| Henriquez v Parsippany Constr. Co., Inc. |
| 2009 NY Slip Op 03865 [62 AD3d 749] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Ana Henriquez et al., Respondents, v ParsippanyConstruction Company, Inc., Defendant and Third-Party Plaintiff-Appellant, et al., Defendant.Safety Marking, Inc., Third-Party Defendant-Appellant. |
—[*1] Lori D. Fishman, Tarrytown, N.Y. (Louis Liotti and Michael J. Latini of counsel; Julia Crimion the brief), for third-party defendant-appellant. Steven J. Mandel, New York, N.Y. (Donald T. Ridley of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant and third-partyplaintiff appeals and the third-party defendant separately appeals from an order of the SupremeCourt, Rockland County (Nelson, J.), dated March 13, 2008, which denied the defendantthird-party plaintiff's motion for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is affirmed, with one bill of costs.
At approximately 5:30 p.m. on December 12, 2000, the injured plaintiff was operating avehicle eastbound on Route 202, a two-lane highway, when it crossed over the double-yellowcenter line into the opposing lane of traffic and struck a westbound vehicle head-on. At the timeof the accident, a two-mile stretch of Route 202 was undergoing road widening and resurfacing.The injured plaintiff and her husband, derivatively, commenced this action against, amongothers, the defendant and third-party-plaintiff, Parsippany Construction Company, Inc.(hereinafter Parsippany), the general contractor performing the construction work on Route 202pursuant to a contract with the New York State Department of Transportation (hereinafter theDOT), alleging that Parsippany [*2]negligently failed to provideadequate road markings. The plaintiffs' theory of liability, as articulated in their bill ofparticulars, is that the road markings did not provide the injured plaintiff with sufficient guidanceto determine her lane of travel and caused her to move into the opposing lane. Parsippanyimpleaded the third-party defendant Safety Marking, Inc. (hereinafter Safety Marking), withwhom it had subcontracted to place temporary and permanent road markings. The SupremeCourt denied Parsippany's motion for summary judgment dismissing the complaint insofar asasserted against it. We affirm.
The general rule is that "[a] builder or contractor is justified in relying upon the plans andspecifications which he [or she] has contracted to follow unless they are so apparently defectivethat an ordinary builder of ordinary prudence would be put upon notice that the work wasdangerous and likely to cause injury" (Ryan v Feeney & Sheehan Bldg. Co., 239 NY 43,46 [1924]; see Gee v City of New York, 304 AD2d 615 [2003]; Morriseau vRifenburg Constr., 223 AD2d 981 [1996]).
Parsippany failed to establish its prima facie entitlement to judgment as a matter of law(see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). AlthoughParsippany submitted evidence indicating that the placement and removal of temporary roadmarkings was performed according to the DOT's plans and specifications and that the DOT hadinspected and approved the work (see Loconti v Creede, 169 AD2d 900, 903 [1991]),there is evidence in the record that Parsippany supervised Safety Marking's work and wasresponsible for maintaining the road striping, and that at the time of the accident, the roadstriping had become severely faded and old striping was visible such that it was difficult fordrivers to discern the proper lane of travel. Thus, there remain issues of fact as to whether theappellants were negligent in failing to maintain the striping according to the DOT's plans andspecifications and whether such negligence was a proximate cause of the accident (see Purves v County of Erie, 12 AD3d1112 [2004]; Bailey v Honda Motor Co., 144 AD2d 119 [1988]). Accordingly,Parsippany's motion for summary judgment was properly denied, regardless of the sufficiency ofthe plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]; Joachim v 1824 ChurchAve., Inc., 12 AD3d 409 [2004]). Mastro, J.P., Covello, Balkin and Austin, JJ., concur.