Opinion
9349 Index 305542/13
05-21-2019
Alfred MCDOWELL, Plaintiff, v. XAND HOLDINGS, LLC, Defendant–Respondent, JCI Construction Corporation, Defendant–Appellant, Costa Electrical Contractors, Corp., Defendant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Kathleen D. Foley of counsel), for appellant. Weiser & McCarthy, New York (David P. Weiser of counsel), for respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Kathleen D. Foley of counsel), for appellant.
Weiser & McCarthy, New York (David P. Weiser of counsel), for respondent.
Acosta, P.J., Richter, Manzanet–Daniels, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about October 30, 2018, which, to the extent appealed from as limited by the briefs, denied JCI Construction Corporation's (JCI) motion for summary judgment, unanimously affirmed, without costs.
The court properly found issues of fact as to whether JCI launched a force or instrument of harm while performing its contract at the construction site (see generally Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). The testimony of JCI's principal, viewed in the light most favorable to plaintiff, raised an issue of fact as to whether JCI met its alleged oral obligations to place caution tape around, or plywood over, the trench it contracted to excavate, into which plaintiff fell (see Farrugia v. 1440 Broadway Assoc. , 163 A.D.3d 452, 453, 82 N.Y.S.3d 1 [1st Dept. 2018] ; cf. Miller v. City , 100 A.D.3d 561, 954 N.Y.S.2d 100 [1st Dept. 2012] ).
Moreover, there are triable issues of fact as to whether plaintiff's conduct of walking to the edge of the trench, where he lost his footing and fell, was the sole proximate cause of his accident, as the record does not permit resolution as a matter of law of whether the hazard was open and obvious (see Farrugia, 163 A.D.3d 454, 455, 82 N.Y.S.3d 1 ).
We have considered JCI's remaining claims and find them unavailing.