ZISA v. Roadway Contracting, Inc., Defendant-Appellant. (2007)

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered May 11, 2006, which, to the extent appealed from, denied the motion of defendant Roadway Contracting for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.

Roadway failed to establish prima face entitlement to summary dismissal.   Evidence that the metal plates were constantly being dislodged by construction vehicles in the area raised a triable issue of fact as to whether Roadway had inadequately placed the plates in such a manner as to allow their shifting or moving, thereby creating a dangerous condition that existed at the time of the accident (see Cuevas v. City of New York, 32 A.D.3d 372, 821 N.Y.S.2d 37 [2006] ).   The deposition testimony of Roadway's employee that these plates were being dislodged raised a further issue as to whether they had been properly secured in compliance with the New York City Highway Rules (34 RCNY) § 2-11(e)(10)(iii) (see Hoehn v. Consolidated Edison Co. of N.Y., 205 A.D.2d 734, 613 N.Y.S.2d 700 [1994] ).   Even assuming Roadway did not create the dangerous condition, its employee's testimony raised an issue of fact as to whether it had constructive notice of an ongoing and recurring dangerous condition that was routinely being left unaddressed (see Irizarry v. 15 Mosholu Four, LLC, 24 A.D.3d 373, 806 N.Y.S.2d 534 [2005] ).