A New York, New York, team comprising partner Greg Dell and associates Omar Graham and Sam Tarasowsky defended two clients, one that specializes in subsurface engineering and construction services and the other an international telecommunications company. The plaintiff alleged he sustained personal injuries when he hit a pothole in the roadway while riding his scooter and further alleged (1) that our client negligently performed work in the roadway based solely on the presence of a yellow marker/decal that appeared to bear partial initials of one client and/or (2) that the other client either created the pothole through its own work or directed such work on its behalf. The plaintiff claimed he sustained a fractured clavicle with significant shortening, requiring surgical repair.
Despite plaintiff's allegations, we provided affidavits to plaintiff's counsel indicating that the subsurface engineering company does not operate or perform work anywhere in the borough of Queens, demonstrating that it could not have created the pothole that caused plaintiff's injury. We also provided plaintiff's counsel with an affidavit confirming that the telecommunications company only performs administrative duties and is not involved in any roadway maintenance, excavation or paving, thus showing he had named the wrong entity. Omar and Greg even offered to substitute the appropriate entity that would be responsible for performing roadway maintenance, who after further investigation also had no underground facilities or infrastructure at the subject intersection, in an effort to streamline the case. However, despite these efforts, plaintiff's counsel ultimately refused to discontinue the case against our clients forcing a motion for summary judgment.
Supported by the aforementioned affidavits, plus an additional affidavit from a non-party client who would have been responsible for road maintenance had any facilities existed at the location of the accident, our motion established that neither of our clients had any presence, nor performed any work, and therefore could not have created the alleged condition at the subject location. Both the plaintiff and one of the codefendants opposed the motion, essentially arguing that discovery was incomplete and that notwithstanding our clients' affidavits, discovery could potentially reveal evidence to the contrary.
Justice Tracy Catapano-Fox found that the oppositions failed to raise a triable issue of fact, and agreed with our argument on reply that the opposing arguments were speculative and failed to show any support that additional discovery might lead to evidence against our clients. The motion was swiftly decided on submission just three weeks later. The initial moving papers were prepared by Sam, pinch-hitting while Omar was on leave, and Omar prepared two separate replies to each untimely opposition.
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