| Laap v Francis |
| 2008 NY Slip Op 07217 [54 AD3d 1006] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Marylou Laap et al., Plaintiffs, v Yoon Ho Kim Francis etal., Respondents, and Welsbach Electric Corp., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andVictoria Scalzo of counsel), for respondent City of New York. Decolator, Cohen & DiPrisco, LLP, Garden City, N.Y. (John V. Decolator of counsel), forplaintiffs.
In an action to recover damages for personal injuries, etc., the defendant Welsbach ElectricCorp. appeals, as limited by its oral argument, from so much of an order of the Supreme Court,Queens County (Flug, J.), dated August 30, 2007, as denied that branch of its motion which wasfor summary judgment dismissing all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellant to the respondent City of New York.
On June 21, 2004, the vehicles operated by the plaintiff Marylou Laap and the defendantYoon Ho Kim Francis collided at the intersection of Utopia Parkway and 64th Avenue inQueens. It is undisputed that the red light of the traffic signal controlling northbound traffic hadmalfunctioned. The plaintiffs contended that the accident occurred as a result of the negligentrepair of the traffic signals at the subject intersection by the defendant Welsbach Electric Co.(hereinafter Welsbach), which had contracted with the City of New York to maintain all of thetraffic signals in the Borough of Queens. Welsbach moved, inter alia, for summary judgmentdismissing all cross [*2]claims insofar as asserted against it, onthe ground, among other things, that it properly performed its contractual duties with respect tothe subject intersection. The Supreme Court denied the motion.
Welsbach failed to establish its prima facie entitlement to judgment as matter of law on thecross claims asserted against it, as a Welsbach "Maintenance Report" was internally inconsistentconcerning whether Welsbach replaced a pole and traffic signal on the north center mall of thesubject intersection on April 26, 2004, approximately two months before the accident. Therefore,Welsbach failed to demonstrate, prima facie, that it was not negligent in the repair of the trafficsignals controlling traffic at the subject intersection, and thus did not establish that it exercisedreasonable care in the performance of the contractual duties it owed to the City. Rather,Welsbach's submissions revealed the existence of triable issues of fact as to whether it created anunreasonable risk of harm to others, or increased that risk, and launched a force or instrument ofharm (see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Espinal v MelvilleSnow Contrs., 98 NY2d 136, 139, 141-142 [2002]; Moch Co. v Rensselaer Water Co.,247 NY 160, 167 [1928]; Davilmarv City of New York, 7 AD3d 559, 560 [2004]). Accordingly, the Supreme Courtproperly denied that branch of Welsbach's motion which was for summary judgment dismissingall cross claims insofar as asserted against it (see Andre v Pomeroy, 35 NY2d 361, 364[1974]; Armijo v George A. MitchellCo., 53 AD3d 516 [2008]; Dykeman v Heht, 52 AD3d 767 [2008]). Fisher, J.P., Dillon,McCarthy and Belen, JJ., concur.