Opinion
2002-07939
Argued May 6, 2003.
June 2, 2003.
In an action to recover damages for personal injuries, etc., the defendant Suffolk County Water Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Hall, J.), entered July 26, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Fiedelman McGaw, Jericho, N.Y. (James K. O'Sullivan of counsel), for appellant.
Tartamella, Tartamella Fresolone, Hauppauge, N.Y. (Michael Tartamella of counsel), for respondents.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, SONDRA MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff David N. Adler was injured on August 23, 1998, at about 9:00 A.M., when the front wheel of his bicycle hit a depression in the roadway on Maple Avenue in the Town of Smithtown, County of Suffolk, causing him to fall. The alleged defect in the roadway was an open concentric region, approximately five inches deep, which surrounded a water valve box allegedly installed by the defendant Suffolk County Water Authority (hereinafter the SCWA).
The SCWA failed to satisfy its burden on its motion for summary judgment of establishing in the first instance its entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The SCWA did not submit any evidence with its moving papers to establish that it did not install the water valve box or that it did not create the alleged defect in the roadway by installing the water valve box in a negligent manner (see Atiles v. City of New York, 279 A.D.2d 543; cf. Pierre v. City of New York, 273 A.D.2d 368; Verdes v. Brooklyn Union Gas Co., 253 A.D.2d 552, 553; Delano v. Consolidated Edison Co. of N.Y., 231 A.D.2d 671; Kobet v. Consolidated Edison Co. of N.Y., 176 A.D.2d 785, 786). The evidence submitted by the SCWA for the first time in its reply was properly disregarded by the Supreme Court (see Johnston v. Continental Broker-Dealer Corp., 287 A.D.2d 546; Chavez v. Bancker Constr. Corp., 272 A.D.2d 429).
Accordingly, the Supreme Court correctly denied the SCWA's motion for summary judgment.
RITTER, J.P., SMITH, S. MILLER and ADAMS, JJ., concur.