Opinion
December 31, 1997
Present — Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of defendant DiFiore Construction, Inc. (DiFiore), for summary judgment dismissing the complaint against it. DiFiore met its initial burden, establishing that the project was designed, controlled and supervised by the New York State Department of Transportation (DOT) ( see, Stevens v. Bast Hatfield, 226 A.D.2d 981, 981-982; Quinn v. Nigro Bros., 216 A.D.2d 281; Loconti v. Creede, 169 A.D.2d 900, 902). Plaintiffs, however, raised issues of fact whether DiFiore followed the specifications mandated by DOT and whether the specifications themselves provided sufficient safety devices for channeling traffic away from the drainage inlet holes. There is thus a further issue of fact whether the specifications were "`so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury'" ( Pioli v. Town of Kirkwood, 117 A.D.2d 954, 955, lv denied 68 N.Y.2d 601, quoting Ryan v. Feeney Sheehan Bldg. Co., 239 N.Y. 43, 46, rearg denied 239 N.Y. 604; see also, Loconti v. Creede, supra, at 903).
Finally, DiFiore failed to establish that plaintiffs' expert was unqualified or that his affidavit was without probative force ( see, Matter of Fasano v. State of New York, 113 A.D.2d 885, 889; Felt v. Olson, 74 A.D.2d 722, 722-723, affd 51 N.Y.2d 977; see also, Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533, n 2). (Appeal from Order of Supreme Court, Monroe County, Siracuse, J. — Summary Judgment.)