Dennis Pantore et al., Respondents, v. Patchas Realty, LLC, Appellant, and Health Care Waste Services Corp. et al., Respondents

Dennis Pantore et al., Respondents, v Patchas Realty, LLC, Appellant, and Health Care Waste Services Corp. et al., Respondents. [851 NYS2d 167] [MAJORITY] Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 15, 2006, which, to the extent appealed from, denied the cross motion of defendant Patchas Realty, LLC for summary judgment dismissing the complaint and cross claims asserted against it, unanimously affirmed, with costs. There is a triable issue of fact as to whether Patchas negligently maintained the perimeter wall that collapsed onto plaintiff. Although Patchas was on notice of prior instances of trucks striking the wall and had installed I-beams and barriers to strengthen certain areas of the wall and prevent trucks from striking it again, it installed no such devices in the area of the wall where plaintiffs accident occurred (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). Concur—Tom, J.P., Saxe, Gonzalez, Buckley and Catterson, JJ.