Opinion
February 19, 1962
In an action by a wife to recover damages for personal injuries sustained as the result of her fall upon a defective sidewalk, and by her husband to recover damages for loss of her services and for expenses incurred, defendants Samuel Gallucci Sons, Inc., and Tully Di Napoli, Inc. (hereafter respectively referred to as Gallucci and Tully) appeal, by permission of the Appellate Term of the Supreme Court, from its order of March 16, 1961, affirming a judgment of the City Court of the City of New York, County of Queens, entered June 5, 1958, after a jury trial. Gallucci appeals to the extent that the order affirms so much of the judgment as is in favor of plaintiffs against Consolidated Edison Co. of New York, Inc. (hereafter referred to as Con Ed) and as is in favor of defendant Con Ed on its cross complaint against Gallucci. Tully appeals from said order to the extent that it affirms so much of the judgment as is in favor of plaintiffs and against Tully and as is in favor of defendant Con Ed on its cross complaint against Tully. On Gallucci's appeal: order insofar as appealed from affirmed, with costs to Con Ed against Gallucci. On Tully's appeal: order insofar as appealed from reversed on the law, with costs to Tully against Con Ed, and complaint and cross complaint against Tully dismissed, with costs to Tully against Con Ed. The facts are affirmed. Pursuant to contract, Tully refilled an excavation across a sidewalk and repaved it with a temporary macadam surface. Tully completed its work on December 30, 1955, and Con Ed, which had caused the excavation to be made, accepted Tully's work. On January 6, 1956, pursuant to contract, Con Ed notified Gallucci to cover the area with a permanent sidewalk. Although under the contract Gallucci had agreed to assume all responsibility for maintenance at the expiration of 48 hours after receipt of notice from Con Ed, Gallucci failed to commence work until April 28, 1956, or two weeks after the happening of the accident. Liability may not be attributed to Tully even if it be assumed that upon the completion of the temporary macadam surface, such surface was slightly higher than the adjoining sidewalk ( Sobel v. City of New York, 9 N.Y.2d 187). In any event, there was no proof of such defective condition at completion by Tully and, under the circumstances, no inference of defective condition may reasonably be drawn. Con Ed had a nondelegable duty to maintain the sidewalk. In the light of its knowledge and its creation of the condition, proof of notice to it of the defect was not a prerequisite to a pedestrian's recovery against it. Failure of Gallucci to perform after notice and the contractual assumption of liability by Gallucci warranted judgment for Con Ed against it ( Sobel v. City of New York, supra). Beldock, P.J., Ughetta, Kleinfeld and Christ, JJ., concur; Brennan, J., concurs in result.