PANTORE v. Health Care Waste Services Corp., et al., Defendants-Respondents. (2008)

Supreme Court, Appellate Division, First Department, New York.

Dennis PANTORE, et al., Plaintiffs-Respondents, v. PATCHAS REALTY, LLC, Defendant-Appellant, Health Care Waste Services Corp., et al., Defendants-Respondents.

Decided: February 05, 2008

TOM, J.P., SAXE, GONZALEZ, BUCKLEY, CATTERSON, JJ.

Lester Schwab Katz & Dwyer, LLP, New York (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 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ).

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