Pepitone v. Consolidated Edison Co. of N.Y.

Pepitone v Consolidated Edison Co. of N.Y. (2016 NY Slip Op 03971)

Pepitone v Consolidated Edison Co. of N.Y.

2016 NY Slip Op 03971

Decided on May 19, 2016

Appellate Division, First Department

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.

Decided on May 19, 2016
Tom, J.P., Saxe, Richter, Gische, Webber, JJ.

1197 109977/10

[*1]Edward Pepitone, Plaintiff-Appellant,

v

Consolidated Edison Company of New York, et al., Defendants, Time Warner Entertainment, Defendant-Respondent.

Pollack, Pollack, Isaac & De Cicco, LLP, New York (Beth S. Gereg of counsel), for appellant.

Newman Myers Kreines Gross Harris, P.C., New York (Richard E. Schmedake of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 8, 2014, which granted the motion of defendant Time Warner Entertainment for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion denied.

The motion was improperly granted in this action where plaintiff was injured when cable lying in the roadway became entangled in his car as he was driving, causing the car to become airborne. Similar cable was hanging from a utility pole near the scene and Time Warner's employee testified that Time Warner owned some of the cable on the pole. The employee also said that Time Warner did not regularly inspect its cable, but only responded to complaints or reports of problems, of which there were none at the location near the time of the accident. Furthermore, an employee of a telephone company identified the cable that caused the accident as belonging to Time Warner, and plaintiff's coworker testified that he saw the cable hanging down near the accident scene during the two-month period before the accident. Accordingly, [*2]factual issues exist as to whether Time Warner owned the cable and whether it had constructive notice of the dangerous condition (see generally Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2016

CLERK