| Cook v Consolidated Edison Co. of NY, Inc. |
| 2008 NY Slip Op 04200 [51 AD3d 447] |
| May 6, 2008 |
| Appellate Division, First Department |
| Mary E. Cook, Respondent, v Consolidated EdisonCompany of NY, Inc., Defendant, E Plus E LLC, Appellant, and Madison 55th Restaurant, Inc.,Individually and Doing Business as"Burger Heaven," et al.,Appellants-Respondents. |
—[*1] Billig Law, P.C., New York (Darin Billig of counsel), for appellants-respondents. Law Office of Kenneth A. Wilhelm, New York (Barry Liebman of counsel), forrespondent.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered October 10,2007, which, in an action for personal injuries sustained in a fall in front of premises leased bydefendant Burger Heaven (tenant) and owned by defendant E Plus (owner), denied tenant'smotion for summary judgment dismissing the complaint and all cross claims as against it, deniedowner's motion for summary judgment on its cross claim for contractual indemnification againsttenant, and denied owner's request in its reply papers for summary judgment dismissing thecomplaint as against it, unanimously affirmed, without costs.
Plaintiff alleges that she tripped in the gap between two shunt boards that had been placed bydefendant Con Edison on the sidewalk in front of tenant's restaurant to cover temporary wireslaid by Con Edison to restore electricity to the premises. With respect to both tenant and owner,issues of fact exist as to whether the placement of the shunt boards constituted a special use ofthe sidewalk such as to give rise to a duty to maintain this "provisional sidewalk structure"(Eliassian v Consolidated Edison Co. of N.Y., 300 AD2d 51 [2002]; cf. Nordquist vPiccadilly Hotel Co., 173 AD2d 412 [1991]), and whether they had constructive notice of arecurring dangerous condition that they routinely left unaddressed. In addition, owner was undera statutory nondelegable duty to maintain the sidewalk (Administrative Code of City of NY§ 7-210). Nor can it be concluded as a matter of law that the alleged gap between the shuntboards was so open and obvious as to relieve owner and tenant of any duty to warn of the hazard(see Westbrook v WRActivities-Cabrera Mkts., 5 AD3d 69, 71 [2004]). In the latter regard, plaintiff assertsthat her line of sight of the gap was obstructed by other pedestrians on the crowded [*2]sidewalk, who were wearing long coats and carrying shopping bags;in addition, the fact that a condition is visible does not necessarily mean it is open and obvious(see id. at 72). Since issues of fact exist concerning owner's and tenant's negligence, themotion court correctly denied, as premature, owner's motion for summary judgment on its crossclaim for contractual indemnification against tenant. We have considered appellants' remainingarguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Buckley and Acosta,JJ.