Supreme Court, Appellate Division, Second Department, New York.
Charles HADEN, plaintiff-respondent,v.FENLEY & NICOL ENVIRONMENTAL, INC., et al., appellants.Lockwood Kessler & Bartlett, Inc., defendant-respondent (and a third-partyaction).
June 12, 2000.
Forklift operator who was injured when forklift tipped into hole in pavement at waste disposal plant sued engineering firm and contractor that had worked on tank replacement project. The Supreme Court, Nassau County, Lockman, J., denied defendants' motion for summary judgment. Defendants appealed. The Supreme Court, Appellate Division, held that issues of fact as to who created hole, and engineering firm's degree of control over project, precluded summary judgment.
Judgment 181(33)228k181(33) Most Cited Cases
Issues of fact existed, in forklift operator's personal injury action against engineering firm and contractor that had worked on tank replacement project at waste disposal plant, as to who created hole in pavement that caused forklift to tip and throw operator and as to firm's degree of supervision or control over project, precluding summary judgment for firm or contractor. McKinney's CPLR 3212(b). **582 Fiedelman & McGaw, Jericho, N.Y. (Carol A. Moore and Susan Lysaght of counsel), for appellant Fenley & Nicol Environmental, Inc.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Annalee Cataldo-Barile of counsel), for appellant Cashin Associates, P.C.
Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Stuart R. Goldstein of counsel), for plaintiff-respondent.
CORNELIUS J. O'BRIEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ.
MEMORANDUM BY THE COURT.
*273 In an action to recover damages for personal injuries, the defendant Fenley & Nicol Environmental, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated February 16, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendant Cashin Associates, P.C., appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff-respondent.
On April 28, 1994, the plaintiff Charles Haden, a forklift operator for the Town of Oyster Bay (hereinafter the Town), was injured when he was thrown from the forklift he was operating as it tipped into a hole in the pavement at the Town's Waste Disposal Plant. Approximately two years before the incident, the Town had employed the defendant Cashin Associates, P.C. (hereinafter Cashin), to provide engineering consultant services with respect to a tank replacement project at the plant and had retained the defendant Fenley & **583 Nicol Environmental, Inc. (hereinafter Fenley), as the contractor on the project.
The Supreme Court properly denied the separate motions of Cashin and Fenley for summary judgment dismissing the complaint *274 and all cross claims insofar as asserted against them, as issues of fact exist, inter alia, as to who created the hole, and the degree of Cashin's supervision or control over the project (see, CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718; see also, D'Andria v. County of Suffolk, 112 A.D.2d 397, 492 N.Y.S.2d 621).
The parties' remaining contentions are without merit.
709 N.Y.S.2d 582, 273 A.D.2d 273, 2000 N.Y. Slip Op. 05719
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