Kimberly Mayfield et al., Appellants, v. City of New York et al., Defendants, and Migoya Construction Corporation, Also Known as Migoya Const. Corp., Respondent. (And Other Actions.)

Kimberly Mayfield et al., Appellants, v City of New York et al., Defendants, and Migoya Construction Corporation, Also Known as Migoya Const. Corp., Respondent. (And Other Actions.) [682 NYS2d 848] [MAJORITY] —Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 9, 1997, which granted defendant Migoya Construction Corporation’s motion for summary judgment dismissing the complaint against it, unanimously affirmed, without costs. There is no genuine issue of fact with respect to the conclusion that plaintiff Kimberly Mayfield’s negligence was the sole cause of the accident that caused her injuries. However, even if a pothole had caused the accident, defendant Migoya would not be liable, as a matter of law, because it had not yet begun work in the area of the accident when it occurred (see, Hirsch v Schwartz & Cohn, 256 NY 7, 13). Concur — Sullivan, J. P., Nardelli, Rubin and Mazzarelli, JJ.