Rivera v. City of New York, 9305.

• Decision Date: 19 July 2007
• Docket Number: 9305.
• Citation: 840 N.Y.S.2d 321,2007 NY Slip Op 06165,42 A.D.3d 361
• Parties: RUBEN RIVERA et al., Respondents, v. CITY OF NEW YORK et al., Defendants, DIAMOND ASPHALT CORP. et al., Respondents, WELSBACH ELECTRICAL CORPORATION, Appellant-Respondent, and URBITRAN ASSOCIATES ENGINEERS, P.C., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 361

840 N.Y.S.2d 321

2007 NY Slip Op 06165

RUBEN RIVERA et al., Respondents, v. CITY OF NEW YORK et al., Defendants, DIAMOND ASPHALT CORP. et al., Respondents, WELSBACH ELECTRICAL CORPORATION, Appellant-Respondent, and URBITRAN ASSOCIATES ENGINEERS, P.C., Respondent-Appellant.

9305.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided July 19, 2007.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered July 5, 2005, which denied motions by defendants Urbitran Associates Engineers and Welsbach Electrical for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motions granted, dismissing all claims and cross claims against them. The Clerk is directed to enter judgment accordingly.

Urbitran's moving papers demonstrated a prima facie entitlement to judgment. The submissions in opposition did not sufficiently raise issues of fact as to whether Urbitran had failed to perceive an inadequately covered manhole, and whether that failure in turn contributed to a dangerous condition resulting in the accident. With respect to the allegation that defective lighting contributed to the injured plaintiff being struck by the car, the record establishes that Urbitran, hired by the City to provide resident engineer inspection services, fulfilled its contractual duties by reporting the condition to the City, Diamond Asphalt Corp., the general contractor, and Welsbach in its letters of September 27 and November 1, 1996.

The exposure of a protruding manhole cover on a street undergoing repaving allegedly caused defendant Walton's car to veer into the path of the pedestrian plaintiff. Submissions in opposition to summary judgment establish only that the manhole cover protruded three or four inches from the surface of the unpaved roadway. There was nothing to refute Urbitran's proof that asphalt collars had been installed around them. Nor did plaintiffs submit any expert evidence that the collars had been improperly constructed or installed (see 470 Owners Corp. v Richard L. Heimer, P.E., P.C., 258 AD2d 558 [1999]). Urbitran had no involvement in the design and specifications of the project. Thus, while plaintiffs' submissions may create an issue as to whether a raised manhole cover contributed to the accident, they do not show that Urbitran was responsible for the condition, or that the raised manhole covers created a nonconformity with the contract specifications...