What did the court decide?

The appellate court affirmed the denial of summary judgment, meaning the case will proceed because factual disputes remain about who owned the dangerous wires and who had notice to fix them.

Who is affected by this decision?

The plaintiff and both utility defendants (Con Edison and Verizon) are affected because they remain parties in the lawsuit and factual issues will be resolved at trial or further proceedings.

Why weren't Con Ed and Verizon granted summary judgment?

Con Ed had a contractual duty to maintain the pole and had actual notice of the hazard but did not act before the accident; Verizon failed to conclusively show it did not own the wires or lacked notice, and some defenses were unpreserved or unsupported.

What happens next in the case?

Because summary judgment was denied, the case will proceed with discovery and potentially a trial to resolve factual disputes about ownership, notice, and fault.

Smith v. Consolidated Edison Co. of N.Y., Inc.

Docket Index No. 801687/22|Appeal No. 6421|Case No. 2025-02868|

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: Apr 21, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02381
Docket numbers: Index No801687/22Appeal No6421Case No2025-02868

Appeal from denial of defendants' summary judgment motions in a personal-injury action arising from low-hanging utility wires.

Summary

The Appellate Division, First Department affirmed the trial court's denial of summary judgment to Consolidated Edison and Verizon in a personal-injury suit after plaintiff's motorcycle encountered low-hanging wires. The court held that Con Ed could be liable because, under the Joint Use Agreement, it was responsible for maintaining the pole and had actual notice of the hazard from a morning complaint but did not inspect until hours after the crash. Verizon likewise failed to show it had no responsibility or lacked notice because ownership of the offending wires was disputed and its claimed defenses were unpreserved or unsupported.

Issues Decided

Whether Con Edison owed a duty to maintain the utility pole and could be liable for harm caused by wires attached to it under the Joint Use Agreement.
Whether Verizon owed a duty or had notice of the dangerous low-hanging wires attached to the pole.
Whether defendants established entitlement to summary judgment by showing they lacked ownership, notice, or responsibility for the wires.
Whether Verizon was entitled to dismissal of cross-claims for indemnification and contribution based on lack of ownership or notice.

Court's Reasoning

The court applied the Joint Use Agreement to assign maintenance responsibility for the pole to Con Ed, so ownership of the specific wires did not automatically absolve Con Ed of duty. Con Ed had actual notice from a morning customer complaint and offered no evidence of timely inspection or remedial action before the accident. Verizon's ownership denial was speculative and unpreserved or unsupported, and it failed to show its inspection and maintenance practices were reasonable, leaving factual disputes about ownership and notice that precluded summary judgment.

Authorities Cited

Balsam v Delma Eng'g Corp.139 AD2d 292 (1st Dept 1988), lv dismissed in part, denied in part 73 NY2d 783 (1988)
Del Marte v Leka Realty LLC156 AD3d 453 (1st Dept 2017)
White v MP 40 Realty Mgt. LLC187 AD3d 561 (1st Dept 2020)

Parties

Respondent: Kalomo J. Smith
Appellant-Respondent: Consolidated Edison Company of New York, Inc.
Defendant-Respondent-Appellant: Verizon New York, Inc.
Judge: Paul L. Alpert
Judge: Renwick, P.J.
Judge: Friedman
Judge: Pitt-Burke
Judge: Hagler

Key Dates

Decision date: 2026-04-21
Trial court order entered: 2025-03-04

What You Should Do Next

1
Prepare for trial or further fact discovery
Parties should gather and preserve evidence about ownership of the wires, inspection logs, complaint records, and repair responses to address questions of notice and maintenance.
2
Consider motions to narrow issues
Counsel may move to resolve specific evidentiary disputes or seek targeted rulings on admissibility to streamline trial issues.
3
Evaluate appeal or rehearing options
If a party believes there is a legal basis, they should consult counsel promptly about seeking reconsideration or leave to appeal to the Court of Appeals, noting appellate deadlines.

Frequently Asked Questions

What did the court decide?: The appellate court affirmed the denial of summary judgment, meaning the case will proceed because factual disputes remain about who owned the dangerous wires and who had notice to fix them.
Who is affected by this decision?: The plaintiff and both utility defendants (Con Edison and Verizon) are affected because they remain parties in the lawsuit and factual issues will be resolved at trial or further proceedings.
Why weren't Con Ed and Verizon granted summary judgment?: Con Ed had a contractual duty to maintain the pole and had actual notice of the hazard but did not act before the accident; Verizon failed to conclusively show it did not own the wires or lacked notice, and some defenses were unpreserved or unsupported.
What happens next in the case?: Because summary judgment was denied, the case will proceed with discovery and potentially a trial to resolve factual disputes about ownership, notice, and fault.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Smith v Consolidated Edison Co. of N.Y., Inc. - 2026 NY Slip Op 02381

Smith v Consolidated Edison Co. of N.Y., Inc.

2026 NY Slip Op 02381

April 21, 2026

Appellate Division, First Department

Kalomo J. Smith, Respondent,

Consolidated Edison Company of New York, Inc., Appellant-Respondent, Verizon New York, Inc., Defendant-Respondent-Appellant.

Decided and Entered: April 21, 2026

Index No. 801687/22|Appeal No. 6421|Case No. 2025-02868|

Before: Renwick, P.J., Friedman, Pitt-Burke, Hagler, JJ.

DSR Appeals, Montrose (Daniel S. Ratner of counsel), for appellant-respondent.

Lewis Brisbois Bisgaard & Smith LLP, New York (Oscar Deonarine of counsel), for respondent-appellant.

Harris Keenan & Goldfarb PLLC, New York (Jason Steinberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered on or about March 4, 2025, which denied the separate motions of defendants Consolidated Edison Company of New York, Inc. and Verizon New York, Inc. for summary judgment dismissing the complaint and Verizon's motion for summary judgment dismissing the cross-claims for indemnification and contribution as against it, unanimously affirmed, without costs.

Plaintiff was injured while driving his motorcycle when he encountered low-hanging wires from a utility pole, that then wrapped around his neck and dragged him until he collided with a parked car. Con Ed owns the joint use utility pole, as well as some of the wires attached to it, and Verizon also owns some of the wires attached to the utility pole. Both defendants moved for summary judgment dismissing the complaint, contending that they owed no duty to plaintiff because neither defendant owned the low-hanging wires that caused the accident. Supreme Court properly found otherwise.

As to Con Ed, it owns the joint utility pole and pursuant to the Joint Use Agreement, it is responsible for maintaining the pole in a safe condition (
see

Balsam v Delma Eng'g Corp.
, 139 AD2d 292, 296-297 [1st Dept 1988],
lv dismissed in part, denied in part
73 NY2d 783 [1988]). Although Con Ed's evidence suggests that the low-hanging wires were not a part of its electrical system, it was obligated under the Joint Use Agreement to maintain the pole to which the wires were attached.

Moreover, Con Ed had actual notice of the low-hanging wires from a customer complaint that was called in the morning of the accident (
see

Del Marte v Leka Realty LLC
, 156 AD3d 453, 453 [1st Dept 2017];
Atashi v Fred-Doug 117 LLC
, 87 AD3d 455, 456 [1st Dept 2011]). Con Ed submitted no evidence showing it lacked sufficient time to take corrective action, as it offered no evidence of any interim response, mitigation, or procedure followed after receipt of the complaint. Its own proof reflects that the site was not inspected until 5:55 p.m., at least six hours after the accident.

As to Verizon, under the Joint Use Agreement it was responsible for maintaining its attachments — or wires — to the utility pole. Verizon's argument that another cable company owned the low-hanging wires at issue was speculative and was thus insufficient to establish, as a matter of law, that Verizon owed no duty to plaintiff. Verizon's argument that it had transferred all its hardware off the utility pole prior to the accident is unpreserved, and, in any event, unsupported by the record
(see U.S. Bank N.A v DLJ Mtge. Capital, Inc.
, 146 AD3d 603, 603-604 [1st Dept 2017]). Nor was Verizon able to establish prima facie that it lacked constructive notice of the dangerous condition because it failed to show that its inspection and maintenance practices were reasonable or that such practices were even followed (
see White v MP 40 Realty Mgt. LLC
, 187 AD3d 561, 562 [1st Dept 2020]).

Lastly, the court properly denied Verizon's motion for summary judgment dismissing the cross-claims against it as there are issues of fact as to, inter alia, who owned the low-hanging wires.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 21, 2026