Kimberly Sheehan (Of Counsel-White Plains, NY) and Lindsay Kalick (Partner-New York, NY) secured summary judgment in the New York State Supreme Court, Bronx County, on behalf of Wilson Elser’s client, a plumbing company, resulting in dismissal of all claims before any depositions were conducted. The 40-year-old plaintiff alleged he sustained serious injuries when his electric scooter hit a pothole near a Bronx intersection and sought significant damages for injuries requiring lumbar spine fusion and shoulder surgery. Our client plumbing company had performed underground road work more than 636 feet away from the alleged pothole three months prior to the date of the incident. The plaintiff sued the parent construction company, although the work was performed by our client.

Kimberly and Lindsay moved for summary judgment, arguing that our client neither performed work at the accident location nor created the alleged roadway defect. They further argued that the court’s prior decision granting summary judgment to a codefendant on the same grounds constituted the “law of the case,” warranting the same result for our client. Their motion relied on an affirmation from the client’s representative attesting to the lack of any work performed at the accident location.

While the motion was pending, the plaintiff sought to proceed with depositions, arguing that the motion was premature. Kimberly and Lindsay successfully opposed those efforts, and the court held that the pending summary judgment motion stayed discovery. The court ultimately rejected the plaintiff’s contention that additional discovery might uncover evidence sufficient to defeat the motion.

In granting summary judgment, the court adopted the substantive arguments advanced by Wilson Elser, finding that:

• Our client established its prima facie entitlement to judgment through its representative’s affirmation, demonstrating that neither it nor its parent company performed work at the accident location and that its completed work was approximately 636.56 feet away.
• The plaintiff failed to raise a triable issue of fact, as speculation that our client’s work may have affected potholes two blocks away was insufficient.
• The plaintiff’s argument that the motion was premature was unavailing because the mere hope that future discovery might reveal supporting evidence does not justify denying summary judgment.

The dismissal eliminated the client’s exposure to significant damages in the Bronx County venue.