SELBY v. NYC (2006)

In an action to recover damages for personal injuries, etc., the defendant Keyspan Energy Delivery, NYC, appeals from (1) an order of the Supreme Court, Kings County (Partnow, J.), dated November 24, 2004, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and (2) an order of the same court dated March 30, 2005, which denied its motion for leave to renew.

ORDERED that the orders are affirmed, with one bill of costs.

Although the defendant Keyspan Energy Delivery, NYC (hereinafter Keyspan), submitted evidence sufficient to establish its prima facie entitlement to judgment as a matter of law (see Shvartsberg v. City of New York, 19 A.D.3d 578, 579, 798 N.Y.S.2d 85), in opposition, the plaintiffs raised a triable issue of fact as to whether Keyspan created the alleged defect in the sidewalk which allegedly had caused the infant plaintiff to fall (see Cucuzza v. City of New York, 2 A.D.3d 389, 391, 767 N.Y.S.2d 853;  Gerena v. Town of Brookhaven, 280 A.D.2d 450, 451-452, 720 N.Y.S.2d 171).   Accordingly, the Supreme Court properly denied Keyspan's motion for summary judgment.

Contrary to Keyspan's contention, the Supreme Court did not improvidently exercise its discretion in denying its motion for leave to renew (see CPLR 2221).