The Second Department, reversing Supreme Court, determined the defendant sidewalk-repair contractor’s motion for summary judgment in this slip and fall case should not have been granted. There was a question of fact whether the contractor who repaired the sidewalk created the hole which caused plaintiff to trip. A contractor may be liable for an affirmative act of negligence which results in a dangerous condition on a public street or sidewalk:
“A contractor may be [held] liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk” … . Here, Amato [the defendant contractor] failed to establish its prima facie entitlement to judgment as a matter of law.
At his deposition, Victor Amato, Amato’s owner, testified that his company had replaced a portion of the sidewalk at the subject location. … He acknowledged … that a two-by-four had been installed as a vertical “stake” to support a form that was used when the concrete was poured, and that he or one of his employees would have removed the stake after the concrete had set.
… [T]he plaintiff testified that she had not seen the hole because, from the direction she was walking, it was on the other side of an uneven, or sloped, portion of the sidewalk. Victor Amato admitted that this slope had been created deliberately (through a process known as “feathering”) because the new portion of the sidewalk was at a different height from the existing sidewalk. Pizzolorusso v Metro Mech., LLC, 2022 NY Slip Op 03018, Second Dept 5-4-22
Practice Point: Contactors which create a dangerous condition on a public sidewalk or road may be liable to a member of the public who is injured by the dangerous condition. The theory is similar to the “launch an instrument of harm” theory of contractor liability under the Espinal case.