Opinion
Argued April 15, 1999
June 1, 1999
In an action to recover damages for personal injuries, etc., the defendant Village of Pleasantville appeals from so much of an order of the Supreme Court, Westchester County (Colabella, J.), dated June 8, 1998, as denied that branch of its motion which was for summary judgment dismissing so much of the complaint as alleged negligence by the Village with respect to its control of the subject utility pole struck by the injured plaintiff.
Ann K. Kandel, Hauppauge, N.Y. (Kathleen D. Foley of counsel), for appellant.
Robert A. Peirce Associates, White Plains, N.Y., for respondents.
CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the appellant's motion which was for summary judgment dismissing so much of the complaint as alleged negligence by the Village with respect to its control of the subject utility pole struck by the injured plaintiff is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.
The appellant established its entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to supply proof of an evidentiary nature which would serve to defeat the motion ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557). There are no issues of fact as to whether the appellant exercised control over the subject utility pole hit by the injured plaintiff. Although the pole was located in a right-of-way maintained by the appellant, the record reveals that the pole itself was owned, controlled, and maintained by the defendant Consolidated Edison.
In light of our determination, there is no need to address the remaining contentions raised on this appeal.