The Supreme Court of New York, New York County recently denied an electrical contractor’s motion for summary judgment where that contractor failed to sufficiently establish that it did not cause or create the allegedly dangerous condition that caused the plaintiff’s fall. In Bernfeld v. CRC Assoc., Inc., 2023 N.Y. Misc. LEXIS 249 (January 17, 2023), plaintiff, Lawrence Bernfeld, exited his apartment building located on West 79th Street in Manhattan when he stepped out onto the sidewalk and slipped on a patch of ice next to a fire hydrant approximately 40 to 50 feet from the intersection of West 79th Street and Amsterdam Avenue. He would later testify that he did not see the icy condition prior to his fall, but that there was construction taking place on the roadway and sidewalk outside of his building. The porter and building superintendent at plaintiff’s building each offered testimony stating that a hose was attached to the fire hydrant at issue on the date of the accident by two unknown workers and that the hose and hydrant were actively leaking water.
Defendant, CRC Associates, Inc. (hereafter “CRC”) was hired by the Metropolitan Transit Authority to perform electric work related to the installation of fare collection machines, which would require CRC to lay wiring under the sidewalk for the fare machine installation. CRC’s owner testified that he subcontracted sidewalk demolition, excavation, restoration and site protection work to defendant, Primetime Excavating (hereafter “Primetime”). Primetime’s president testified that it did perform this concrete work and that it would have reason to use water at a job site to clean its tools. Primetime’s job site superintendent and safety coordinator testified that when Primetime had occasion to use water for its concrete saws, it had water tanks on its trucks, which left it with no reason to extract water from the fire hydrant on the date of the accident.
Given the testimony of its president and testimony offered by Primetime representatives, CRC moved for summary judgment arguing that it did not use the fire hydrant on the date of the accident and could not have created the allegedly dangerous condition that caused Plaintiff’s fall. The Supreme Court began its analysis of CRC’s motion by noting that “where a contractor working on a public sidewalk or roadway establishes that it did not cause or create the allegedly dangerous condition on which the plaintiff fell, summary judgment in favor of that contractor is appropriate.” see Camacho v. City of New York, 135 A.D.3d 482, 482 (1st Dept 2016); Levine v. City of New York, 101 A.D.3d 419, 420 (1st Dept 2012). CRC’s president specifically testified that CRC employees were working on Amsterdam Avenue on the date of the accident and its electricians would have no reason to use water in performing their work at this location. Primetime’s job site superintendent added that he was unaware of any need for CRC’s electricians to use water on the date of the accident.
However, the Court denied CRC’s motion for summary judgment without considering the opposition filings because it found that CRC failed to meet its burden of proof and triable issues of fact still existed. Specifically, the Court found that the testimony of CRC’s president was insufficient because he was not present at the job site on the date of the accident and lacked personal knowledge as to CRC’s actions or inactions. CRC did not offer any testimony from the two electricians on site on the date of the accident, each of which may have had personal knowledge superior to that of CRC’s president. Moreover, the Court found that Primetime’s superintendent could not definitively state whether CRC employees used the hydrant on the date of the accident, which was also insufficient to prove that CRC did not create the alleged dangerous condition. Moreover, the Court noted that even if CRC had met its burden of proof, the testimony of the porter and building superintendent for Plaintiff’s building, stating that they saw a hose dripping water from the fire hydrant on the date of the accident, created a triable issue of fact sufficient to defeat CRC’s motion for summary judgment.
Ultimately, the Court’s decision hinged on the sufficiency of the defendants’ collective testimony and the lack of personal knowledge supporting that testimony. Without even considering the opposition filings, the Court took a firm stance on the unreliable nature of evidence lacking personal knowledge and its use in dispositive motion practice.
