CAPPELLA v. CITY OF NEW YORK

Citation Codes

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Docket Number

2003-03625.

Attorney(S)

Cullen and Dykman Bleakley Platt, LLP, Brooklyn, N.Y. (Patrick Neglia of counsel), for third-party defendant-appellant. Abbott Bushlow Schechner, LLP, Ridgewood, N.Y. (Alan L. Bushlow of counsel), for plaintiff.

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FRANK CAPPELLA, plaintiff, v. CITY OF NEW YORK, defendant, 69 MIDDLE VILLAGE CORPORATION, S/H/A 69 MIDDLE VILLAGE CORP., defendant third-party plaintiff-respondent; BROOKLYN UNION GAS COMPANY, third-party defendant-appellant.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly sustained personal injuries when he tripped and fell over a gas pipe protruding from the sidewalk. The appellant, who installed the pipe, cross-moved for summary judgment dismissing the third-party complaint on the ground that the pipe was an open and obvious condition. The Supreme Court denied the cross motion. We affirm.

In support of its cross motion, the appellant failed to demonstrate, as a matter of law, that the pipe was open and obvious and not inherently dangerous ( see Grgich v. City of New York, 2 A.D.3d 680; Cupo v. Karfunkel, 1 A.D.3d 48, 52; Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923). Thus, the Supreme Court properly denied the cross motion for summary judgment dismissing the third-party complaint.

PRUDENTI, P.J., RITTER, LUCIANO and CRANE, JJ., concur.

FRANK CAPPELLA, plaintiff, v. CITY OF NEW YORK, defendant, 69 MIDDLE VILLAGE CORPORATION, S/H/A 69 MIDDLE VILLAGE CORP., defendant third-party plaintiff-respondent; BROOKLYN UNION GAS COMPANY, third-party defendant-appellant.

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