Rena Field, Respondent-Appellant, v. City of New York et al., Defendants, Empire City Subway Co., Ltd., Respondent, and Impulse/F&V, Inc., Appellant

Rena Field, Respondent-Appellant, v City of New York et al., Defendants, Empire City Subway Co., Ltd., Respondent, and Impulse/F&V, Inc., Appellant. [753 NYS2d 719] [MAJORITY] Order, Supreme Court, New York County (Michael Stallman, J.), entered on or about February 26, 2002, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Empire City Subway Co. for summary judgment dismissing the complaint against it and denied the cross motion of defendant Impulse/F&V for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to deny the motion of Empire City Subway Co. and reinstate the complaint as against it, and otherwise affirmed, without costs. Plaintiff allegedly was injured when she stepped into a hole in the street and fell to the ground. The motion court erred in granting summary judgment to Empire because Empire did not conclusively establish that it did not create the hole which caused plaintiffs fall (see Migdol v City of New York, 291 AD2d 201). Moreover, based on the testimony of the parties, the photographs of the subject hole which were identified by plaintiff at her deposition, Empire’s work permit application and the affidavit from plaintiffs engineering expert, a question of fact exists as to whether Empire created the hole which caused plaintiffs fall. Summary judgment was properly denied to defendant Impulse since it also failed to establish that it did not create the hole in question. Concur — Tom, J.P., Saxe, Ellerin, Lerner and Marlow, JJ.