Although there is evidence that they had no access to the grates and the vault, the evidence is not conclusive. Moreover, there is evidence that the transformers in the vaults provided electrical service solely to their property (see generallyKarr v. City of New York, 161 A.D.2d 449, 555 N.Y.S.2d 734 [1st Dept. 1990] ; Sheehy v. City of New York, 43 A.D.3d 336, 840 N.Y.S.2d 790 [1st Dept. 2007] ).

He was not employed by Negev at the time of construction, did not visit construction sites generally, and had no familiarity with the construction permits that might have been issued for this job. Thus, Negev failed to meet its burden of proof that it did not make special use of the sidewalk ( see Cook v Consolidated Edison Co. of NY, Inc., 51 AD3d 447; McKenzie v Columbus Ctr., LLC, 40 AD3d 312; Sheehy v City of New York, 43 AD3d 336) and the motion correctly was denied. Furthermore, although Negev's answer is contained in the record, it is verified only by counsel.

However, the image submitted by Audubon in support of its motion indicates that an opening was present on the sidewalk (Doc No. 22 at 1). Thus, it is unclear whether the opening was created by defective restoration on the part of Con Edison, or by someone else (see Maldonado v 527 Lincoln Place, LLC, 173 A.D.3d 730, 731 [2d Dept 2019], Iv denied 35 N.Y.3d 914 [2020]; Sheehy v City of New York, 43 A.D.3d 336, 336-337 [1st Dept 2007]). Similarly, assuming no defective restoration on the part of Con Edison, it is unclear when the defect was created and how long it was in existence prior to the date of plaintiffs incident, which implicates whether the defect was present long enough for Audubon to obtain constructive notice of it (see Samuelsen v Wollman Rink Operations LLC, 201 A.D.3d 490, 491 [1st Dept 2022]; George, 306 A.D.2d at 161). Therefore, viewing the evidence in the light most favorable to plaintiff, the non-moving party (see e.g. Stonehill Capital Mgt. LLCv Bank of the W., 28 N.Y.3d 439, 448 [2016]), Audubon is not entitled to judgment as a matter of law (see Samuelsen, 201 A.D.3dat 491).

Whether or not Angelo Socci was correct that, as between the Soccis and Citigroup, only Citigroup was responsible for maintenance and repair of the sidewalk, his testimony was definitive that he and his wife made no repairs. Although there is no evidence as to whether the sidewalk was repaired by the City of New York, or under permit from the City ( see Sheehy v. City of New York, 43 AD3d 336 [1st Dept 2007] ), no inference adverse to Plaintiff can be taken, since any such evidence would have been as available to Citigroup as to Plaintiff. And the nature of the repairs to the sidewalk and the materials used, as described by Mr. Marletta, are consistent with Mr. Klusek's testimony as to the repairs he, and presumably others, would have made to the sidewalk.

The distinction between the results in Lewis and Cook is that in Lewis the facility was part of the utility's distribution network under its control and maintenance even though it serviced the owner's premises while inCook the temporary wires and shunt covering were not part of the utility's network but were a temporary hookup that only benefitted the adjoining property owner and were placed into service for reasons having to do with the conditions on the adjoining property. This principle is further illustrated in Sheehy v City of New York ( 43 AD3d 336, 337 [1st Dept 2007] [emphasis added]) where the Court held that an issue of fact exists as to whether defendant-appellant [owner] made a special use of the sidewalk.

owner and were placed into service for reasons having to do with the conditions on the adjoining property. This principle is further illustrated in Sheehy v City of New York (43 AD3d 336, 337 [1st Dept 2007] [emphasis added]) where the Court held that an issue of fact exists as to whether defendant-appellant [owner] made a special use of the sidewalk.

Eliassian v. Consolidated Edison Co. of New York, 300 A.D.2d 51 (1st Dep't 2002). See also, Sheehy v. The City of New York, 43 A.D.3d 336 (1st Dep't 2007). Plaintiff further argues that there is an issue of fact based on Mr. Varis' admission that the boards had separated on approximately five prior occasions, as to whether or not Burger