A motorist injured when a van struck his vehicle in a bridge construction zone sued the City of New York for damages. The City filed a third-party claim against the construction firm, contending that the absence of construction cones contributed to the collision. The Supreme Court, New York County granted the bridge construction firm's request for summary judgment. When the City appealed, the Supreme Court, Appellate Division, First Department determined from the trial testimony that cones had been located at the scene of the incident and that the presence or absence of such cones could not be determined to have caused the collision.

THE INCIDENT

While driving across a bridge under construction, Herman Reynolds suffered injuries when his vehicle was struck by a van that crossed the center line. The van swerved when it encountered wet pavement on the bridge. Reynolds sued the City of New York (City) for damages for his injuries. The City issued a third-party claim against the construction firm, based upon the firm's alleged failure to use construction cones at the site.

TRIAL COURT DECISION

The bridge construction company moved for summary judgment. On May 31, 1994, the Supreme Court, New York County granted the motion and dismissed the City's third-party complaint.

APPEALS COURT DECISION

The Supreme Court, Appellate Division, First Department considered the City's argument that the summary judgment was "improperly based on inadmissible evidence." The court held that the City's contention was "improperly raised for the first time on appeal" and was "without merit."

The court reviewed testimony from the driver of the van. This "uncontroverted testimony" established that the van knocked divider cones down as it swerved across the bridge (Smith v. Johnson Prods. Co., 95 A.D.2d 675, 676, 463 N.Y.S.2d 464). The court found that this testimony placed the burden on the City of proving a "triable issue of fact" regarding the prima facie showing that "the collision was not caused by the absence of lane-divided cones" at the site. The City failed to provide any evidence that there were no cones on the area of the bridge where the collision occurred. The City also failed to explain how an absence of cones could have caused the swerving of the van, or how a presence of cones could have kept the van out of the lane of oncoming traffic.

In its examination of the trial court's testimony, the appeals court found only a suggestion by the City that the absence of lane dividers at the site may have "confused" the van driver and caused that driver to cross into the oncoming lane. The court upheld the trial court's decision to grant summary judgment, stating that "[s]uch bald conjecture under these circumstances was insufficient to defeat the motion for summary judgment."

The court further held that "[e]ven assuming that the third-party defendants acted improperly, the City has made no showing that their action or inaction was a substantial cause of the events that produced the injuries (see, Frank v. City of New York, 163 A.D.2d 254, 255, 558 N.Y.S.2d 74)."

On November 9, 1995, the Supreme Court, Appellate Division unanimously affirmed the trial court's dismissal of the City's third-party complaint, without costs.