Pantore v Patchas Realty, LLC

Pantore v Patchas Realty, LLC 2008 NY Slip Op 01006 [48 AD3d 222] February 5, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

Dennis Pantore et al., Respondents,
v
Patchas Realty, LLC, Appellant, and Health Care Waste Services Corp. et al., Respondents.

—[*1] Lester Schwab Katz & Dwyer, LLP, New York City (Paul M. Tarr of counsel), for appellant.

Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown (Judy L. Brown of counsel), for Health Care Waste Services Corp. and NYESC Acquisition Corp., respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 15, 2006, which, to the extent appealed from, denied the cross motion of defendant Patchas Realty, LLC for summary judgment dismissing the complaint and cross claims asserted against it, unanimously affirmed, with costs.

There is a triable issue of fact as to whether Patchas negligently maintained the perimeter wall that collapsed onto plaintiff. Although Patchas was on notice of prior instances of trucks striking the wall and had installed I-beams and barriers to strengthen certain areas of the wall and prevent trucks from striking it again, it installed no such devices in the area of the wall where plaintiff's accident occurred (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). Concur—Tom, J.P., Saxe, Gonzalez, Buckley and Catterson, JJ.