Donald Salisbury et al., Plaintiffs, v. City of New York et al., Defendants; 440 Realty Co., Third-Party Plaintiff-Respondent, v. Knickerbocker Paper Co., Third-Party Defendant-Appellant. (And a Second Third-Party Action.)

Donald Salisbury et al., Plaintiffs, v City of New York et al., Defendants. 440 Realty Co., Third-Party Plaintiff-Respondent, v Knickerbocker Paper Co., Third-Party Defendant-Appellant. (And a Second Third-Party Action.) [665 NYS2d 410] [MAJORITY] —Order, Supreme Court, New York County (Jane Solomon, J.), entered September 16, 1996, which, in an action by plaintiff, a garbage remover, against a building owner for injuries sustained when his foot went through a hole in an abutting sidewalk, denied the motion of third-party defendant, plaintiffs employer, for summary judgment dismissing the building owner’s third-party complaint and all cross claims as against it, unanimously affirmed, without costs. We agree with the IAS Court that the deposition testimony of the building’s superintendent and a former maintenance person that third-party defendant’s multi-ton garbage truck was routinely backed onto the sidewalk raises an issue of fact as to whether third-party defendant’s negligence created the hole in the sidewalk that allegedly caused plaintiffs injuries (see, Centeno v City of New York, 204 AD2d 508). The issue is not, as third-party defendant would have it, whether it had control over plaintiffs work site, but whether its employees negligently created the hole by routinely driving onto the sidewalk to pick up the garbage, conduct that third-party defendant did have control over. Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.