NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
April 22, 2010
ROSALIND STEVENS, PLAINTIFF-APPELLANT,
THE CITY OF NEW YORK, DEFENDANT, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., DEFENDANT-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.
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.
Gonzalez, P.J., Saxe, Nardelli, McGuire, Moskowitz, JJ.
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 ). In any event, one of the photos submitted with the reply papers appears to depict a cut extending through the crosswalk near the location of plaintiff's fall.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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