Landsiedel v. Consolidated Edison Co. , 542 N.Y.S.2d 377 ( 1989 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Wood, J.), dated November 19, 1987, which, upon granting the defendant third-party plaintiff’s motion for judgment during trial (CPLR 4401), inter alia, dismissed the complaint as against it.

Ordered that the order and judgment is reversed, on the law, and a new trial is granted as against the defendant third-party plaintiff and the defendant Consolidated Edison Company of New York, with costs to abide the event.

Viewed in a light most favorable to the plaintiff, the evidence produced at trial was legally sufficient to permit the jury to infer that her injuries were caused by the defendants’ negligent failure to properly maintain the site of an excavation which they had created in a public roadway (see generally, Friedman v City of New York, 25 NY2d 764; Benjamin v Trebatch, 271 NY 513; Brown v German Rock Asphalt Co., 236 NY 271; Schulman v Consolidated Edison Co., 85 AD2d 186; Bolsenbroeck v Tully & Di Napoli, 12 AD2d 376, affd 10 NY2d 960; 4A Warren, Negligence in the New York Courts, Excavations, § 9.01 et seq.). The trial court therefore erred in granting the motion for judgment during trial (CPLR 4401). Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.