Opinion
July 27, 1998
Appeal from the Supreme Court, Westchester County (DiBlasi, J.).
Ordered that the appeal from the order entered July 25, 1997, is dismissed, as that order was superseded by the order entered September 19, 1997, made upon reargument, and it is further,
Ordered that the order entered September 19, 1997, is modified by deleting the provision thereof granting that branch of the cross motion of the defendants Village of Mt. Kisco and John Pierpont which was for summary judgment dismissing all cross claims insofar as asserted against them and substituting therefor a provision denying that branch of the cross motion of those defendants; as so modified, the order is affirmed insofar as reviewed, and it is further,
Ordered that the appellants Gregory Judge and Ethel Knapp are awarded one bill of costs payable by the defendants-respondents.
The plaintiff was injured when he slipped on ice which allegedly formed as a result of a leak in a sewer line running from the homes of the appellants and another defendant. All of the defendants, including the Village of Mt. Kisco (hereinafter the village) and the Village Manager, John Pierpont, denied ownership or control of the allegedly defective sewer line.
The Supreme Court correctly denied the appellants' cross motions for summary judgment dismissing the complaint insofar as asserted against them (see, Herbert v. Rodriguez, 191 A.D.2d 887; Brady v. Maloney, 161 A.D.2d 879; Roark v. Hunting, 28 A.D.2d 1190). However, the court erred in dismissing the cross claims asserted by the appellants against the Village and John Pierpont inasmuch as there are questions of fact as to whether they owned or controlled the allegedly defective sewer line, or whether the Village should be estopped from denying such ownership or control (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 560; see generally, Stoddard v. Village of Saratoga Springs, 127 N.Y. 261).
To the extent that the parties' remaining contentions are properly before us, we find them to be without merit.
Bracken, J. P., Pizzuto, Altman and Luciano, JJ., concur.