Phillips v. Seril

Nov 14, 1994
Versions:209 A.D.2d 496
619 N.Y.S.2d 291
1994 N.Y. App. Div. LEXIS 11255

—In a negligence action to recover damages for personal injuries, etc., the defendant York Scaffold Equipment Corp. appeals from an order of the Supreme Court, Kings County (Ramirez, J.), dated January 14, 1993, which denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it and any cross claims against it.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

We agree with the conclusion of the Supreme Court that issues of fact exist which preclude an award of summary judgment to the appellant. The plaintiff F. Peter Phillips slipped on a patch of ice on a sidewalk situated beneath a scaffold "shed” erected by the appellant. The ice allegedly formed as a result of water that had accumulated atop the corrugated metal shed roof, and which had dripped down to the sidewalk from a joint between overlapping pieces of the roof. There was also evidence that this alleged defective condition had existed for some time prior to the plaintiff’s fall, and that the roof of the shed was pitched to divert water runoff toward the adjacent street.

Contrary to the appellant’s contention, its liability may be predicated upon its erection of a defective or dangerous structure built upon real property owned by another (see, Micallef v Miehle Co., 39 NY2d 376; see also, Cubito v Kreisberg, 69 AD2d 738, affd 51 NY2d 900; Bonito v Peekskill Ford Motors, 64 AD2d 682; cf., Inman v Binghamton Hous. Auth., 3 NY2d 137, 143-147). A jury could reasonably infer that the appellant was negligent in its construction of the scaffold which allegedly permitted the water to drip and freeze upon the sidewalk (see, Dow v Interborough Rapid Tr. Co., 185 App Div 10). Therefore, summary judgment was properly denied (see, Gaither v Saga Corp., 203 AD2d 239; see also, Keyes v Jennings Co., 150 AD2d 758; Kneuer v American Hoist & Derrick Co., 126 AD2d 608, 609).

We have reviewed the appellant’s remaining contentions and find them to be without merit. Thompson, J. P., Rosenblatt, Miller, O’Brien and Ritter, JJ., concur.