Zisa v City of New York

Zisa v City of New York 2007 NY Slip Op 03074 [39 AD3d 313] April 12, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Natalia Zisa et al., Respondents,
v
City of New York, Respondent, and Roadway Contracting, Inc., Appellant, et al., Defendant.

—[*1] Jeffrey Samel & Partners, New York (David Samel of counsel), for appellant.

Joelson & Rochkind, New York (Kenneth Joelson of counsel), for Natalia Zisa, respondent.

Irwin, Lewin, Cohn & Lewin, P.C., New York (Edward Cohn of counsel), for Samuel Thiam, respondent.

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for the City of New York, respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered May 11, 2006, which, to the extent appealed from, denied the motion of defendant Roadway Contracting for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.

Roadway failed to establish prima face entitlement to summary dismissal. Evidence that the metal plates were constantly being dislodged by construction vehicles in the area raised a triable issue of fact as to whether Roadway had inadequately placed the plates in such a manner as to allow their shifting or moving, thereby creating a dangerous condition that existed at the time of the accident (see Cuevas v City of New York, 32 AD3d 372 [2006]). The deposition testimony of Roadway's employee that these plates were being dislodged raised a further issue as to whether they had been properly secured in compliance with New York City Highway Rules (34 RCNY) § 2-11 (e) (10) (iii) (see Hoehn v Consolidated Edison Co. of N.Y., 205 AD2d 734 [1994]). Even assuming Roadway did not create the dangerous condition, its employee's testimony raised an issue of fact as to whether it had constructive notice of an ongoing and [*2]recurring dangerous condition that was routinely being left unaddressed (see Irizarry v 15 Mosholu Four, LLC, 24 AD3d 373 [2005]). Concur—Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.