JONES v. Tri–Messine Construction Company, Inc., Defendant–Appellant. (2019)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about September 21, 2017, which to the extent appealed from as limited by the briefs, granted defendant Step Mar Contracting Corp.'s motion for summary judgment dismissing all cross claims against it, unanimously reversed, on the law, without costs, the motion denied, and the cross claims reinstated.

Defendant Tri–Messine Construction Company, Inc., a contractor hired by defendant Con Edison to lay pavement over portions of the roadbed that had been excavated and backfilled by a subcontractor hired by defendant contractor Step Mar Contracting Corp., contends that the defects in the roadbed on which plaintiff tripped were a result of Step Mar's subcontractor's work.  As a defendant with a right to seek contribution from a codefendant, Tri–Messine has standing to bring this appeal (Stone v. Williams, 64 N.Y.2d 639, 641, 485 N.Y.S.2d 42, 474 N.E.2d 250 [1984] ).  Moreover, Tri–Messine is aggrieved by the dismissal of its cross claims against Step Mar (see Cruz v. Kamlis Dresses & Sportswear Co., 238 A.D.2d 103, 654 N.Y.S.2d 778 [1st Dept. 1997] ).

Step Mar established prima facie that the hazardous condition on which plaintiff tripped was not caused by any negligence on its part by submitting evidence that Con Edison had formally approved its work as satisfactorily completed, testimony indicating that the photographic exhibits demonstrated no deficiencies in its subcontractor's performance of the excavation and backfilling work, and plaintiff's expert's opinion that the photographic evidence of the alleged hazardous roadbed condition suggested no negligence on Step Mar's contractor's part but negligence only on the parts of Tri–Messine, the finishing paver, and Con Edison, the party that inspected and approved the paving work.  However, upon drawing all reasonable inferences from this evidence and other testimony, we find that issues of fact, including credibility, exist as to the causes that gave rise to the hazardous condition (see generally Rodriguez v. Parkchester S. Condominium, 178 A.D.2d 231, 577 N.Y.S.2d 52 [1st Dept. 1991] ).