256 E. 10th St. Ass.v.Consol. Edison N.Y

Appellate Division of the Supreme Court of New York, First DepartmentApr 17, 2001
282 A.D.2d 293 (N.Y. App. Div. 2001)
282 A.D.2d 293723 N.Y.S.2d 358

April 17, 2001.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about March 16, 2000, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Scott K. Nigro, for Plaintiff-appellant.

Helman R. Brook, for Defendant-respondent.

Before: Sullivan, P.J., Andrias, Ellerin, Rubin, Buckley, JJ.

Plaintiff's claim for breach of contract was properly dismissed. Defendant was not bound by the alleged oral agreement between plaintiff and an unidentified purported employee of defendant, which agreement is claimed to have obligated defendant to repair a gas leak without interrupting service to plaintiff's building regardless of the hazard involved. Summary judgment was also properly granted dismissing plaintiff's negligence claim in light of the absence of any triable issue as to whether defendant had been negligent or as to whether, even if defendant had been negligent, such negligence was causally related to the asserted harm (see, Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550; Murray v. New York City Hous. Auth., 269 A.D.2d 288, 289). It is plain that the need for repairs to the gas pipes in plaintiff's building was not eventuated by defendant's shut-off of gas to the building in order to repair a gas leak safely, but by the already sub-code condition of the building's nearly century-old pipes.

Finally, defendant's reliance upon an attorney's affirmation along with sworn deposition testimony in support of its motion was proper (see, Gaeta v. New York News Inc., 62 N.Y.2d 340, 350; Volpe v. Canfield, 237 A.D.2d 282, 283, lv denied 90 N.Y.2d 802) and sufficed to demonstrate defendant's prima facie entitlement to judgment as a matter of law.