Salisbury v. City of New York

Appellate Division of the Supreme Court of New York

Salisbury v. City of New York

245 A.D.2d 11, 665 N.Y.S.2d 410, 1997 N.Y. App. Div. LEXIS 11989

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 2, 1997

StatusPublished

This text of 245 A.D.2d 11 (Salisbury v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salisbury v. City of New York, 245 A.D.2d 11, 665 N.Y.S.2d 410, 1997 N.Y. App. Div. LEXIS 11989 (N.Y. Ct. App. 1997).

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Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered September 16, 1996, which, in an action by plaintiff, a garbage remover, against a building owner for [12]*12injuries sustained when his foot went through a hole in an abutting sidewalk, denied the motion of third-party defendant, plaintiffs employer, for summary judgment dismissing the building owner’s third-party complaint and all cross claims as against it, unanimously affirmed, without costs.

We agree with the IAS Court that the deposition testimony of the building’s superintendent and a former maintenance person that third-party defendant’s multi-ton garbage truck was routinely backed onto the sidewalk raises an issue of fact as to whether third-party defendant’s negligence created the hole in the sidewalk that allegedly caused plaintiffs injuries (see, Centeno v City of New York, 204 AD2d 508). The issue is not, as third-party defendant would have it, whether it had control over plaintiffs work site, but whether its employees negligently created the hole by routinely driving onto the sidewalk to pick up the garbage, conduct that third-party defendant did have control over. Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.

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—Order, Supreme Court, New York County (Jane Solomon, J.), entered September 16, 1996, which, in an action by plaintiff, a garbage remover, against a building owner for [12]*12injuries sustained when his foot went through a hole in an abutting sidewalk, denied the motion of third-party defendant, plaintiffs employer, for summary judgment dismissing the building owner’s third-party complaint and all cross claims as against it, unanimously affirmed, without costs.

We agree with the IAS Court that the deposition testimony of the building’s superintendent and a former maintenance person that third-party defendant’s multi-ton garbage truck was routinely backed onto the sidewalk raises an issue of fact as to whether third-party defendant’s negligence created the hole in the sidewalk that allegedly caused plaintiffs injuries (see, Centeno v City of New York, 204 AD2d 508). The issue is not, as third-party defendant would have it, whether it had control over plaintiffs work site, but whether its employees negligently created the hole by routinely driving onto the sidewalk to pick up the garbage, conduct that third-party defendant did have control over. Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.

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Bluebook (online)

245 A.D.2d 11, 665 N.Y.S.2d 410, 1997 N.Y. App. Div. LEXIS 11989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salisbury-v-city-of-new-york-nyappdiv-1997.

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