FIELD v. CITY OF NEW YORK

Plaintiff allegedly was injured when she stepped into a hole in the street and fell to the ground. The motion court erred in granting summary judgment to Empire because Empire did not conclusively establish that it did not create the hole which caused plaintiff's fall (see Migdol v. City of New York, 291 A.D.2d 201). Moreover, based on the testimony of the parties, the photographs of the subject hole which were identified by plaintiff at her deposition, Empire's work permit application and the affidavit from plaintiff's engineering expert, a question of fact exists as to whether Empire created the hole which caused plaintiff's fall.

Summary judgment was properly denied to defendant Impulse since it also failed to establish that it did not create the hole in question.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.