Lewis v City of New York

Lewis v City of New York 2011 NY Slip Op 07679 Decided on November 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 1, 2011
Gonzalez, P.J., Tom, Sweeny, Renwick, JJ.
5909 113626/06

[*1]James Lewis, Plaintiff,

v

The City of New York, et al., Defendants-Appellants, Consolidated Edison Company of New York, Defendant-Respondent.




Fabiani Cohen & Hall, LLP, New York (Anita D. Bowen of
counsel), for appellants.
Richard Babinecz, New York (Helman R. Brook of counsel), for
respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 2, 2010, which, in this personal injury action arising from a fall on a portion of a sidewalk immediately adjacent to a metal grate owned by defendant Consolidated Edison, insofar as appealed from as limited by the briefs, denied defendants-appellants' motion for summary judgment dismissing plaintiff's common-law negligence claim and Con Ed's cross claims, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint and all cross claims against them.

Defendants-appellants made a prima facie showing of entitlement to judgment as a matter of law with evidence that they did not have the "ability to exercise control" over the sidewalk defect that allegedly caused plaintiff's fall (Kaufman v Silver, 90 NY2d 204, 207 [1997]; Hurley v Related Mgt. Co., 74 AD3d 648, 649 [2010]).

In opposition, plaintiff and Con Edison failed to raise an issue of fact. As the undisputed owner of the subject grate, Con Edison had exclusive maintenance responsibility over the grate and the area extending 12 inches outward from the perimeter of the grate (34 RCNY 2-07[b][1],[2]), which included the alleged sidewalk defect that caused plaintiff's fall. Accordingly, only Con Edison, and not defendants-appellants, may be liable for plaintiff's injuries (see Storper v Kobe Club, 76 AD3d 426, 427 [2010]; Hurley, 74 AD3d at 649).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2011 [*2]

CLERK