Underwood v. American Telephone and Telegraph Co.

—In a negligence action to recover damages for personal injuries, etc., the plaintiffs’ appeal from (1) an order of the Supreme Court, Nassau County (Becker, J.), dated June 27, 1994, which granted the motions of the defendants American Telephone and Telegraph Co., AT&T Information Systems, Inc., and Leon and Barbara Weinstein for summary judgment dismissing the complaint insofar as asserted against them, and (2) a judgment of the same court, entered August 11,1994, which dismissed the complaint insofar as asserted against the defendants American Telephone and Telegraph Co. and AT&T Information Systems, Inc. The plaintiffs’ notice of appeal from so much of the order dated June 27, 1994, as granted the motion of American Telephone and Telegraph Co. and AT&T Information Systems, Inc., is deemed a premature notice of appeal from the judgment. [624] Ordered that the judgment is reversed, on the law, without costs or disbursements, the provision of the order dated June 27, 1994, which granted the motion of American Telephone and Telegraph Co. and AT&T Information Systems, Inc., for summary judgment is vacated, and the motion of the defendants American Telephone and Telegraph Co. and AT&T Information Systems, Inc., is denied; and it is further, Ordered that the provision of the order dated June 27, 1994, which granted summary judgment to the defendants Leon Weinstein and Barbara Weinstein is affirmed, without costs or disbursements. The proof presented by the plaintiffs, and the defendants American Telephone and Telegraph Co. and AT&T Information System, Inc. (hereinafter collectively AT&T) as to the installation, ownership, and maintenance of certain telephone wires "create[s] questions of fact which cannot be resolved as a matter of law” (see, Freeman Lbr. Co. v Dutton Lbr. Corp., 220 AD2d 641). Therefore, summary judgment should not have been granted to AT&T. We have examined the plaintiffs contentions as to the defendants Leon and Barbara Weinstein and find them to be without merit. Bracken, J. P., Sullivan, Miller and Florio, JJ., concur.