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ORTNER v. CITY OF NEW YORK

50 A.D.3d 475 (2008)

858 N.Y.S.2d 12

GERALDINE L. ORTNER, Appellant, v. CITY OF NEW YORK, Defendant, and E.J. EXCAVATING COMPANY, INC., Respondent. (And a Third-Party Action.)

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided April 17, 2008.

Respondent E.J. Excavating satisfied its burden of establishing prima facie entitlement to summary judgment with evidence that its repaving of the roadway in 1989 was satisfactorily performed and approved by the City. In opposition, plaintiff failed to raise a triable issue of fact. There was no evidence to support the conclusory opinion in plaintiff's expert's affidavit that plaintiff's accident was caused by a street pavement condition "due to the improper original placement...

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