonstrate clearly that no such utility cuts were made in the locations set forth by Coccimiglio.” Accepting plaintiff’s submission of four Google Maps photographs from September 2013 as accurate representations of the stretch of roadway depicted in each photograph, VZNY would note that according to that same Google Map the distance from Ocean Parkway to W. 5th Street is .2 miles or 1,056 feet and the four photographs submitted give no indication as to where along this 1,056 feet stretch of road the photographs are from. The addresses identified in plaintiff’s Exhibit D all come back to the intersection of Neptune Avenue and W. 5th Street, not 200 feet and 280 feet in from that intersection, and nowhere near the crosswalk at Ocean Avenue where plaintiff fell. It is hard f or VZNY to even understand exactly what plaintiff was expecting to see six months later related two cuts made, one 12 x 4 feet and one 10 x 3 feet, and properly filled in March 19 , 2013. See Exhibit E of Plaintiff’s Opposition. 17. It is well settled that “….a shadowy semblance of an issue or bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment.” Paltrow v. Town of Lewisboro, 199 A.D.2d 372, 605 N.Y.S.2d 323 (2d Dep’t 1993); see also, Seaboard Surety 4889-8408-2484.2 6 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 Company v. Nigro Bros., Inc., 222 A.D.2d 574, 635 N.Y.S.2d 199 (2d Dep’t 1999). Rather, there must be something evidentiary in nature to sustain a claim, “[m]ere conclusions based upon surmise, conjecture, speculation or assertions are without probative value.” Sosa v. Golub Corp., 273 A.D.2d 762, 710 N.Y.S.2d 171 (3rd Dep’t 1995). Yet this is precisely what Plaintiff tries to do in her opposition – incorrectly characterize testimony and assert conclusions without factual basis. Plaintiff summarized the testimony of Mr. Crawford, leaving out key testimony, and inserting opinions without basis. Paragraphs 24 (iv) of Plaintiff’s opposition asserts that Mr. Crawford was shown photographs depicting the accident location to which he stated “without hesitation” that to the extent VNA performed the excavation work depicted therein, it was performed improperly. Plaintiff inserts a false and unnecessary characterization of Mr. Crawford’s response as “without hesitation” which is clearly not evident from the transcript and then continues on as if this testimony is somehow relevant. It is not since VNA did not perform any work contained with the photograph shown to Mr. Crawford. Mr. Crawford merely answered the question as it was posed to him – a hypothetical scenario to which he gave his opinion. Hypotheticals are not fact, and the very real fact is that Mr. Crawford goes on to say that the defect he observed in the photograph appeared to be “about five years old or more”, a time frame that far exceeds the less than one year between any work performed by VNA for VZNY and Plaintiff’s accident. 18. VZNY will spare this court a detailed account of every single mischaracterization of testimony, every bald assertion, and every red herring argued by plaintiff. The evidence in this case clearly establishes that VZNY did not own, occupy or otherwise make use of the subject crosswalk. Moreover, VZNY never performed construction or repair work to that portion of the crosswalk. Thus, VZNY has established its prima facie entitlement to dismissal of the claims against it. 4889-8408-2484.2 7 of 8 FILED: KINGS COUNTY CLERK 09/26/2022 03:31 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 09/26/2022 19. Summary judgment should be granted without hesitation in actions where there is no meritorious cause of action. See Lomnitz v. Town of Woodbury, 81 A.D.2d 828, 829, 438 N.Y.S.2d 825, 8827 (2d Dep’t 1981). To defeat a motion for summary judgment, the opposing party must demonstrate there is a genuine triable issue of fact. See Fender v. Prescott, 101 A.D.2d 418, 476 N.Y.S2d 128 (1st Dep’t 1984). A frivolous issue of fact will not preclude a court from granting summary judgment. Id. 20. As demonstrated herein, and in VZNY’s Affirmation in Support of Summary Judgment, there is no issue of fact that would preclude judgment in favor of VZNY. Therefore, the Plaintiff’s complaint and all cross-claims against VZNY must be dismissed and the instant motion granted. WHEREFORE, for the reasons set forth above, defendant VERIZON NEW YORK, INC. respectfully request that an Order be made and entered herein pursuant to CPLR §3212 granting it summary judgment and dismissing the Complaint and all crossclaims against it, together with such other and further relief as to this Court may seem just and proper. Dated: New York, New York September 26, 2022 __________________________________ Katie Lee Wright, Esq. 4889-8408-2484.2 8 of 8