Johnston v. City of New York

In an action to recover damages for personal injuries, etc., the defendant Brooklyn Union Gas Company, doing business as Keyspan Energy Delivery of New York, appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated August 20, 2004, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed, with costs.

*713The appellant failed to tender sufficient evidence to eliminate all triable issues of fact as to whether it created the defect in the roadway, which was an alleged proximate cause of the subject accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In view of the foregoing, the appellant failed to make a prima facie showing of entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied the appellant’s motion for summary judgment. Ritter, J.P., Goldstein, Luciano and Lifson, JJ., concur.