Benitez v. City of New York

2018 NY Slip Op 2407

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2018
• Docket: 6190 151661/15
• Status: Published

Opinion

Benitez v City of New York (2018 NY Slip Op 02407)

Benitez v City of New York

2018 NY Slip Op 02407

Decided on April 5, 2018

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 April 5, 2018
Richter, J.P., Manzanet-Daniels, Andrias, Kapnick, Webber, JJ.

6190 151661/15

[*1]Sigfrido Benitez, Plaintiff-Respondent,

v

The City of New York, et al., Defendants, Rockledge Scaffolding, et al., Defendants-Appellants.

Gallo Vitucci Klar LLP, New York (Kimberly A. Ricciardi of counsel), for appellants.

Gentile & Associates, New York (Laura Gentile of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered July 5, 2017, which, inter alia, denied the motion of defendants Rockledge Scaffolding and Rockledge Scaffolding Corp. (collectively Rockledge) for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

Regardless of whether Rockledge established its entitlement to summary judgment, plaintiff's expert affidavit raised a triable issue of fact as to whether, inter alia, it launched an instrument of harm by negligently placing a sidewalk shed's steel vertical support beams, which were allegedly too close to where bus passengers would be disembarking, without mediating the danger by providing warning or wrapping the beams with padding (see Espinal v Melville Snow Contrs ., 98 NY2d 136, 141-142 [2002]; Schnur v City of New York , 298 AD2d 332 [1st Dept 2002]; Dickert v City of New York , 268 AD2d 343 [1st Dept 2000]).

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2018

CLERK