Hanmer v. Bell Atlantic, Inc.

Appeal from an order of Supreme Court, Onondaga County (Garni, J.), entered April 1, 2002, which denied the motion of defendant Baldwinsville Enterprises for summary judgment dismissing the amended complaint and the cross claim against it. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: We affirm the order denying the motion of Baldwinsville Enterprises (defendant) for summary judgment dismissing the amended complaint and cross claim against it on the sole ground that plaintiffs have raised an issue of fact whether defendant has by oral contract entirely displaced the duty of defendant Bell Atlantic, Inc., formerly known as NYNEX Corporation, to bury the telephone wires that were left exposed on plaintiffs’ premises (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140; Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589). [997] All concur except Kehoe, J., who dissents in part and votes to modify in accordance with the following memorandum.