Opinion
May 28, 1992
Appeal from the Supreme Court, New York County, Herman Cahn, J.
Plaintiff was injured when he fell in the vicinity of a manhole grating owned by defendant Consolidated Edison Company. In its charge to the jury regarding defendant's "special use" of the public roadway, the court properly instructed that section 3.1 of the Rules and Regulations Relating to Street Openings of the New York City Department of Transportation's Bureau of Highway Operations (11 RCNY 214) defined defendant's area of special use to include a 12-inch area surrounding the grating. The court also properly charged that defendant's failure to comply with appendix D, paragraph G.1, of the same rules, requiring that "all manhole covers and other street hardware shall be maintained flush with the most recent surrounding grade", could be considered as evidence of defendant's negligence. Finally, there is no merit to defendant's argument that plaintiffs failed to make out a prima facie case.
Concur — Sullivan, J.P., Milonas, Kupferman, Ross and Smith, JJ.