PACHECO v. Consolidated Edison Company of New York, et al., defendants-respondents. (2006)

In an action to recover damages for personal injuries, etc., the defendant Keyspan Corporation appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated May 18, 2005, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the motion of the defendant Keyspan Corporation (hereinafter Keyspan) for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   Keyspan failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Keyspan failed to establish that it did not own or maintain the pipe or gas valve with the allegedly missing cover which caused the infant plaintiff to fall (see Adler v. Suffolk County Water Auth., 306 A.D.2d 229, 230, 760 N.Y.S.2d 523;  Migdol v. City of New York, 291 A.D.2d 201, 737 N.Y.S.2d 78).   Keyspan also failed to establish that it did not make a special use of the sidewalk where the pipe or gas valve was located (see Romano v. County of Monroe, 149 A.D.2d 952, 540 N.Y.S.2d 83).   Since Keyspan failed to meet its initial burden as the movant, the sufficiency of the plaintiffs' opposition papers need not be considered (see Britto v. Great Atl. & Pac. Tea Co., 21 A.D.3d 436, 799 N.Y.S.2d 828;  Joachim v. 1824 Church Ave., 12 A.D.3d 409, 784 N.Y.S.2d 157;  see generally Winegrad v. New York Univ. Med. Ctr., supra at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Keyspan's remaining contentions are without merit.