Cappella v. City of New York

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated March 28, 2003, as denied its cross motion for summary judgment dismissing the third-party complaint. 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 [568] AD3d 680 [2003]; Cupo v Karfunkel, 1 AD3d 48, 52 [2003]; Tulovic v Chase Manhattan Bank, 309 AD2d 923 [2003]). 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.