Opinion
June 30, 1975
In consolidated negligence actions to recover damages for personal injuries, etc., defendants the City of New York and A G (Hoe) Trenching Service, Inc. (Hoe) appeal, as limited by their briefs, from so much of a judgment of the Supreme Court, Queens County, entered July 9, 1973, upon a jury verdict, as is in favor of plaintiffs and against them. Judgment modified, on the law and the facts, by inserting a provision therein awarding defendant the City of New York recovery against Hoe in the total amount of the recoveries in favor of plaintiffs Meyer and Metallo. As so modified, judgment affirmed insofar as appealed from, with separate bills of costs to each plaintiff and to the City of New York against Hoe. The record indicates that two days before this accident the City of New York, through its Department of Highways, temporarily repaired certain potholes and/or depressions in the general area of the accident. Its foreman, William Quigley, denied without contradiction the presence of any condition such as the "cave in" which caused the property damage and personal injuries to plaintiffs. Although the record supports the jury's finding that the city had constructive notice of the collapsed roadway, there is a lack of evidence to charge it with actual notice of the condition which caused the accident. We find that the city's demand for relief was sufficiently pleaded by virtue of its reference to the Administrative Code of the City of New York (§ 692-7.0) as well as the broad demand for judgment based thereon (CPLR 3017; Sobel v City of New York, 9 N.Y.2d 187; Doyle v Union Ry. Co. of N.Y., 276 N.Y. 453; Johnsen v Gallagher, 28 A.D.2d 560). Martuscello, Acting P.J., Cohalan, Christ, Munder and Shapiro, JJ., concur.