Kevin Johnston v City of New York

Johnston v City of New York 2005 NY Slip Op 04193 [18 AD3d 712] May 23, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 20, 2005

Kevin Johnston et al., Respondents,
v
City of New York, Respondent, and Brooklyn Union Gas Company, Doing Business as Keyspan Energy Delivery of New York, Appellant.

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In an action to recover damages for personal injuries, etc., the defendant Brooklyn Union Gas Company, doing business as Keyspan Energy Delivery of New York, appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated August 20, 2004, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The appellant failed to tender sufficient evidence to eliminate all triable issues of fact as to whether it created the defect in the roadway, which was an alleged proximate cause of the subject accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In view of the foregoing, the appellant failed to make a prima facie showing of entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment. Ritter, J.P., Goldstein, Luciano and Lifson, JJ., concur.