Opinion
December 2, 1997
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
We agree with the IAS Court that the deposition testimony of the building's superintendent and a former maintenance person that third-party defendant's multi-ton garbage truck was routinely backed onto the sidewalk raises an issue of fact as to whether third-party defendant's negligence created the hole in the sidewalk that allegedly caused plaintiff's injuries ( see, Centeno v. City of New York, 204 A.D.2d 508). The issue is not, as third-party defendant would have it, whether it had control over plaintiff's work site, but whether its employees negligently created the hole by routinely driving onto the sidewalk to pick up the garbage, conduct that third-party defendant did have control over.
Concur — Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.