Opinion
No. 202 SSM 23.
Decided September 16, 2008.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 11, 2008. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Milton A. Tingling, J.), which had granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff construction worker allegedly was injured while standing in the street replacing gas lines. Defendant power company's driver stopped to give plaintiff pipe hangers. According to plaintiff, he was standing between his work truck and defendant's van when he took the hangers, walked away two or three steps, turned his back toward defendant's van to work on a vise, was knocked over and his foot was crushed.
The Appellate Division majority concluded that defendants made out a prima facie case of entitlement to summary judgment; and that, even if plaintiffs evidence had been sufficient to raise a question concerning how the accident occurred, in the absence of any proof as to how plaintiff sustained his injury, it failed to raise a triable issue of fact with respect to the alleged negligent operation of defendant's vehicle.
The dissent concluded that issues of fact were presented regarding exactly how plaintiffs foot was crushed and whether the driver was negligent.
McCleery v Consolidated Edison of N.Y., Inc., 49 AD3d 312, reversed.
Thomas Torto, New York City, for appellants.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York City ( Richard Lerner and Melissa Murphy-Petros of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, with costs, and defendants' motion for summary judgment denied. We agree with the dissenting justices at the Appellate Division that the injured plaintiff presented issues of fact as to how his foot was crushed and whether his injuries were a result of the Consolidated Edison driver's negligence, which preclude the grant of summary judgment to defendants.