Opinion
1991
October 24, 2002.
Order, Supreme Court, New York County (Joan Madden, J.), entered on or about June 28, 2001, which, inter alia, denied the motion of defendant Tri-Messine Construction Co. and the cross motion of defendant Empire City Subway Company for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
NORMAN E. FROWLEY, for plaintiff-respondent.
KATHLEEN ALBERTON, for defendant-respondent.
ANTHONY J. McNULTY and STEVEN B. PRYSTOWSKY, for defendants-appellants.
Before: Williams, P.J., Buckley, Sullivan, Lerner, JJ.
Defendants-appellants did not carry their burden, as summary judgment movants, of showing the absence of an issue of fact as to whether they did not do either the 1996 or 1998 work that left the asphalt lump, evidenced by photographs, upon which plaintiff allegedly tripped in November of the same year. The record discloses that defendant Empire City had a permit, valid in July 1998, to excavate at the subject location and had previously, in 1996, installed 12 telecommunications conduits there. Empire City's witness merely testified that she had found no records showing work pursuant to the 1998 permit. The witness for defendant Tri-Messine, a re-paver, merely disclaimed knowledge of the 1998 permit, as he had of the 1996 work by Tri-Messine at the subject location, that is plainly evidenced in the record. Summary judgment was therefore properly denied (see Winegrad v. New York Univ Med. Ctr., 64 N.Y.2d 851, 853).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.