Preview
FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_____..______..---------------------------------------------------------X
SHELLEY KARTEN, and MARK KARTEN, Index: 151650/2014
Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
-against- FOR SUMMARY
JUDGMENT
500-512 SEVENTH AVENUE LP, LLC., NEWMARK
GRUBB KNIGHT FRANK, CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC., GIBRALTAR
CONTRACTING, INC. and G&E REAL ESTATE
MANAGEMENT SERVICES, INC.
Defendants.
-------------------------------------------------------------------------X
CONSOLIDATED EDISON COMPANY OF NEW YORK, Index: 595637/2015
INC.,
Plaintiff,
-against-
NAMOW, INC.,
Defendant.
-------------------------------------------------------------------------X
Amy A. Perry, an attorney duly admitted to practice law before the Courts of the State of
New York, hereby affirms the following to be true under the penalties of perjury and pursuant to
CPLR 2106:
1. That I am associated with the Law Office of Virginia E. McDonald, attorneys for the
third-party defendant NAMOW, INC. ("Namow"). As such, I am fully familiar with the
facts and circumstances surrounding this action. The source of my information is the file
maintained by this office.
2. This affirmation is made in support of third-party defendant Namow's motion seeking an
Order granting Summary Judgment in its favor pursuant to CPLR 3212, and such other
and further relief as to the Court may seem just and proper. There are no material issues
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of fact to be adjudicated. As a matter of law, the instant action must be dismissed on the
grounds that Namow never performed any work or services on the sidewalk where the
alleged accident occurred.
PROCEDURAL HISTORY
3. This is an action brought for personal injuries allegedly sustained as the result of an
7th
accident that allegedly occurred on September 3, 2013 at or near 512 Avenue, New
York, New York 10018.
4. Plaintiff initiated this suit by the filing of Summons and Complaint on February 25, 2014.
See Summons and Complaint annexed hereto as Exhibit "A".
5. Defendant CONSOLIDATED EDISON COMPANY OF NEW YORK ("Con Ed")
joined issue on April 7, 2014, followed by its co-defendants, 500-512 SEVENTH
AVENUE LP, LLC., NEWMARK GRUBB KNIGHT FRANK, GIBRALTAR
CONTRACTING, INC., and G&E REAL ESTATE MANAGEMENT SERVICES, INC.
Defendants"
(collectively "First-Party Defendants"). See Answers of First-Party Defendants annexed
hereto as Exhibit "B".
6. Con Ed then initiated a third-party action against Namow on September 2, 2015, alleging
negligence and breach of contract. See Third-Party Summons and Complaint annexed
hereto as Exhibit "C".
7. Namow served itsAnswer to Con Ed's Third-Party Complaint on October 12, 2015. See
Third-Party Answer annexed hereto as Exhibit "D".
8. This action was discontinued as against First-Party Defendant REAL ESTATE
MANAGEMENT SERVICES, INC. on May 12, 2017.
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FACTS
9. In the Summons and Complaint, Plaintiffs allege that on September 3, 2013, between
approximately 1:30 PM and 2:00 PM, plaintiff Shelly Karten was caused to trip and fall
7th
in front of the building located at 500-512 Ave., New York, New York (the "loss
location" Defendants'
location") as a result of First-Party negligence.
10. In itsThird-Party Summons and Complaint, Third-Party Plaintiff Con Ed alleges that
Namow was negligent (although no work was ever performed by Namow at the loss
location), and that Namow breached its contractual duties.
11. Third-Party Plaintiff Con Ed and Third-Party Defendant Namow entered into Blanket
Purchase Agreement ("BPA") No. 130773, effective August 15, 2011-March 1, 2015. Per
the BPA, Namow agreed, among other things, to perform sidewalk restoration work at
various sites, including the loss location. See BPA annexed hereto as Exhibit "E".
12. As was its protocol, prior to any work being performed, on April 2, 2013, Namow sent a
representative to inspect the sidewalk restoration site to determine whether the contract
work could be completed and what materials were needed. This process is referred to as
"birddogging."
See Affidavit of Joseph Hassoune annexed hereto as Exhibit "F".
13. When Namow's representative arrived at the loss location where Plaintiff Shelly Karten
allegedly tripped and fell,he saw that a scaffold was present, and that Namow's work site
was thereby obstructed. Due to this scaffolding, Namow was unable to initiate, let alone
perform, itscontract work.
14. In her deposition, Plaintiff Shelly Karten was asked if construction was going in the area
where she allegedly tripped and fell.Per her testimony, she did not recall. She did state,
38th
though, that there was a scaffold present when she turned onto West Street, and that
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itwas present for an indeterminate amount of time prior to her alleged accident. See
Plaintiff's transcript, pages 19-20, annexed hereto as Exhibit "G".
15. In her deposition, Plaintiff was then shown photographs of the loss location, with
scaffolding present. She testified that that same scaffolding was present on the date of
loss, September 3, 2013, mere months after Namow's inspection on April 2, 2013. See
Plaintiff's transcript, pages at page 51, line 21-page 52, line 3 annexed hereto as Exhibit
"G". See Defendant's Exhibit M (photographs) annexed hereto as Exhibit "H".
16. When Namow became aware that scaffolding was present, itnotified Con Ed of the
condition at the loss location, and informed Con Ed that this condition prevented the
contract work from being performed.
17. After Namow informed Con Ed of the scaffolding that was present, Con Ed provided no
instructions on how Namow should proceed-therefore, Namow took no further action.
18. Based on Con Ed's failure to provide any instruction, Namow performed no work on the
sidewalk and issued a Ticket indicating no work was done by Namow due to the presence
of scaffolding at the location where the sidewalk work was to be done. See Ticket
annexed hereto as Exhibit "I".
19. On February 18, 2015, almost two years later, and undoubtedly fueled by Plaintiff's
Summons and Complaint, Namow received an email from Arthur Blind, a Consultant at
Con Ed, inquiring as to why the contracted work for the sitewas not done. See emails
annexed hereto as Exhibit "J".
20. The email in relevant part reads:
38th 8th 7th
"Ps 569028 w St between ave and ave you picked thisjob up on
job."
10/4/12 can you please tell me why you didn't do this
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21. Joseph Hassoune, Namow's Project Manager at time, responded that the work had
not been done due to the presence of the scaffold and the work order had been
returned. Id.
22. Still,neither Mr. Blind nor any other Con Edison representative advised Namow
that itfailed to follow protocol or proper procedures by not taking any further
action than the actions taken above.
ARGUMENT
SINCE NO ISSUES OF FACT HAVE BEEN PRESENTED, THIS COURT
SHOULD GRANT SUMMARY JUDGMENT IN FAVOR OF NAMOW, INC.
THIRD-PARTY DEFENDANT NAMOW IS ENTITLED TO SUMMARY
JUDGMENT AS A MATTER OF LAW AS THERE IS NO EVIDENCE THAT IT
BREACHED ITS CONTRACT OR CREATED A DEFECTIVE OR HAZARDOUS
CONDITION
23. It iswell settled that the owner or possessor of property is the party with the duty to
maintain the property in a reasonably safe condition and may be held liable for injures
condition"
arising from a "dangerous on the property. Rodriguez v. E & P Associates, 20
Misc.3d 1129(A), 872 N.Y.S.2d 693 (1st Dept. 2008); Crawford v. Pick Quick Foods,
Inc., 300 A.D.2d 431 (2d Dept 2002); Garry v. Rockville Centre Union Free School
District, 272 A.D.2d 437 (2d Dept 2000); Reynolds v. Reynolds, 245 A.D.2d 498, 666
N.Y.S.2d 43 (2nd Dept. 1997).
24. Here, Con Ed's allegations of actual and constructive notice of an alleged condition at the
subject location are not a basis for a finding of negligence against the contractor. Namow
was not the owner, nor possessor of the subject property and therefore ithad no duty to
maintain the property based on notice of an alleged condition. Accordingly, Con Ed's
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contentions that Namow may be held liable based on either actual or constructive notice
of the defect which plaintiff claims caused her injuries provides no basis for holding
Namow liable to the Third-Party Plaintiff.
25. Further, there is absolutely no evidence in the record from which any negligence on the
part of the defendant, Namow, can be established based on allegations that itcaused or
created the condition which plaintiff maintains caused her injuries.
26. The entirety of the admissible evidence in this matter demonstrates that Namow
performed no work, and had no involvement at the location whatsoever. The extent of its
involvement is limited to having a representative inspect the conditions at the location to
determine whether they were amenable, appropriate and susceptible to the performance
of the sidewalk reconstruction work itwas seeking to perform at the location.
27. The inspector found the conditions to be unsuitable, rendering the performance of the
restoration work at the location impossible, due to an existing scaffold above the
sidewalk. Therefore, Namow was unable to proceed with its contract work at the
location.
28. Third-Party Plaintiff Con Ed has not proffered any evidence to support, in what manner,
or to what extent Namow caused or created the alleged defective, dangerous, hazardous,
condition.
29. Contrarily, Third-Party Defendant has demonstrated that itcould not and did not perform
any work at the location. Accordingly, Namow did not cause or create any condition that
existed there at the time of plaintiff's accident.
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THE CONDITIONS THAT EXISTED AT THE ACCIDENT SITE PREVENTED
NAMOW'S CONTRACT PERFORMANCE
30. Further, Third-Party Plaintiff has offered no evidence to support that Namow was
negligent in failing to perform contract work in the area of the subject occurrence.
31. There has been no showing that, contrary to Namow's claims, the scaffold which
prevented itfrom performing its contract work at the time of its inspection and prior to
plaintiff's accident was removed, or that the work could have been performed under the
conditions that existed at the site prior to the time of Ms. Karten's accident.
32. Contrarily, the admissible evidence in this matter demonstrates that Namow made efforts
to perform its contract work at the location, that the conditions which existed at the time
itinspected the subject location prevented itscontract performance, and that Con Ed
failed to remedy those conditions and provide Namow with notice that the circumstances
no longer existed, and that the contract work could be undertaken.
33. The underlying principle of the law regarding contracts is that the promisor ordinarily is
bound to perform his agreement according to its terms or, if he unjustifiably fails to
perform, to respond in damages for his breach of the contract. Wilson & Co. v Fremont
Cake & Meal Co. (1950) 153 Neb 160, 43 NW2d 657, cert den 342 US 812, Bunch v
Potter (1941) 123 W Va 528, 17 SE2d 438.
34. Although mere unexpected difficulty, expense, or hardship involved in the performance
of a contract does not excuse the promisor from his obligation to perform in accordance
with his promise, where the difficulty or obstacle makes performance objectively
impossible a promisor is excused from his nonperformance of the contractual obligation.
35. The evidence proffered in this case demonstrates that Namow prepared a route based on
the logistics of performing its sidewalk restoration and other contract work for Con Ed.
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36. When Namow inspected the subject accident location, itfound a scaffold had been
erected above the area where itscontract work was to be performed. The existence of
these conditions is supported by admissible evidence in the form of correspondence
exchanged between Namow and Con Ed.
37. The existence of the scaffold at the location in and around the time of the subject
occurrence is also corroborated in photographs which show a scaffold erected, at the
accident site in photographs marked at plaintiff's deposition. See Exhibit "H".
38. Plaintiff testified that the scaffold was there at the time of and prior to the time of her fall.
"G"
See Exhibit at pages 19-20.
39. Further, the ticket related to work at the subject accident site indicates an inspection was
performed yet no work proceeded. See Exhibit "I". See also Exhibit "F".
40. The admissible evidence demonstrates that Namow made efforts to undertake its contract
duties at the subject location and was unable to do so (performance was an impossibility),
due to an existing scaffold above the sidewalk where the restoration was to be performed.
41. The inspector notified Con Edison, either by email or verbally (which was consistent with
itscourse of conduct in its contract —
duties-See Exhibit to advise that
executing "F"),
the scaffold prevented work from being performed at the location.
42. Additionally, Namow documented that the scaffold existed at the location and later
referred to that documentation, in responding to Con Ed's inquiry about work not having
been performed at the site.
43. There is no indication that Con Ed ever made any inquiry regarding performance of work
at the site, despite several complaints and notifications, until suit was commenced against
itin this action.
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44. There is also no evidence that the location was noted by Con Ed to be a hot spot requiring
immediate attention.
45. Further, no evidence has been proffered to show that the Third-Party Plaintiff attempted
at any time from the time itentered into the contract with Namow in 2011 up until the
date of plaintiff's accident in 2013 to confirm that any work was performed at the
location, or whether the conditions there permitted for such work to be performed.
46. Considering the admissible evidence in this case documenting through the work ticket,
the email correspondence, and photographs that a scaffolding at the accident location
prevented the sidewalk restoration work, from being performed, Namow may not be held
liable for a failure to perform itscontract duties. The admissible evidence demonstrates
that the conditions and circumstances that existed at the location at the time of the
occurrence and prior thereto, prevented performance of NAMOW'S contract duties.
CONCLUSION
47. In summary, Con Ed has failed to adduce proof in admissible form that Namow had any
duty based on actual or constructive notice of a dangerous/defective condition at the
subject accident location.
48. Con Ed has further failed to support any of itsother claims against Namow regarding
alleged creation of such a dangerous condition at the location, as the fact that the
condition already existed is the reason Namow was retained to perform work at the
location.
49. Further, Con Ed may not sustain its claims of negligence against Namow for an alleged
breach of its duties under the BPA as the admissible evidence demonstrates that itwas
impossible for Namow to perform its contract duties at the subject site, as the existence of
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a scaffold above the sidewalk where itwas retained to perform sidewalk restoration work,
prevented such work from being undertaken.
WHEREFORE, in view of the sufficiency of the proof in support of the within
motion in favor of summary judgment, itis respectfully requested that this Honorable
Court grant summary judgment in favor of Namow and grant such other and further relief
as this Court deems just and proper.
Dated: New York, New York
August 13, 2018
Yours, etc.
LAW OFFICE OF VIRGINIA E. McDONALD
Attorneys for Third-Party Defendant
NAMOW, INC.
- 13th
One Whitehall Street FlOOr
New York, NY 10004-2109
Phone: (212) 248-9100
By:
A Y A. PERRY
TO: DAVID M. SANTORO
Attorney for Third Party Plaintiff
4 Irving Place
Borough of Manhattan
New York, NY 10003
LAWRENCE B. SAFTLER, ESQ.
THE SAFTLER LAW FIRM
Attorneys for Plaintiffs
275 Madison Avenue, Suite 1605
New York, NY 10016
LAW OFFICES OF CRISCI, WEISER 4 McCARTHY
500-512 Seventh Avenue LP, LLC
8th
147 State Street, FlOOr
New York, NY 10004
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CONWAY, GOREN & BRANDMAN
Attorneys for Defendant
G&E Real Estate Management Services, Inc.
58 South Service Road, Suite 350
Melville, NY 11747
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Preview
FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _____..______..---------------------------------------------------------X SHELLEY KARTEN, and MARK KARTEN, Index: 151650/2014 Plaintiff, AFFIRMATION IN SUPPORT OF MOTION -against- FOR SUMMARY JUDGMENT 500-512 SEVENTH AVENUE LP, LLC., NEWMARK GRUBB KNIGHT FRANK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., GIBRALTAR CONTRACTING, INC. and G&E REAL ESTATE MANAGEMENT SERVICES, INC. Defendants. -------------------------------------------------------------------------X CONSOLIDATED EDISON COMPANY OF NEW YORK, Index: 595637/2015 INC., Plaintiff, -against- NAMOW, INC., Defendant. -------------------------------------------------------------------------X Amy A. Perry, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury and pursuant to CPLR 2106: 1. That I am associated with the Law Office of Virginia E. McDonald, attorneys for the third-party defendant NAMOW, INC. ("Namow"). As such, I am fully familiar with the facts and circumstances surrounding this action. The source of my information is the file maintained by this office. 2. This affirmation is made in support of third-party defendant Namow's motion seeking an Order granting Summary Judgment in its favor pursuant to CPLR 3212, and such other and further relief as to the Court may seem just and proper. There are no material issues 1 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 of fact to be adjudicated. As a matter of law, the instant action must be dismissed on the grounds that Namow never performed any work or services on the sidewalk where the alleged accident occurred. PROCEDURAL HISTORY 3. This is an action brought for personal injuries allegedly sustained as the result of an 7th accident that allegedly occurred on September 3, 2013 at or near 512 Avenue, New York, New York 10018. 4. Plaintiff initiated this suit by the filing of Summons and Complaint on February 25, 2014. See Summons and Complaint annexed hereto as Exhibit "A". 5. Defendant CONSOLIDATED EDISON COMPANY OF NEW YORK ("Con Ed") joined issue on April 7, 2014, followed by its co-defendants, 500-512 SEVENTH AVENUE LP, LLC., NEWMARK GRUBB KNIGHT FRANK, GIBRALTAR CONTRACTING, INC., and G&E REAL ESTATE MANAGEMENT SERVICES, INC. Defendants" (collectively "First-Party Defendants"). See Answers of First-Party Defendants annexed hereto as Exhibit "B". 6. Con Ed then initiated a third-party action against Namow on September 2, 2015, alleging negligence and breach of contract. See Third-Party Summons and Complaint annexed hereto as Exhibit "C". 7. Namow served itsAnswer to Con Ed's Third-Party Complaint on October 12, 2015. See Third-Party Answer annexed hereto as Exhibit "D". 8. This action was discontinued as against First-Party Defendant REAL ESTATE MANAGEMENT SERVICES, INC. on May 12, 2017. 2 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 FACTS 9. In the Summons and Complaint, Plaintiffs allege that on September 3, 2013, between approximately 1:30 PM and 2:00 PM, plaintiff Shelly Karten was caused to trip and fall 7th in front of the building located at 500-512 Ave., New York, New York (the "loss location" Defendants' location") as a result of First-Party negligence. 10. In itsThird-Party Summons and Complaint, Third-Party Plaintiff Con Ed alleges that Namow was negligent (although no work was ever performed by Namow at the loss location), and that Namow breached its contractual duties. 11. Third-Party Plaintiff Con Ed and Third-Party Defendant Namow entered into Blanket Purchase Agreement ("BPA") No. 130773, effective August 15, 2011-March 1, 2015. Per the BPA, Namow agreed, among other things, to perform sidewalk restoration work at various sites, including the loss location. See BPA annexed hereto as Exhibit "E". 12. As was its protocol, prior to any work being performed, on April 2, 2013, Namow sent a representative to inspect the sidewalk restoration site to determine whether the contract work could be completed and what materials were needed. This process is referred to as "birddogging." See Affidavit of Joseph Hassoune annexed hereto as Exhibit "F". 13. When Namow's representative arrived at the loss location where Plaintiff Shelly Karten allegedly tripped and fell,he saw that a scaffold was present, and that Namow's work site was thereby obstructed. Due to this scaffolding, Namow was unable to initiate, let alone perform, itscontract work. 14. In her deposition, Plaintiff Shelly Karten was asked if construction was going in the area where she allegedly tripped and fell.Per her testimony, she did not recall. She did state, 38th though, that there was a scaffold present when she turned onto West Street, and that 3 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 itwas present for an indeterminate amount of time prior to her alleged accident. See Plaintiff's transcript, pages 19-20, annexed hereto as Exhibit "G". 15. In her deposition, Plaintiff was then shown photographs of the loss location, with scaffolding present. She testified that that same scaffolding was present on the date of loss, September 3, 2013, mere months after Namow's inspection on April 2, 2013. See Plaintiff's transcript, pages at page 51, line 21-page 52, line 3 annexed hereto as Exhibit "G". See Defendant's Exhibit M (photographs) annexed hereto as Exhibit "H". 16. When Namow became aware that scaffolding was present, itnotified Con Ed of the condition at the loss location, and informed Con Ed that this condition prevented the contract work from being performed. 17. After Namow informed Con Ed of the scaffolding that was present, Con Ed provided no instructions on how Namow should proceed-therefore, Namow took no further action. 18. Based on Con Ed's failure to provide any instruction, Namow performed no work on the sidewalk and issued a Ticket indicating no work was done by Namow due to the presence of scaffolding at the location where the sidewalk work was to be done. See Ticket annexed hereto as Exhibit "I". 19. On February 18, 2015, almost two years later, and undoubtedly fueled by Plaintiff's Summons and Complaint, Namow received an email from Arthur Blind, a Consultant at Con Ed, inquiring as to why the contracted work for the sitewas not done. See emails annexed hereto as Exhibit "J". 20. The email in relevant part reads: 38th 8th 7th "Ps 569028 w St between ave and ave you picked thisjob up on job." 10/4/12 can you please tell me why you didn't do this 4 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 21. Joseph Hassoune, Namow's Project Manager at time, responded that the work had not been done due to the presence of the scaffold and the work order had been returned. Id. 22. Still,neither Mr. Blind nor any other Con Edison representative advised Namow that itfailed to follow protocol or proper procedures by not taking any further action than the actions taken above. ARGUMENT SINCE NO ISSUES OF FACT HAVE BEEN PRESENTED, THIS COURT SHOULD GRANT SUMMARY JUDGMENT IN FAVOR OF NAMOW, INC. THIRD-PARTY DEFENDANT NAMOW IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW AS THERE IS NO EVIDENCE THAT IT BREACHED ITS CONTRACT OR CREATED A DEFECTIVE OR HAZARDOUS CONDITION 23. It iswell settled that the owner or possessor of property is the party with the duty to maintain the property in a reasonably safe condition and may be held liable for injures condition" arising from a "dangerous on the property. Rodriguez v. E & P Associates, 20 Misc.3d 1129(A), 872 N.Y.S.2d 693 (1st Dept. 2008); Crawford v. Pick Quick Foods, Inc., 300 A.D.2d 431 (2d Dept 2002); Garry v. Rockville Centre Union Free School District, 272 A.D.2d 437 (2d Dept 2000); Reynolds v. Reynolds, 245 A.D.2d 498, 666 N.Y.S.2d 43 (2nd Dept. 1997). 24. Here, Con Ed's allegations of actual and constructive notice of an alleged condition at the subject location are not a basis for a finding of negligence against the contractor. Namow was not the owner, nor possessor of the subject property and therefore ithad no duty to maintain the property based on notice of an alleged condition. Accordingly, Con Ed's 5 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 contentions that Namow may be held liable based on either actual or constructive notice of the defect which plaintiff claims caused her injuries provides no basis for holding Namow liable to the Third-Party Plaintiff. 25. Further, there is absolutely no evidence in the record from which any negligence on the part of the defendant, Namow, can be established based on allegations that itcaused or created the condition which plaintiff maintains caused her injuries. 26. The entirety of the admissible evidence in this matter demonstrates that Namow performed no work, and had no involvement at the location whatsoever. The extent of its involvement is limited to having a representative inspect the conditions at the location to determine whether they were amenable, appropriate and susceptible to the performance of the sidewalk reconstruction work itwas seeking to perform at the location. 27. The inspector found the conditions to be unsuitable, rendering the performance of the restoration work at the location impossible, due to an existing scaffold above the sidewalk. Therefore, Namow was unable to proceed with its contract work at the location. 28. Third-Party Plaintiff Con Ed has not proffered any evidence to support, in what manner, or to what extent Namow caused or created the alleged defective, dangerous, hazardous, condition. 29. Contrarily, Third-Party Defendant has demonstrated that itcould not and did not perform any work at the location. Accordingly, Namow did not cause or create any condition that existed there at the time of plaintiff's accident. 6 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 THE CONDITIONS THAT EXISTED AT THE ACCIDENT SITE PREVENTED NAMOW'S CONTRACT PERFORMANCE 30. Further, Third-Party Plaintiff has offered no evidence to support that Namow was negligent in failing to perform contract work in the area of the subject occurrence. 31. There has been no showing that, contrary to Namow's claims, the scaffold which prevented itfrom performing its contract work at the time of its inspection and prior to plaintiff's accident was removed, or that the work could have been performed under the conditions that existed at the site prior to the time of Ms. Karten's accident. 32. Contrarily, the admissible evidence in this matter demonstrates that Namow made efforts to perform its contract work at the location, that the conditions which existed at the time itinspected the subject location prevented itscontract performance, and that Con Ed failed to remedy those conditions and provide Namow with notice that the circumstances no longer existed, and that the contract work could be undertaken. 33. The underlying principle of the law regarding contracts is that the promisor ordinarily is bound to perform his agreement according to its terms or, if he unjustifiably fails to perform, to respond in damages for his breach of the contract. Wilson & Co. v Fremont Cake & Meal Co. (1950) 153 Neb 160, 43 NW2d 657, cert den 342 US 812, Bunch v Potter (1941) 123 W Va 528, 17 SE2d 438. 34. Although mere unexpected difficulty, expense, or hardship involved in the performance of a contract does not excuse the promisor from his obligation to perform in accordance with his promise, where the difficulty or obstacle makes performance objectively impossible a promisor is excused from his nonperformance of the contractual obligation. 35. The evidence proffered in this case demonstrates that Namow prepared a route based on the logistics of performing its sidewalk restoration and other contract work for Con Ed. 7 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 36. When Namow inspected the subject accident location, itfound a scaffold had been erected above the area where itscontract work was to be performed. The existence of these conditions is supported by admissible evidence in the form of correspondence exchanged between Namow and Con Ed. 37. The existence of the scaffold at the location in and around the time of the subject occurrence is also corroborated in photographs which show a scaffold erected, at the accident site in photographs marked at plaintiff's deposition. See Exhibit "H". 38. Plaintiff testified that the scaffold was there at the time of and prior to the time of her fall. "G" See Exhibit at pages 19-20. 39. Further, the ticket related to work at the subject accident site indicates an inspection was performed yet no work proceeded. See Exhibit "I". See also Exhibit "F". 40. The admissible evidence demonstrates that Namow made efforts to undertake its contract duties at the subject location and was unable to do so (performance was an impossibility), due to an existing scaffold above the sidewalk where the restoration was to be performed. 41. The inspector notified Con Edison, either by email or verbally (which was consistent with itscourse of conduct in its contract — duties-See Exhibit to advise that executing "F"), the scaffold prevented work from being performed at the location. 42. Additionally, Namow documented that the scaffold existed at the location and later referred to that documentation, in responding to Con Ed's inquiry about work not having been performed at the site. 43. There is no indication that Con Ed ever made any inquiry regarding performance of work at the site, despite several complaints and notifications, until suit was commenced against itin this action. 8 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 44. There is also no evidence that the location was noted by Con Ed to be a hot spot requiring immediate attention. 45. Further, no evidence has been proffered to show that the Third-Party Plaintiff attempted at any time from the time itentered into the contract with Namow in 2011 up until the date of plaintiff's accident in 2013 to confirm that any work was performed at the location, or whether the conditions there permitted for such work to be performed. 46. Considering the admissible evidence in this case documenting through the work ticket, the email correspondence, and photographs that a scaffolding at the accident location prevented the sidewalk restoration work, from being performed, Namow may not be held liable for a failure to perform itscontract duties. The admissible evidence demonstrates that the conditions and circumstances that existed at the location at the time of the occurrence and prior thereto, prevented performance of NAMOW'S contract duties. CONCLUSION 47. In summary, Con Ed has failed to adduce proof in admissible form that Namow had any duty based on actual or constructive notice of a dangerous/defective condition at the subject accident location. 48. Con Ed has further failed to support any of itsother claims against Namow regarding alleged creation of such a dangerous condition at the location, as the fact that the condition already existed is the reason Namow was retained to perform work at the location. 49. Further, Con Ed may not sustain its claims of negligence against Namow for an alleged breach of its duties under the BPA as the admissible evidence demonstrates that itwas impossible for Namow to perform its contract duties at the subject site, as the existence of 9 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 a scaffold above the sidewalk where itwas retained to perform sidewalk restoration work, prevented such work from being undertaken. WHEREFORE, in view of the sufficiency of the proof in support of the within motion in favor of summary judgment, itis respectfully requested that this Honorable Court grant summary judgment in favor of Namow and grant such other and further relief as this Court deems just and proper. Dated: New York, New York August 13, 2018 Yours, etc. LAW OFFICE OF VIRGINIA E. McDONALD Attorneys for Third-Party Defendant NAMOW, INC. - 13th One Whitehall Street FlOOr New York, NY 10004-2109 Phone: (212) 248-9100 By: A Y A. PERRY TO: DAVID M. SANTORO Attorney for Third Party Plaintiff 4 Irving Place Borough of Manhattan New York, NY 10003 LAWRENCE B. SAFTLER, ESQ. THE SAFTLER LAW FIRM Attorneys for Plaintiffs 275 Madison Avenue, Suite 1605 New York, NY 10016 LAW OFFICES OF CRISCI, WEISER 4 McCARTHY 500-512 Seventh Avenue LP, LLC 8th 147 State Street, FlOOr New York, NY 10004 10 of 11 FILED: NEW YORK COUNTY CLERK 08/13/2018 09:29 PM INDEX NO. 151650/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 08/13/2018 CONWAY, GOREN & BRANDMAN Attorneys for Defendant G&E Real Estate Management Services, Inc. 58 South Service Road, Suite 350 Melville, NY 11747 11 of 11