In a decision dated November 1, 2011, the Appellate Division, First Department reversed the decision of the Supreme Court and granted summary judgment in favor of all City defendants leaving Consolidated Edison (“Con Edison”) the sole defendant. The plaintiff brought an action against Con Edison, the City of New York and other defendants for injuries allegedly sustained when he fell on a sidewalk on which a metal grate owned by Con Edison was situated. Although the grate was situated on a driveway abutting the City’s school, and Con Edison and the plaintiff argued that the City put it to special use, the First Department held that the City defendants were entitled to judgment as a matter of law because the evidence established that they did not have the ability to exercise control over the sidewalk defect allegedly involved. In reaching its decision, the Appellate Division relied on the facts that Con Edison owned the grate in question and, pursuant to 34 RCNY 2-07(b)(1), (2) it had an exclusive duty to maintain it, as well as the area extending 12 inches around it.
Lewis v. City of New York et al., 89 A.D.3d 410 (1st Dep’t 2011)