The opinion
Lide v Consolidated Edison Co. of N.Y., Inc.
2025 NY Slip Op 32503(U)
July 14, 2025
Supreme Court, Kings County
Docket Number: Index No. 517779/2016
Judge: Carolyn E. Wade
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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This opinion is uncorrected and not selected for official
publication.
[FILED: KINGS COUNTY CLERK 07/14/2025 03:09 P~ INDEX NO. 517779/2016
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/14/2025
At an I.A.S. Trial Term, Part 84 of the
Supreme Court of the State of New York, held in
and for the County of Kings, at the Courthouse,
located at 360 Adams Street, Borough of
Brooklyn, City and State of New York, on the
/Lj I-A day of fitly, 20_£;-
PRESENT: HON. CAROLYNE.WADE, J.S.C.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JEFFREY LIDE,
Index No.: 517779/2016
Plaintiff,
-against- DECISION AND ORDER
CONSOLIDATED EDISON COMPANY OF NEW Motion Seq. 007
YORK, INC. and MECC CONTRACTING, INC.
Defendants.
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CONSOLIDATED EDISON COMPANY OF NEW
YORK,
Third-Party Plaintiff,
-against-
MECC CONTRACTING, INC.
Third-Party Defendant.
-----------------x
Plaintiff JEFFREY LIDE's (hereinafter "Plaintiff') Motion (NYSCEF Doc. No. 137-147) seeks
an Order pursuant to CPLR § 3212 granting Summary Judgment on the issue of liability and CPLR §
3212(c) for an immediate trial for the purpose of assessing damages.
Defendant/Third-Party Plaintiff, CONSOLIDATED EDISON COMPANY OF NEW YORK
(hereinafter "Defendant") opposed the Motion (NYSCEF Doc. Nos. 148-149) respectfully requesting
that this Court deny Plaintiffs Motion in its entirety.
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NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/14/2025
STATEMENT OF FACTS
Plaintiff alleges that on September 30, 2015, while sitting in his vehicle, which was lawfully
stopped above a manhole at or near 744-746 Nostrand Avenue in Brooklyn, New York, the subject
manhole exploded underneath his vehicle, causing the vehicle to lift off of the ground, injuring
Plaintiff. See NYSCEF Doc. No. 1. Plaintiff further alleges that Defendant was the owner of the
manhole, including its structures and contents, which was part of the underground electric, gas and/or
steam distribution system that was being used in connection with Defendant's services. Id.
ANALYSIS
Upon a reading of the foregoing papers, and all other papers and proceedings in this action,
and after oral argument, Plaintiffs Motion (Seq. 007) is decided as follows:
Under well-established New York jurisprudence, "successive motions for summary judgment
should not be entertained absent a showing of newly discovered evidence or other sufficient cause."
Hillrich Holding Corp. v. BMSL Mgt., LLC, 175 A.D.3d 474, 103 N.Y.S.3d 846 (2d Dept. 2019); P.J.
37 Food Corp. v. George Doulaveris & Son, Inc., 189 A.D.3d 858, 859, 137 N.Y.S.3d 437 (2d Dept.
2020) (Court held that "successive motions for summary judgment should not be made based upon
facts or arguments which could have been submitted on the original motion for summary judgment"
and "successive motions for summary judgment should not be entertained in the absence of good cause,
such as a showing of newly discovered evidence"); Wells Fargo Bank, NA v. Carpenter, 189 A.D.3d
1124, 1126, 133 N.Y.S.3d 837 (2d Dept. 2020) (holding that the lower court should not have
entertained plaintiffs successive summary judgment motion because plaintiff "provided no newly
discovered evidence that could not have been submitted on its original motion and did not demonstrate
other sufficient cause why the second motion should be entertained.")
It is undisputed that, on June 12, 2018, Plaintiff previously moved for summary judgment on
identical grounds as the instant motion. See NYSCEF Doc. No. 59. Plaintiffs initial summary
judgment motion was denied on January 29, 2019, when this Honorable Court held that "in this instant
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case, given the limited record as no depositions have been conducted, this Court finds that Plaintiff has
not established his entitlement to summary judgment based on the doctrine of res ipsa loquitur. At this
juncture, there remain questions of facts to be determined by the trier of fact." See NYSCEF Doc. No.
80.
While depositions have been completed since Plaintiff initially moved for summary judgment,
Plaintiff does not rely on any deposition testimony in support of the instant motion, apart from his own,
which mirrors the statements made in his Affidavit in Support of his initial summary judgment motion.
See NYSCEF Doc. No. 60. Rather, Plaintiff readily admits that "each [CON ED] witness produced
knew strikingly little regarding the subject accident." See NYSCEF Doc. No. 138 ,r 18. Plaintiff also
admits that CON ED's "only other information provided in discovery was 3 'trouble tickets,' as
outlined in Third Party Defendant MECC Contracting, Inc. 's Motion for Summary Judgment," which
was filed on January 8, 2018, approximately five (5) months prior to Plaintiff's initial motion for
summary judgment. As such, Plaintiff has not relied on any new evidence in support of his successive
summary judgment motion.
Summary judgment is inappropriate when there are issues of fact with respect to the exclusivity
of control over the instrumentality that allegedly caused the injury. Jainsinghani v. One Vanderbilt
Owner, LLC, 162 A.D.3d 603, 80 N.Y.S.3d 36 (1st Dept. 2018); Consol. Ed. Co. of N.Y., Inc., 2012
Misc. LEXIS 6618 (N.Y. Sup. Court, N.Y. County 2012) (Court held that "Although the City controls
the sewer system, and is obligated to repair defects in that system, that does not automatically make it
liable for all sewage leaks. Plaintiff has failed to demonstrate that the defendants had exclusive control
over the instrumentality that caused the sewage leak).
CON ED's representative, Joseph Breakenridge, testified that CON ED did not have exclusive
control over the manhole or manhole cover in question, explaining that anyone with wire and hooks
can open it. See NYSCEF Doc. No. 145 at pp. 108: 4-25; 109: 2-21; 111: 5-10.
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CON ED's Engineering Supervisor, Andrii Kozak, corroborated Mr. Breakenridge's testimony
attesting that the manhole covered depicted in the photographs is not locked and may have been
accessed by anyone with metal and hooks, including the City of New York, National Grid, and any
cable or utility company who wishes to access it. See NYSCEF Doc. No. 149 at 15. Mr. Kozi:;tk further
attested that the manhole cover itself is routinely ridden over, plowed over, and otherwise manipulated
by traffic, including Plaintiffs vehicle on the day of the incident, and the manhole is part of a complex
interconnected underground system in New York City, which houses sewer systems, cable wires and
other utilities. See NYSCEF Doc. No. 149 at 16. As such, there are issues of material fact with respect
to the exclusivity of CON ED's control over the manhole or manhole cover.
Accordingly, it is hereby ORDERED that Plaintiffs Motion for Summary Judgment is
DENIED.
This constitutes the Decision and Order of the Court.
ENTER:
Honorable Carolyn E. Wade, J.S.C.
Hon. caroryn E. Wad@
Supreme Court Justice
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