| Bettineschi v Healy Elec. Contr., Inc. |
| 2010 NY Slip Op 04533 [73 AD3d 1109] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Frank A. Bettineschi et al., Respondents, v Healy ElectricContracting, Inc., Defendant/Third-Party Plaintiff-Appellant-Respondent. Bellway Electrical,Third-Party Defendant-Appellant. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), forthird-party defendant-appellant. Elovich & Adell, Long Beach, N.Y. (Darryn Solotoff, A. Trudy Adell, and Mitchel Sommerof counsel), for plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the defendant Healy ElectricContracting, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Nassau County (Spinola, J.), dated August 10, 2009, as denied its motion for summaryjudgment dismissing the complaint, and the third-party defendant Bellway Electrical separatelyappeals, as limited by its brief, from so much of the same order as denied its motion for summaryjudgment dismissing the third-party complaint.
Ordered that the order is affirmed, with one bill of costs to the plaintiffs-respondents.
The data control center of the injured plaintiff's workplace was being updated by thedefendant Healy Electric Contracting, Inc. (hereinafter Healy), and the third-party defendant,Bellway Electrical (hereinafter Bellway), with fiber optic and copper cables placed in channelsunder the floor. The floor was covered with 18-inch square tiles approximately 15 inches abovethe subfloor, which were removed as needed in order to access the channels below. The injuredplaintiff fell into an opening left by the removal of several tiles.
To prove a prima facie case of negligence in a case based on a hazardous condition, aplaintiff is required to show that the defendant created the condition which caused the accidentor that the defendant had actual or constructive notice of the condition (see Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]; Lamont v LaneBryant, Inc., 33 AD3d 669, 669-670 [2006]; Bradish v Tank Tech Corp., 216 AD2d505, 506 [1995]). Cases grounded on circumstantial evidence require a showing of sufficientfacts from which the negligence of the defendant and the causation of the accident by thatnegligence can be reasonably inferred (see Schneider v Kings Hwy. Hosp. [*2]Ctr., 67 NY2d 743 [1986]; Haggerty v Zelnick, 68AD3d 721 [2009]; Garrido v International Bus. Mach. Corp. [IBM], 38 AD3d 594[2007]; Bradish v Tank Tech Corp., 216 AD2d at 506; Thomas v New York City Tr.Auth., 194 AD2d 663, 664 [1993]).
Here, the defendant Healy failed to establish, prima facie, its entitlement to judgment as amatter of law by tendering sufficient evidence to eliminate material issues of fact (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In light ofcircumstantial evidence regarding the access of Healy employees to the data control center forthe purpose of installing cables prior to or on the date of the injured plaintiff's fall, Healy failedto eliminate triable issues of fact as to whether it created or had actual or constructive notice ofthe hazardous condition (see Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743 [1986];Haggerty v Zelnick, 68 AD3d at 721; Garrido v International Bus. Mach. Corp.[IBM], 38 AD3d at 596).
Similarly, in light of records of the individuals with access to the data control center aroundthe time the injured plaintiff fell, the third-party defendant Bellway failed to eliminate all triableissues of fact as to whether it created the condition or had actual or constructive notice of it.Thus, Bellway failed to establish, prima facie, its entitlement to judgment as a matter of law(id.). As Healy and Bellway failed to satisfy their prima facie burdens, their respectivemotions for summary judgment were properly denied, regardless of the sufficiency of theopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Prudenti,P.J., Angiolillo, Balkin and Chambers, JJ., concur.