Opinion
March 13, 1973
Order, Supreme Court, New York County, entered November 9, 1972, unanimously reversed, on the law, and summary judgment denied, with $60 costs and disbursements to appellants to abide the event. In this action by a tenant of an abutting building against a general contractor and the foundation subcontractor, Special Term granted summary judgment. We find the record discloses several issues of fact as to whether there was negligence and whether that negligence caused the damage. The fact that a wall of the building partially occupied by plaintiff fell is not conclusive on these issues; and the building not being in defendants' control res ipsa does not apply. Hence there was no burden on defendants to explain the fall of the wall but only to present facts which raised an issue of their negligence. This they have done.
Concur — Nunez, J.P., Kupferman, Murphy, Steuer and Capozzoli, JJ.