Anthony DelGuidice v City of New York

Anthony DelGuidice v City of New York 2013 NY Slip Op 00801 Decided on February 7, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Renwick, Clark, JJ.
9212 24071/06 83857/09

[*1]Anthony DelGuidice, Plaintiff-Respondent,

v

The City of New York, Defendant-Respondent-Appellant, Chevron U.S.A., Inc., et al., Defendants-Respondents. Aquila Realty Co., Inc., et al., Third-Party Plaintiffs-Respondents, Vales Construction Corp., Third-Party Defendant-Appellant-Respondent.




Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola
(Norman H. Dachs of counsel), for appellant-respondent.
Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for respondent-appellant.
Barasch McGarry Salzman & Penson, New York (Dominique
Penson of counsel), for Anthony DelGuidice, respondent.
Passarelli & Abiuso, Babylon (Patricia Howlett of counsel), for
Chevron U.S.A., Aquila Realty Co., Inc., Middletown Burgers
Corps. and Hutchinson Burgers Corp., respondents.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered January 20, 2012, which denied defendant City of New York's motion for summary judgment dismissing the complaint and all cross claims against it and third-party defendant Vales Construction Corp.'s cross motion for summary judgment dismissing the third-party complaint and all cross claims against it, unanimously modified, on the law, to granting the City's motion as to the common-law negligence claim, and otherwise affirmed, without costs.

As plaintiff concedes, the "firefighter's rule" bars his common-law negligence claim against the City of New York, his municipal employer (see General Obligations Law § 11-106; Williams v City of New York, 2 NY3d 352, 363 [2004]).

The City failed to establish prima facie that it did not create the alleged defective [*2]condition that gave rise to plaintiff's accident (see Oboler v City of New York, 8 NY3d 888 [2007]). Vales, the City's contractor, failed to establish that its work was limited to the installation of a pedestrian ramp and did not include the area of the sidewalk surrounding the hydrant, where plaintiff tripped and fell. In any event, the record presents a triable issue of fact whether Vales's work resulted in the immediate creation of the 2½-inch height differential in the sidewalk on which plaintiff tripped and fell.

We have considered appellants' remaining arguments for affirmative relief and find them unavailing.

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

ENTERED: FEBRUARY 7, 2013

CLERK