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Morgan v. New York Telephone

Appellate Division of the Supreme Court of New York, Second Department
Oct 30, 1995
220 A.D.2d 728 (N.Y. App. Div. 1995)

Opinion

October 30, 1995

Appeal from the Supreme Court, Kings County (Greenstein, J.).


Ordered that the order is reversed, on the law, with one bill of costs payable by the plaintiff and the City of New York, the motion for summary judgment is granted, and the second third-party complaint and all cross claims are dismissed insofar as asserted against the appellant.

The plaintiff alleges that she was injured when she tripped over telephone wires that were negligently installed by the defendants at her work place. A telephone system at that location had been manufactured by the second third-party defendant Nepon Electric Corporation of America (hereinafter NEC) and sold to the City of New York (hereinafter the City) pursuant to a distribution agreement with Tel Plus Communications, Inc. (hereinafter Tel Plus). Pursuant to an installation contract between the City and Tel Plus, the City determined where to install the equipment while Tel Plus designed the layout for the wires. The City was present when the wires were installed. There is no contention that the wires were negligently manufactured.

NEC moved for summary judgment, alleging that it did not install or maintain any of the equipment at the plaintiff's work site and thus could not be held liable for any injury. Counsel for the plaintiff and the remaining second third-party defendants opposed the motion, arguing that there was a question of fact as to whether NEC did, or was required to, provide installation instructions or warnings.

It is now well settled that a party appearing in opposition to a motion for summary judgment must lay bare its proof and present evidentiary facts sufficient to raise a genuine triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065; World Trade Knitting Mills v. Lido Knitting Mills, 154 A.D.2d 99). Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation (see, Federal Deposit Ins. Corp. v Jacobs, 185 A.D.2d 913; Smith v. Johnson Prods. Co., 95 A.D.2d 675).

In responding to NEC's evidence that its distribution agreement with Tel Plus required Tel Plus to sell and install NEC's telephone equipment, none of the opposing parties identified a triable issue of fact.

Accordingly, the motion for summary judgment was improperly denied. Bracken, J.P., Santucci, Joy and Friedmann, JJ., concur.


Summaries of

Morgan v. New York Telephone

Appellate Division of the Supreme Court of New York, Second Department
Oct 30, 1995
220 A.D.2d 728 (N.Y. App. Div. 1995)
Case details for

Morgan v. New York Telephone

Case Details

Full title:SHIRLEY MORGAN, Plaintiff, v. NEW YORK TELEPHONE, Defendant and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 30, 1995

Citations

220 A.D.2d 728 (N.Y. App. Div. 1995)
633 N.Y.S.2d 319

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