James Lewis, Plaintiff, v. The City of New York, et al., Defendants–Appellants, Consolidated Edison Company of New York, Defendant–Respondent. (2011)

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Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 2, 2010, which, in this personal injury action arising from a fall on a portion of a sidewalk immediately adjacent to a metal grate owned by defendant Consolidated Edison, insofar as appealed from as limited by the briefs, denied defendants-appellants' motion for summary judgment dismissing plaintiff's common-law negligence claim and Con Ed's cross claims, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint and all cross claims against them.

Defendants-appellants made a prima facie showing of entitlement to judgment as a matter of law with evidence that they did not have the “ability to exercise control” over the sidewalk defect that allegedly caused plaintiff's fall (Kaufman v. Silver, 90 N.Y.2d 204, 207 [1997];  Hurley v. Related Mgt. Co., 74 AD3d 648, 649 [2010] ).

In opposition, plaintiff and Con Edison failed to raise an issue of fact.   As the undisputed owner of the subject grate, Con Edison had exclusive maintenance responsibility over the grate and the area extending 12 inches outward from the perimeter of the grate (34 RCNY 2–07[b][1],[2] ), which included the alleged sidewalk defect that caused plaintiff's fall.   Accordingly, only Con Edison, and not defendants-appellants, may be liable for plaintiff's injuries (see Storper v. Kobe Club, 76 AD3d 426, 427 [2010];  Hurley, 74 AD3d at 649).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK