Upon the foregoing papers, the cross motion by defendants Consolidated Edison Company of New York, Inc. (hereinafter "Con Ed") and Utility Pole Technologies, Inc, (hereinafter "UPT") is denied; plaintiff's cross motion is granted to the extent indicated.

In this personal injury action, plaintiff claims that she was injured on May 12, 2010, when she tripped and fell due to a "hole [or] a crack" in the sidewalk across the street from her home on Staten Island which caused her to trip and fall against a utility pole (see Transcript of Plaintiff's [*2]General Municipal Law §50-h Hearing dated May 12, 2010, p16, 31). At a later deposition, plaintiff explained that after crossing in front of her parked car in order to open the front passenger door (see July 21, 2011 EBT of Plaintiff, p 23, 25, 28), she was "jumping over" the curb to avoid an accumulation of dirt (id. at 28), and as her right foot made contact with the sidewalk, she "leaned onto [a utility] pole,... hurt[ing her] finger" (id. at 29, 33). According to plaintiff, she had to grab onto the pole in order to stabilize herself, but as she did so, her foot went into a hole approximately 3 inches deep (id. at 33, 41). The accident is alleged to have taken place on Jefferson Street, between Strobe and Seaver Avenues and across the street from 281 Jefferson Street, where she lived (see July 21, 2011 EBT of Plaintiff, p 5-6).

At a second deposition held on March 15, 2013, plaintiff testified with greater specificity that she had taken one step with her left foot after landing, and then her "right foot got stuck in the hole ...twisted... and [she] tripped" (see March 15, 2013 EBT of Plaintiff, p 14). At this point, she started to fall forward and used her right arm to break her fall. As she did so, her fingers came into contact with the "metal part" of the utility pole, causing her fingers to "split" (id. at 16-18). Immediately after the fall, plaintiff saw a crack in the sidewalk (id. at 21). Prior to the accident, she denied noticing any cracks or holes in the sidewalk (id. at 14).

As a result of the foregoing, plaintiff commenced the instant action alleging that defendants were negligent in allowing the sidewalk to remain in a dangerous and defective condition, and in failing to repair the cracked and broken portion of the sidewalk (see Verified Bill of Particulars, para 19). It is further alleged that defendants were negligent in permitting the pole, which was bent, to remain "in a bent position for a considerable period of time" (id.).

In support of their motion for summary judgment, defendants submit the deposition testimony of Greg Batchlor, former vice president of operations for UPT. According to this witness, UPT and Con Ed were parties to an existing "purchase order agreement" governing "inspection, treatment work and pole reenforcement work" for the subject utility pole at the time in question (see EBT of Greg Batchlor dated April 3, 2013, p13-16, 22; see also Defendant Con Ed/UPT's Exhibit "N")^[FN1]. He further testified that UPT last inspected the pole on May 28, 2009, and the ensuing field report described it as a "reject pole" that had "shell rot around [its] base... that reduced [its circumference by] five inches" (id. at 30-33; see also Defendant Con Ed/UPT's Exhibit "O"). Nevertheless, the pole was deemed a "candidate for re-enforcement [rather than] replacement" due to the remaining circumference of the outer shell (id. at 35). As a result, UPT's reinforcing crew installed three metal bands on the top and three metal bands at the bottom of the subject pole to secure a "reenforcing truss" in order to increase the pole's strength (id. at 50-52). Mr. Batchlor denied that the work caused any damage to the concrete sidewalk (id. at 55), and maintained that UPT was not responsible for the concrete surrounding the pole. He also denied that UPT performed any work that involved the concrete (id. at 43-45, 55). According to Batchlor, even if it was found during an inspection that the concrete around the utility pole was cracked or broken, UPT would do "nothing" about it (id. at 43-45, 50, 55).

In addition to copies of the field report and the purchase order agreement, defendants submit a copy of Con Ed's manual on the "Inspection and Groundline Treatment of Standing Wood Poles" which bears an effective date of July 21, 2009 (see Defendant Con Ed/UPT's Exhibit "P"). Also before the Court are copies of photographs which plaintiff identified at her deposition as accurately depicting the accident location (see July 21, 2011 EBT of Plaintiff, pp 39-40; see Plaintiff's Exhibit [*3]"T").

Generally, liability for injuries sustained as a result of negligence in the maintenance of a public sidewalk, or a dangerous or defective condition thereon, is placed on the municipality (see Elkman v. Consolidated Edison of New York, 71 AD3d 817, 818 [2nd Dept 2010]). However, an exception exists where a third-party has created the defect (id.). For example, a contractor may be held liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk (see Walton v. City of New York, 105 AD3d 732 [2nd Dept 2013]). Here, the moving defendants established their entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate, prima facie, that they did not perform any concrete work where the accident occurred and therefore, did not create the alleged hazardous condition cited by plaintiff (id.). More specifically, the testimony of UPT's former vice president of operations demonstrated that the work performed by it on behalf of Con Ed did not involve the concrete or the sidewalk surrounding the subject utility pole (see Ottenstein v. City of New York, 83 AD3d 1024 [2nd Dept 2011] Case v. City of New York, 82 AD3d 822 [2nd Dept 2011] Loughlin v. City of New York, 74 AD3d 757, 758 [2nd Dept 2010]).

In her combined cross motion and opposition to defendants' motion, plaintiff seeks leave to have the annexed affidavit and report of her expert engineer deemed to satisfy the requirement for the timely exchange of such information pursuant to CPLR 3101(d)(1)(i), and for consideration of his affidavit and report in opposition to defendants' motion. The cross motion is granted.

The fact that plaintiff's expert was not disclosed until six months after the filing of the note of issue, and that his affidavit was submitted only in response to the summary judgment motion, does not, in and of itself, render the disclosure untimely (see Castillo v. Wil-Cor Realty Co., Inc., 109 AD3d 863, 864 [2nd Dept 2013]). Moreover, a party's failure to disclose its expert pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that expert in the context, as here, of a timely motion for summary judgment (see Salcedo v. Weng Qu Ju, 106 AD3d 977,978 [2nd Dept 2013]). In the exercise of its discretion, the Court finds that defendants will not be prejudiced by the granting of plaintiff's cross motion, and that the interests of justice will best be served by considering the opinion of plaintiff's expert in opposition to their summary judgment motion.

In the Affidavit and report of plaintiff's expert, Robert T. Hintersteiner, a professional engineer, he opines on the basis of his review of, inter alia, the photographs of the alleged defective condition and his inspection of the accident site on November 22, 2010, that, within a "reasonable degree of engineering certainty... the cracks and the missing concrete in the sidewalk was caused by the bending of the utility pole, which placed extreme stresses on the base of the pole resulting in the breaking up of the concrete [,i.e.,] that the bending stress on the top of the utility pole caused the buried base of the pole to be pushed in the opposite direction creating a pivot point at the concrete sidewalk which force[d] the sidewalk to break up and fail" (see Affidavit of Robert T. Hintersteiner dated August 3, 2012, p 2). In addition, Mr. Hintersteiner opines with the same degree of engineering certainty "that the guy wires [introduced to stabilize the pole] were not properly attached to reduce the stresses and that proper application of the guy wire would have prevented the broken sidewalk condition" (id. at p 3).

Based on the foregoing evidence, it is the opinion of this Court that defendants' have sustained their burden of demonstrating prima facie their right to judgment as a matter of law, but that plaintiff's evidence, including with particularity the affidavit of her engineering expert, is sufficient to raise a triable issue of fact as to whether defendants created the alleged sidewalk defect (see Salcedo v. Weng Qu Ju, 106 AD3d at 978).

Accordingly, it is

ORDERED that the motion for summary judgment by defendants Consolidated Edison Company of New York, Inc. and Utility Pole Technologies, Inc is denied; and it is further

ORDERED that plaintiff's cross motion is granted to the extent that the Court shall consider the affidavit of her expert engineer to be timely for purposes of CPLR 3101(d)(1)(i), as well as on the merits of defendants' motion; and it is further

ORDERED that the balance of plaintiff's cross motion is denied.

ENTER,

__/s/______________________

Hon. Thomas P. Aliotta

J.S.C.

DATED: January 2, 2014