Preview
FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JEFFREY GOLDSTEIN AND KELLIE GOLDSTEIN, Index No.: 150253/2017
Plaintiffs,
-against- AFFIRMATION IN SUPPORT
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, AND
CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC.,
Defendants.
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CONSOLIDATED EDISON COMPANY OF NEW Third Party Index No.:596024/17
YORK, INC.,
Third-Party Plaintiff,
-against-
CAC INDUSTRIES, INC.,
Third-Party Defendant.
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Patrick McConnell, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following with knowledge of the penalties for perjury:
1. I am associated with THE LAW OFFICE OF ERIC D. FELDMAN, attorneys for
the defendant(s) CAC INDUSTRIES and as such am familiar with the facts and circumstances as
stated herein.
2. This affirmation is submitted in support of the within motion for summary
judgment dismissing plaintiff’s complaint and all cross claims as asserted against defendant CAC
Industries pursuant to CPLR 3212. The plaintiff was involved in an accident on February 22,
2016 in the intersection of 9thStreet and 5th Avenue in Manhattan. The plaintiff was operating a
motor scooter and the front wheel allegedly went into a roadway defect located and abutting a
Con Edison electrical manhole casting at the intersection in question. As the accompanying
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memorandum of law will show, Con Edison was responsible for the maintenance and upkeep of
the manhole cover including the 12-inch area surrounding the grating. Hare v City of New York
183 AD2d 682 (1st Dept. 1992).
3. The following exhibits are annexed hereto to assist the court in reaching a
decision on this motion for summary judgment.
Exhibit “A” The plaintiff’s notice of claim.
Exhibit “B” The summons and complaint served upon the City of New York and Con
Edison January 9, 2016.
Exhibit “C” The answer of Con Edison to the initial complaint.
Exhibit “D” The third-party summons and complaint served by Con Edison on third-party
defendant CAC Industries.
Exhibit “E” The answer to the third-party complaint of CAC Industries.
Exhibit “F” Plaintiff’s amended complaint dated February 28, 2018.
Exhibit “G” The answer to the amended verified complaint of CAC Industries.
Exhibit “H” The answer to the amended verified complaint of Con Edison.
Exhibit “I” Con Edison’s response to the notice to admit dated February 22, 2016.
Exhibit “J” The EBT testimony of Ralph Rocco on behalf of CAC Industries.
Exhibit “K” The photographs marked by the plaintiff at his depositions.
The Plaintiff’s Testimony Pursuant to General Municipal Law 50h
4. The plaintiff testified with respect to his claim against the City of New York on
September 7, 2016. He remembered the accident of February 22, 2016. (Page 13, lines 14-16)
Hit happened at approximately 9:00 am. (Page 13, lines 19-21) The accident happened on 9th
Street near its intersection with Fifth Avenue in Manhattan. (Page 13, line 25-Page 14, line 7) At
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the time of the accident he was using a electric motor scooter. (Page 14, lines 8-14) He had
purchased the scooter about five months before the accident and he used it every day. (Page 15,
lines 2-7).
5. He was coming from his house and going to work when the accident happened.
(Page 15, line 21-Page 16, line 2) He was traveling along East 9th Street which was a one-way-
street. (Page 16, lines 10-16) There was a car parked in the bicycle lane which is why he went
around it. (Page 16, line 23-Page 17, line 2) When he approached the intersection of east 9th
Street and Fifth Avenue, he had the green light and proceeded not the intersection. (Page 18,
lines 3-12) He was in the middle of the crosswalk when the accident happened. (Page 18, 13-18).
6. He was traveling, and he hit a pothole and the front wheel of his scooter stuck in
the hole and he flew over his scooter. (Page 20, line 22-Page 21, line 2) After the accident, he
looked at the pothole and he saw that it was roundish. It was about three to four inches in depth.
(Page 23, lines 10-23) It was circular and had a diameter of about six to ten inches. (Page 24,
lines 3-6).
The Plainitff’s Deposition Testimony
7. The plaintiff testified for the first time on July 12, 2017. He resided at 45 East 9th
Street Apartment 76 in Manhattan. He lives with his wife Kelly. (Page 7, lines 5-11) He
remembers he was involved in an accident on February 22, 2016, at approximately 9:00 a.m.
(Page 9, lines 18-21) The accident happened at the intersection of 9th Street and Fifth Avenue in
Manhattan. (Page 9, lines 22-24) He was on his way to work at 1441 Broadway and the accident
happened about one block away from his apartment. (Page 10, lines 18-21).
8. He was going to work on an electric scooter. (Page 11, lines 12-14) He had been
riding a motor scooter for about five months before the accident. (Page 11-lines 18-20) He was
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traveling on 9th Street to get to work on the scooter as was his custom. He ordinarily rode in the
bicycle lane but on the date of the accident there was a car parked in the bicycle lane. (Page 16,
lines 6-21) As he went around the car, he struck a pothole with his front tire and the tire became
stuck in the pothole (Page 16, lines 9-12).
9. There is one lane of moving traffic on 9th Street where he was traveling. (Page 16,
lines 22-25) He was traveling with the flow of traffic. (Page 17, lines 8-10) 9th Street was a one-
way street. (Page 17, lines 6-7).
10. He described the pothole as being 4 inches deep and 12 inches in length. (Page
65, lines 3-5) It was like a long circle. (Page 65, lines 1-2) He marked a photograph which was
identified as Exhibit F1 and which showed the general area of the pothole that was involved in
the accident. (Page 79, lines 4-7).
The testimony of Con Edison by Thomas Fitzgibbon
11. Mr. Fitzgibbon testified on July 20, 2021. He is presently employed by Con
Edison as an electrical splicer. (Page8, line 21-Page 9, line 2) He has been a splicer for 30 years
(Page 9, lines 3-8) He performed work on manhole #32561 on April 6, 2015. He was performing
a PSC inspection or a Public Service Commission inspection. (Page 10, lines 20-24) He was
inspecting the manhole to make sure it was safe. (Page 11, lines 3-4) It is mandated by the State
that a certain number of manholes need to be inspected within a certain time period. (Page 11,
lines 5-7).
12. Manhole # 32561 was a Con Edison manhole which was a high voltage primary
feeder (13,000 volts) and a secondary voltage and secondary main cable (120-125 volts). He
created a report at the completion of his inspection. (Page 11, line 24-Page 12, line 2) The
inspection report is a one-page document. (Page 13, lines 4-6) It was dated April 6, 2015. (Page
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13, lines 8-12) There were 9 questions to be answered on the inspection report. (Page 16, lines 4-
6).
13. The witness indicated that in addition to the items required by the 9 questions to
be inspected that the inspector would look around the manhole to see if there were any dips or
tripping hazards or if the manhole cover were loose. (Page 18, lines 2-8) According to the report,
the witness claims he found no defects around the hole on his 2015 inspection.
14. The witness was shown a photograph which was previously marked at the
deposition of the plaintiff. (Page 28, lines 11-16) He identified the manhole shown in the
photograph as being manhole 33561 which was the manhole involved in the plaintiff’s
accident. (Page 28, lines 18-24) He claims that the manhole did not appear as it did when he
inspected it as if it had looked like it did in the photograph, he would have marked it as a level 4
condition. (Page 29, lines 7-15) He would have noted it as a condition to be regraded. (Page 29,
line 20-Page 30, line 4) The only inspection he ever performed on the manhole involved in this
accident was on April 6, 2015. (Page 30, line 23-Page 31, line 4).
15. The witness indicated that when an inspector arrives at a location, he performs a
stray voltage test and then he looks around the rim of the manhole in each compass direction.
(Page 25, line 22-Page 26, line 8) He is looking for imperfections and to see of the road is graded
properly. (Page 26, lines 13-20) Con Edison’s responsibility extends to 12 inches from the
manhole in every direction of the electrical manhole. (Page 27, lines 2-5).
The Deposition Testimony of Ralph Rocco on behalf of CAC Industries
16. Mr. Rocco has been employed by CAC Industries for the last nine years and he is
a supervisor. Page 9, lines 8-14) As supervisor, he is responsible for making sure jobs are
completed and performed in a timely manner. (Page 9, lines 22-25) CAC Industries performed
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work in the vicinity of 5th Avenue and 9th Street from March 7, 2015, through October 18, 2015.
(Page 17, lines 2-19) The cut forms identified by the witness showed that cuts were made
and restored by CAC Industries adjacent but not over the Con Edison casting involved in
the plaintiff’s accident. (Page 28, lines 14-22) In the photograph identified of the Con Edison
manhole cover, he indicated that CAC Industries would not do concrete and asphalt work
directly around that manhole cover. (Page 42, line 25, Page 43, line 6) CAC Industries
performed work adjacent to the manhole cover owned by Con Edison but not on the side of
the manhole where there was a noticeable defect shown. (Page 43, lines 7-15) CAC
Industries would never performs work directly over a manhole cover. (Page 43, lines 18-23).
The Photographs
17. The photographs which were marked by the plaintiff as showing the area where
his moto scooter was involved in an accident show that the pothole in question was located
immediately adjacent to a Con Edison manhole installation.
Argument
The plaintiff fell when the wheel of his motorbike went into a hole located immediately
next to a Con Edison high voltage electrical fixture or casting. The witness for CAC Industries
testified that CAC would not have paved over the casting in question and did not in fact perform
an work on the side of the casting where the plaintiff testified the defect involved in his accident
was located. Since the plaintiff’s scooter wheel became stuck in a depression located within 12
inches of the Con Edison high voltage fixture, Con Edson is solely responsible for bringing about
the accident involving plaintiff.
As the annexed memorandum of law will demonstrate that Con Edison had maintenance
and repair responsibility as the owner of the fixture in question and the area 12 inches out in each
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direction from the fixture. Hurley v Related Management Company 74 AD3d 648 (1stDept.
2010) Con Edison had a duty to maintain and repair sidewalk vault covers and grates. Con
Edison was responsible in the case at bar in preventing a defective condition from arising on
connection with one of its street fixtures and as they failed to do so they are solely responsible
for the accident involving the plaintiff.
WHEREFORE, it is respectfully requested that the within motion for summary judgment
pursuant to CPLR 3212(b) be granted in its entirety dismissing plaintiff’s complaint and all cross
claims and for such other and further relief as it deems just and proper.
Affirmed: New York, New York
December 29, 2022
___________________________________
BY: PATRICK J. McCONNELL
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ATTORNEY CERTIFICATION PURSUANT TO LOCAL RULE 202.8-b
The undersigned Attorney hereby certifies that this document, exclusive of this page herein,
complies with the Uniform Civil Rules and Local Rule 202.8-b. This document is (1873) words.
Dated: New York, New York
December 29, 2022
Yours, etc.
The Law Office Of
ERIC D. FELDMAN
By: PATRICK J. McCONNELL
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Preview
FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X JEFFREY GOLDSTEIN AND KELLIE GOLDSTEIN, Index No.: 150253/2017 Plaintiffs, -against- AFFIRMATION IN SUPPORT THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendants. -------------------------------------------------------------------------X CONSOLIDATED EDISON COMPANY OF NEW Third Party Index No.:596024/17 YORK, INC., Third-Party Plaintiff, -against- CAC INDUSTRIES, INC., Third-Party Defendant. -------------------------------------------------------------------------X Patrick McConnell, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following with knowledge of the penalties for perjury: 1. I am associated with THE LAW OFFICE OF ERIC D. FELDMAN, attorneys for the defendant(s) CAC INDUSTRIES and as such am familiar with the facts and circumstances as stated herein. 2. This affirmation is submitted in support of the within motion for summary judgment dismissing plaintiff’s complaint and all cross claims as asserted against defendant CAC Industries pursuant to CPLR 3212. The plaintiff was involved in an accident on February 22, 2016 in the intersection of 9thStreet and 5th Avenue in Manhattan. The plaintiff was operating a motor scooter and the front wheel allegedly went into a roadway defect located and abutting a Con Edison electrical manhole casting at the intersection in question. As the accompanying 1 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 memorandum of law will show, Con Edison was responsible for the maintenance and upkeep of the manhole cover including the 12-inch area surrounding the grating. Hare v City of New York 183 AD2d 682 (1st Dept. 1992). 3. The following exhibits are annexed hereto to assist the court in reaching a decision on this motion for summary judgment. Exhibit “A” The plaintiff’s notice of claim. Exhibit “B” The summons and complaint served upon the City of New York and Con Edison January 9, 2016. Exhibit “C” The answer of Con Edison to the initial complaint. Exhibit “D” The third-party summons and complaint served by Con Edison on third-party defendant CAC Industries. Exhibit “E” The answer to the third-party complaint of CAC Industries. Exhibit “F” Plaintiff’s amended complaint dated February 28, 2018. Exhibit “G” The answer to the amended verified complaint of CAC Industries. Exhibit “H” The answer to the amended verified complaint of Con Edison. Exhibit “I” Con Edison’s response to the notice to admit dated February 22, 2016. Exhibit “J” The EBT testimony of Ralph Rocco on behalf of CAC Industries. Exhibit “K” The photographs marked by the plaintiff at his depositions. The Plaintiff’s Testimony Pursuant to General Municipal Law 50h 4. The plaintiff testified with respect to his claim against the City of New York on September 7, 2016. He remembered the accident of February 22, 2016. (Page 13, lines 14-16) Hit happened at approximately 9:00 am. (Page 13, lines 19-21) The accident happened on 9th Street near its intersection with Fifth Avenue in Manhattan. (Page 13, line 25-Page 14, line 7) At 2 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 the time of the accident he was using a electric motor scooter. (Page 14, lines 8-14) He had purchased the scooter about five months before the accident and he used it every day. (Page 15, lines 2-7). 5. He was coming from his house and going to work when the accident happened. (Page 15, line 21-Page 16, line 2) He was traveling along East 9th Street which was a one-way- street. (Page 16, lines 10-16) There was a car parked in the bicycle lane which is why he went around it. (Page 16, line 23-Page 17, line 2) When he approached the intersection of east 9th Street and Fifth Avenue, he had the green light and proceeded not the intersection. (Page 18, lines 3-12) He was in the middle of the crosswalk when the accident happened. (Page 18, 13-18). 6. He was traveling, and he hit a pothole and the front wheel of his scooter stuck in the hole and he flew over his scooter. (Page 20, line 22-Page 21, line 2) After the accident, he looked at the pothole and he saw that it was roundish. It was about three to four inches in depth. (Page 23, lines 10-23) It was circular and had a diameter of about six to ten inches. (Page 24, lines 3-6). The Plainitff’s Deposition Testimony 7. The plaintiff testified for the first time on July 12, 2017. He resided at 45 East 9th Street Apartment 76 in Manhattan. He lives with his wife Kelly. (Page 7, lines 5-11) He remembers he was involved in an accident on February 22, 2016, at approximately 9:00 a.m. (Page 9, lines 18-21) The accident happened at the intersection of 9th Street and Fifth Avenue in Manhattan. (Page 9, lines 22-24) He was on his way to work at 1441 Broadway and the accident happened about one block away from his apartment. (Page 10, lines 18-21). 8. He was going to work on an electric scooter. (Page 11, lines 12-14) He had been riding a motor scooter for about five months before the accident. (Page 11-lines 18-20) He was 3 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 traveling on 9th Street to get to work on the scooter as was his custom. He ordinarily rode in the bicycle lane but on the date of the accident there was a car parked in the bicycle lane. (Page 16, lines 6-21) As he went around the car, he struck a pothole with his front tire and the tire became stuck in the pothole (Page 16, lines 9-12). 9. There is one lane of moving traffic on 9th Street where he was traveling. (Page 16, lines 22-25) He was traveling with the flow of traffic. (Page 17, lines 8-10) 9th Street was a one- way street. (Page 17, lines 6-7). 10. He described the pothole as being 4 inches deep and 12 inches in length. (Page 65, lines 3-5) It was like a long circle. (Page 65, lines 1-2) He marked a photograph which was identified as Exhibit F1 and which showed the general area of the pothole that was involved in the accident. (Page 79, lines 4-7). The testimony of Con Edison by Thomas Fitzgibbon 11. Mr. Fitzgibbon testified on July 20, 2021. He is presently employed by Con Edison as an electrical splicer. (Page8, line 21-Page 9, line 2) He has been a splicer for 30 years (Page 9, lines 3-8) He performed work on manhole #32561 on April 6, 2015. He was performing a PSC inspection or a Public Service Commission inspection. (Page 10, lines 20-24) He was inspecting the manhole to make sure it was safe. (Page 11, lines 3-4) It is mandated by the State that a certain number of manholes need to be inspected within a certain time period. (Page 11, lines 5-7). 12. Manhole # 32561 was a Con Edison manhole which was a high voltage primary feeder (13,000 volts) and a secondary voltage and secondary main cable (120-125 volts). He created a report at the completion of his inspection. (Page 11, line 24-Page 12, line 2) The inspection report is a one-page document. (Page 13, lines 4-6) It was dated April 6, 2015. (Page 4 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 13, lines 8-12) There were 9 questions to be answered on the inspection report. (Page 16, lines 4- 6). 13. The witness indicated that in addition to the items required by the 9 questions to be inspected that the inspector would look around the manhole to see if there were any dips or tripping hazards or if the manhole cover were loose. (Page 18, lines 2-8) According to the report, the witness claims he found no defects around the hole on his 2015 inspection. 14. The witness was shown a photograph which was previously marked at the deposition of the plaintiff. (Page 28, lines 11-16) He identified the manhole shown in the photograph as being manhole 33561 which was the manhole involved in the plaintiff’s accident. (Page 28, lines 18-24) He claims that the manhole did not appear as it did when he inspected it as if it had looked like it did in the photograph, he would have marked it as a level 4 condition. (Page 29, lines 7-15) He would have noted it as a condition to be regraded. (Page 29, line 20-Page 30, line 4) The only inspection he ever performed on the manhole involved in this accident was on April 6, 2015. (Page 30, line 23-Page 31, line 4). 15. The witness indicated that when an inspector arrives at a location, he performs a stray voltage test and then he looks around the rim of the manhole in each compass direction. (Page 25, line 22-Page 26, line 8) He is looking for imperfections and to see of the road is graded properly. (Page 26, lines 13-20) Con Edison’s responsibility extends to 12 inches from the manhole in every direction of the electrical manhole. (Page 27, lines 2-5). The Deposition Testimony of Ralph Rocco on behalf of CAC Industries 16. Mr. Rocco has been employed by CAC Industries for the last nine years and he is a supervisor. Page 9, lines 8-14) As supervisor, he is responsible for making sure jobs are completed and performed in a timely manner. (Page 9, lines 22-25) CAC Industries performed 5 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 work in the vicinity of 5th Avenue and 9th Street from March 7, 2015, through October 18, 2015. (Page 17, lines 2-19) The cut forms identified by the witness showed that cuts were made and restored by CAC Industries adjacent but not over the Con Edison casting involved in the plaintiff’s accident. (Page 28, lines 14-22) In the photograph identified of the Con Edison manhole cover, he indicated that CAC Industries would not do concrete and asphalt work directly around that manhole cover. (Page 42, line 25, Page 43, line 6) CAC Industries performed work adjacent to the manhole cover owned by Con Edison but not on the side of the manhole where there was a noticeable defect shown. (Page 43, lines 7-15) CAC Industries would never performs work directly over a manhole cover. (Page 43, lines 18-23). The Photographs 17. The photographs which were marked by the plaintiff as showing the area where his moto scooter was involved in an accident show that the pothole in question was located immediately adjacent to a Con Edison manhole installation. Argument The plaintiff fell when the wheel of his motorbike went into a hole located immediately next to a Con Edison high voltage electrical fixture or casting. The witness for CAC Industries testified that CAC would not have paved over the casting in question and did not in fact perform an work on the side of the casting where the plaintiff testified the defect involved in his accident was located. Since the plaintiff’s scooter wheel became stuck in a depression located within 12 inches of the Con Edison high voltage fixture, Con Edson is solely responsible for bringing about the accident involving plaintiff. As the annexed memorandum of law will demonstrate that Con Edison had maintenance and repair responsibility as the owner of the fixture in question and the area 12 inches out in each 6 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 direction from the fixture. Hurley v Related Management Company 74 AD3d 648 (1stDept. 2010) Con Edison had a duty to maintain and repair sidewalk vault covers and grates. Con Edison was responsible in the case at bar in preventing a defective condition from arising on connection with one of its street fixtures and as they failed to do so they are solely responsible for the accident involving the plaintiff. WHEREFORE, it is respectfully requested that the within motion for summary judgment pursuant to CPLR 3212(b) be granted in its entirety dismissing plaintiff’s complaint and all cross claims and for such other and further relief as it deems just and proper. Affirmed: New York, New York December 29, 2022 ___________________________________ BY: PATRICK J. McCONNELL 7 of 8 FILED: NEW YORK COUNTY CLERK 12/29/2022 04:06 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/29/2022 ATTORNEY CERTIFICATION PURSUANT TO LOCAL RULE 202.8-b The undersigned Attorney hereby certifies that this document, exclusive of this page herein, complies with the Uniform Civil Rules and Local Rule 202.8-b. This document is (1873) words. Dated: New York, New York December 29, 2022 Yours, etc. The Law Office Of ERIC D. FELDMAN By: PATRICK J. McCONNELL 8 of 8