Inglesv.City of New York

Appellate Division of the Supreme Court of New York, Second DepartmentOct 20, 2003
309 A.D.2d 835 (N.Y. App. Div. 2003)
309 A.D.2d 835766 N.Y.S.2d 80

2002-07797

Argued September 23, 2003

October 20, 2003.

In an action to recover damages for personal injuries, etc., the defendants Copat Construction Corp., Trinity Communications Corp., and Copat Construction, d/b/a Trinity Communications Corp., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Patterson, J.), dated July 16, 2002, as denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against them.

Dubow Smith, Bronx, N.Y. (Israelson Gold [Jeffrey B. Gold] of counsel), for appellants.

Dansker Aspromonte Associates (Steve S. Efron, New York, N.Y. of counsel), for respondents.

SANDRA J. FEUERSTEIN, J.P. WILLIAM D. FRIEDMANN LEO F. McGINITY ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the cross motion of the defendants Copat Construction Corp., Trinity Communications Corp., and Copat Construction, d/b/a Trinity Communications Corp. (hereinafter the appellants) which was for summary judgment dismissing the complaint insofar as asserted against them. Contrary to the appellants' contention, the plaintiffs' action against them is not barred by the Rules of the City of New York ( see 34 RCNY § 2-11[e][16][ii]) (hereinafter the Rules). The Rules do not limit a contractor's common-law liability for affirmative acts of negligence which result in the creation of a dangerous condition upon a public street or sidewalk ( see Brown v. Welsbach Corp., 301 N.Y. 202; Levine v. Zarabi, 243 A.D.2d 448; Giordano v. Seeyle, Stevenson Knight, 216 A.D.2d 439; Gurriell v. Town of Huntington, 129 A.D.2d 768).

Furthermore, the appellants failed to make a prima facie showing that they were not negligent in performing road work at the accident site ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320), and the plaintiffs raised an issue of fact as to whether the accident was proximately caused by the work performed by the appellants rather than by the road work performed in the area by other entities ( see Zuckerman v. City of New York, 49 N.Y.2d 557).

The appellants' remaining contentions are without merit.

FEUERSTEIN, J.P., FRIEDMANN, McGINITY and SCHMIDT, JJ., concur.