ST CLAIR v. Brooklyn Union Gas Company, et al., appellants. (1999)

In an action to recover damages for personal injuries, the defendants Brooklyn Union Gas Company and New York Paving, Inc., separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), entered April 6, 1998, as denied their respective motions for summary judgment dismissing the complaint and cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants to the defendant-respondent.

The appellants did not make out a prima facie showing of entitlement to judgment as a matter of law because their moving papers did not “demonstrate the absence of any material issue of fact” (Daniels v. Judelson, 215 A.D.2d 623, 624, 628 N.Y.S.2d 314;  see also, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In evaluating whether there are genuine factual issues, if the court has “any doubt as to the existence of a triable issue of fact, the motion for summary judgment should be denied” (Daniels v. Judelson, 215 A.D.2d, supra, at 624, 628 N.Y.S.2d 314;  see also, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068).

Although the appellants provided the dates and specific scope of the work they performed at the intersection where the automobile accident in question occurred, neither appellant definitely established whether the exposed manhole cover which caused the accident was within the area of their work.   Even if we accept the appellants' computer records as sufficient evidence that they had completed their work at the intersection prior to the accident (see, Schneider Fuel Oil v. DeGennaro, 238 A.D.2d 495, 496, 656 N.Y.S.2d 668), this does not dispel doubt as to whether they left the road surface surrounding the manhole in a safe and nondefective condition.

MEMORANDUM BY THE COURT.