Elidis Reyes v. 45 & 47 Wadsworth Avenue Company, LLC, Verizon New York Inc., and Nico Asphalt Paving, Inc.
Attorneys and Parties
Brief Summary
Roadway/crosswalk defect liability and parent–subsidiary vicarious liability in a trip-and-fall case arising from utility/roadwork.
Granted summary judgment dismissing the complaint as to Nico Asphalt Paving, Inc. and Empire City Subway Company (Limited) (ECS); denied summary judgment to Verizon New York Inc.
The grants of summary judgment to Nico and ECS were reversed; the claims against them were reinstated.
Plaintiff’s deposition identifications using two photographs (exhibits H and D) created triable issues of fact as to the precise location of the defect relative to defendants’ work; the minor inconsistency went to credibility, not a feigned issue. Verizon’s denial of summary judgment was affirmed because the record lacked evidence of the parent–subsidiary relationship and control between Verizon and ECS, leaving potential vicarious liability unresolved.
Background
Plaintiff alleges she tripped and fell on a roadway defect in a crosswalk caused by prior utility/roadway work. Defendants included Verizon New York Inc. and its wholly owned subsidiary Empire City Subway Company (Limited) (ECS), as well as Nico Asphalt Paving, Inc. Defendants argued their work was not at the spot of the fall, relying on a deposition photograph (exhibit H) where plaintiff circled the area of her foot at the time of the twist/fall and records showing their work was some distance away. Plaintiff pointed to another deposition photograph (exhibit D) marked with a red Post-it arrow indicating the hole where she fell, which appeared only a short distance from the first marked area.
Lower Court Decision
Supreme Court, Bronx County (June 17, 2024) granted Nico’s motion for summary judgment dismissing the complaint against it; granted Verizon/ECS’s motion to the extent of dismissing the complaint against ECS; and denied that motion as to Verizon, leaving Verizon in the case.
Appellate Division Reversal
The Appellate Division modified: it denied Nico’s motion and denied Verizon/ECS’s motion as to ECS, reinstating the claims against both Nico and ECS. It affirmed the denial of summary judgment to Verizon, but on a different ground—because Verizon and ECS offered no evidence of their corporate relationship or the extent of Verizon’s control over ECS, Verizon failed to establish entitlement to judgment as a matter of law while a viable tort claim remains against ECS, for which Verizon could be vicariously liable.
Legal Significance
Minor inconsistencies in a plaintiff’s deposition photo identifications of an accident location—especially when given minutes apart and within close proximity—raise credibility and weight issues for the factfinder, not grounds for summary judgment based on feigned testimony. Additionally, a corporate parent is generally not liable for a subsidiary’s torts absent complete domination and control, but a parent seeking summary judgment must produce evidence of the relationship; without such proof, potential vicarious liability precludes dismissal at the summary judgment stage.
Where deposition photos mark nearby but not identical locations of a defect, the discrepancy typically presents a jury question and defeats summary judgment; and a parent company cannot obtain summary judgment on vicarious liability without evidentiary proof of the parent–subsidiary relationship and lack of control.