Opinion
October 26, 1970
In this negligence action to recover damages for personal injuries, (1) plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered May 8, 1970 in favor of all defendants against plaintiffs, in favor of third- and fourth-party defendant against third- and fourth-party plaintiffs, and in favor of defendants Handelson and Feinberg against defendant City of New York upon the latter's cross complaint, on the trial court's decision at the close of the entire case on a jury trial (the parties had stipulated that the issues on the third- and fourth-party complaints and the cross complaint be decided by the trial court); and (2) third-party plaintiffs cross-appeal from so much of the judgment as dismissed their third-party complaint against Consolidated Edison Company. Judgment modified, on the law, (1) by striking from the first decretal paragraph thereof so much of the provision dismissing plaintiffs' complaint as is applicable to defendant City of New York, (2) by striking from the fourth decretal paragraph so much thereof as awards costs to defendant City of New York against plaintiffs and (3) by adding thereto the provision that, as between plaintiffs and defendant City of New York, the action is severed and a new trial is granted. As so modified, judgment affirmed, with costs to defendants William Handelson and Morris Feinberg, doing business as Steinway Blind Glass Co., against plaintiffs, and, as between plaintiffs and defendant City of New York, with costs to abide the event of the new trial. No questions of fact were considered. This determination is without prejudice to such motion as defendant City of New York might make at Special Term to reinstate its fourth-party complaint against Consolidated Edison Company (cf. Cohen v. Greeley Sq. Bldg. Corp., 15 Misc.2d 42, mod. 8 A.D.2d 741). In our opinion, in this case where impleaded defendant Consolidated Edison Company maintained a metal box housing a gas cut-off valve on a sidewalk, which box protruded and was elevated, according to defendants, one and one-half inches above the surrounding sidewalk pavement, and it is undisputed and corroborated that plaintiff Frances Di Grazia's foot was caught under this elevated protrusion while walking along the sidewalk, it was for the jury to determine whether the maintenance of that condition constituted actionable negligence on the part of defendant City of New York and Consolidated Edison Company ( Thomson v. City of New Rochelle, 26 N.Y.2d 1047). Martuscello, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.