LOSITO v. Cobar Construction Corp., appellant.

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

Barbara LOSITO, plaintiff-respondent, et al., plaintiff, v. CITY OF NEW YORK, defendant-respondent, Cobar Construction Corp., appellant.

Decided: March 27, 2007

HOWARD MILLER, J.P., ROBERT A. SPOLZINO, GLORIA GOLDSTEIN, and WILLIAM E. McCARTHY, JJ. John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for appellant. Block & O'Toole, New York, N.Y. (David L. Scher of counsel), for plaintiff-respondent and plaintiff Lillian Mandelbaum. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Susan Choi-Hausman of counsel;  Ira Stickler on the brief), for defendant-respondent.

In an action to recover damages for personal injuries, the defendant Cobar Construction Corp. appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated July 27, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Barbara Losito.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff Barbara Losito was injured when she tripped over a two-inch metal object protruding from the roadway on Queens Boulevard at the intersection of 63rd Drive.   Losito commenced this action against the City of New York and Cobar Construction Corp. (hereinafter Cobar) alleging that the latter caused or created the metal object to be imbedded in the roadway during construction work it undertook in the area.

 Losito's contention that Cobar failed to offer good cause for its untimely motion for summary judgment was not raised in opposition to the motion and, therefore, is not properly before this court (see Charles v. Jamaica Hosp., 30 A.D.3d 459, 816 N.Y.S.2d 375;  LaBella v. Allstate Ins. Co., 261 A.D.2d 367, 368, 689 N.Y.S.2d 197).

 A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk (see Brown v. Welsbach Corp., 301 N.Y. 202, 205, 93 N.E.2d 640;  Kleeberg v. City of New York, 305 A.D.2d 549, 550, 759 N.Y.S.2d 760).   Here, Cobar failed to satisfy its prima facie burden of demonstrating that it did not create or cause the allegedly dangerous condition over which Losito tripped and fell (see Cabrera v. City of New York, 21 A.D.3d 1047, 1048, 803 N.Y.S.2d 584;  Finegold v. Brooklyn Union Gas Co., 202 A.D.2d 469, 470, 610 N.Y.S.2d 796;  cf. Kruszka v. City of New York, 29 A.D.3d 742, 743-744, 816 N.Y.S.2d 510). The failure to make such a showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Accordingly, the Supreme Court properly denied Cobar's motion for summary judgment dismissing the complaint insofar as asserted against it by Losito.

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