SALISBURY v. CITY OF NEW YORK (1997)

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 injuries sustained when his foot went through a hole in an abutting sidewalk, denied the motion of third-party defendant, plaintiff's 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 plaintiff's injuries (see, Centeno v. City of New York, 204 A.D.2d 508, 614 N.Y.S.2d 205).   The issue is not, as third-party defendant would have it, whether it had control over plaintiff's 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.

MEMORANDUM DECISION.