Opinion
2063
November 18, 2003.
Order, Supreme Court, Bronx County (Howard Silver, J.), entered March 25, 2003, which denied defendants' respective motion and cross motion for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.
Maurice J. Recchia, for plaintiff-respondent.
Marianne T. Byrne Nathalie L. Pierre, for defendants-appellants.
Before: Andrias, J.P., Saxe, Williams, Marlow, Gonzalez, JJ.
Plaintiff, an instructor at defendant Manhattan College, alleges that while crossing the campus she slipped and fell, sustaining injury, when a metal plate covering a trench excavated by defendant T. Moriarity Sons, Inc. shifted underneath her foot. Factual questions preclude summary judgment in favor of defendant contractor; specifically, whether it created "a dangerous or defective condition" so as to impose liability (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977) and whether the resulting condition was open and obvious so as to obviate any duty to warn of the potential danger (see Thornhill v. Toys "R" Us NYTEX, 183 A.D.2d 1071, 1072). Although defendant college is not generally liable for the negligence of an independent contractor, its duty to keep its premises reasonably safe is nondelegable (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273-274; Rosenberg v. Equitable Life Assur. Socy., 79 N.Y.2d 663, 668; see also Backiel v. Citibank, N.A., 299 A.D.2d 504). Thus, a question of fact remains whether the condition complained of existed for a sufficient period of time to permit the college to discover it and take remedial measures (see Garcia v. New York City Hous. Auth., 183 A.D.2d 619, 620, citing Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.