Stevens v City of New York

Stevens v City of New York 2010 NY Slip Op 03235 [72 AD3d 550] April 22, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Rosalind Stevens, Appellant,
v
City of New York, Defendant, and Consolidated Edison Company of New York, Inc., Respondent.

—[*1] Rappaport, Glass, Greene & Levine, LLP, New York (James L. Forde of counsel), for appellant.

Richard W. Babinecz, New York (Helman R. Brook of counsel), for respondent.

Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered March 13, 2009, which, in an action for personal injuries sustained in a trip and fall allegedly caused by a roadway defect, granted defendant Consolidated Edison's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion denied.

An issue of fact as to whether Con Ed's cut extended through the crosswalk to the accident site is raised by the photos submitted by plaintiff in opposition to the motion showing a filled trench near the hole. Although it cannot be determined from the photos whether Con Ed made the trench, neither can it be determined, as Con Ed noted in its brief, whether "the trench is one continuous excavation." Absent evidence that the trench was made by a contractor unaffiliated with Con Ed, summary judgment should have been denied. We need not determine whether Con Ed's reply papers improperly raised new facts based on an investigation at the accident site it conducted after it had been served with plaintiff's opposition (see Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625-626 [1995]). In any event, one of the [*2]photos submitted with the reply papers appears to depict a cut extending through the crosswalk near the location of plaintiff's fall. Concur—Gonzalez, P.J., Saxe, Nardelli, McGuire and Moskowitz, JJ. [Prior Case History: 2009 NY Slip Op 30544(U).]