Mitchell v. Consolidated Edison

431 In an action to recover damages for personal injuries, the defendant Consolidated Edison appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered October 28, 2004, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly denied the appellant’s motion for summary judgment. The appellant was required to make a prima facie showing of entitlement to summary judgment by establishing that it neither created nor had actual or constructive notice of the condition that caused the plaintiffs accident (see Curzio v Tancredi, 8 AD3d 608 [2004]). However, the appellant failed to establish that it did not create the condition. Issues of fact exist as to whether and when the appellant performed repairs on the portion of the sidewalk where the plaintiff fell. Schmidt, J.P., Santucci, Mastro and Lifson, JJ., concur.