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St. Clair v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Nov 8, 1999
266 A.D.2d 277 (N.Y. App. Div. 1999)

Opinion

Submitted October 1, 1999

November 8, 1999

Cullen and Dykman, Brooklyn, N.Y. (Nicholas L. Magali of counsel), for appellant Brooklyn Union Gas Company.

Fiedelman McGaw, Jericho, N.Y. (Susan E. Lysaght of counsel), for appellant New York Paving, Inc.

Michael D. Hess, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Dona B. Morris of counsel), for defendant-respondent City of New York.

WILLIAM D. FRIEDMANN, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.


DECISION ORDER

In an action to recover damages for personal injuries, the defendants Brooklyn Union Gas Company and New York Paving, Inc., separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), entered April 6, 1998, as denied their respective motions for summary judgment dismissing the complaint and cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants to the defendant-respondent.

The appellants did not make out a prima facie showing of entitlement to judgment as a matter of law because their moving papers did not "demonstrate the absence of any material issue of fact" (Daniels v. Judelson, 215 A.D.2d 623, 624 ; see also, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 ). In evaluating whether there are genuine factual issues, if the court has "any doubt as to the existence of a triable issue of fact, the motion for summary judgment should be denied" (Daniels v. Judelson, 215 A.D.2d, supra, at 624; see also, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 ).

Although the appellants provided the dates and specific scope of the work they performed at the intersection where the automobile accident in question occurred, neither appellant definitely established whether the exposed manhole cover which caused the accident was within the area of their work. Even if we accept the appellants' computer records as sufficient evidence that they had completed their work at the intersection prior to the accident ( see, Schneider Fuel Oil v. DeGennaro, 238 A.D.2d 495, 496 ), this does not dispel doubt as to whether they left the road surface surrounding the manhole in a safe and nondefective condition.

FRIEDMANN, J.P., FLORIO, SCHMIDT, and SMITH, JJ., concur.


Summaries of

St. Clair v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Nov 8, 1999
266 A.D.2d 277 (N.Y. App. Div. 1999)
Case details for

St. Clair v. City of New York

Case Details

Full title:IVORY ST. CLAIR, et al., plaintiffs-respondents, v. CITY OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 8, 1999

Citations

266 A.D.2d 277 (N.Y. App. Div. 1999)
698 N.Y.S.2d 285

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