This is an action to recover for personal injuries allegedly sustained by plaintiff on July 8, 2003 when she tripped and fell in the roadway while crossing the street in front of premises located at 1441 Forest Avenue, Staten Island, New York.

In moving for summary judgment, the Keyspan defendants claim that they cannot be held liable for the alleged hazardous condition of the street as a matter of law since their work at the subject location was performed more than three years prior to the accident date. In support, defendants rely on Title 34 of the Rules of the City of New York, § 2-11(e) (16) (ii), which provides that "[p]ermittees shall be responsible for permanent restoration and maintenance of street openings and excavations for a period of three years ....commencing

on the restoration completion date." As a result, the Keyspan defendants (hereinafter "defendants") contend that their statutory duty to maintain the street opening through which they had installed gas service at 1441 Forest Avenue in September of 1999 expired well before the date of plaintiff's accident.

Additionally, defendants claim that the alleged defect in the roadway is too trivial in nature to be actionable, and that it lacks any of the characteristics of a trap or snare. It is also argued that plaintiff's "pure speculation" as to the cause of her fall is fatal to her case. In this regard, defendants point to plaintiff's deposition testimony wherein she [*2]allegedly admitted that she did not observe the roadway defect either before or at the time of her accident, but rather returned to the site two or three days afterwards and determined that certain "small indentations" in the roadway must have caused her to fall.

In opposing the motion, plaintiff maintains that the so-called "three-year rule" has no application to the facts at bar since the defect which caused plaintiff's fall was created at the time the work was completed. In other words, plaintiff claims that defendants' work was negligently performed in the first instance. Plaintiff also contends that the roadway was in the same condition in July 2003 as it was when Keyspan completed its work in 1999. In support, plaintiff relies upon the deposition testimony of a non-party, Charles Milano, the owner/operator of the commercial establishment located at 1441 Forest Avenue. This witness testified that prior to the opening of his store in October of 1999, he had requested Keyspan to install a gas line. According to Mr. Milano, the condition of the roadway after the installation was unchanged from that time until the time of plaintiff's accident.

Plaintiff further maintains that, as enunciated in Ingles v City of New York (309 AD2d 835), the cited rule does not impose a three-year limit on a contractor's common-law liability for affirmative acts of negligence which result in the creation of a defective roadway. Here, plaintiff argues that the evidence shows that defendants created the defective condition when they restored the roadway after installing the gas line. Plaintiff also challenges defendants' characterization of the claimed defect as trivial, and submits three photographs that were marked as exhibits at her 50-h hearing. According to plaintiff, these photographs clearly depict a cracked, uneven and patched area of the roadway containing multiple holes and indentations.

In the opinion of this Court, while the Keyspan defendants have met their initial burden of establishing, prima facie, that any statutory duty to maintain the subject roadway

pursuant to 34 RCNY § 2-11 (e) (16) (ii) had terminated well before plaintiff's accident (see Paladino v Time Warner Cable of NY City, 16 AD3d 646, 648; Humphreys v Veneziano, 268 AD2d 461, 462), plaintiff has successfully countered that evidence and raised a triable issue of fact as to whether any affirmative acts of negligence on the part of these defendants resulted in the creation of a dangerous condition in the roadway (see Ingles v City of New York, 309 AD2d at 836; cf. Humphreys v Veneziano, 268 AD2d at 462; see also Zuckerman v City of New York, 49 NY2d 557, 562). In addition to plaintiff's photographic depictions of the accident site, the deposition testimony of the non-party witness is adequate to raise a question of fact as to the character of the moving defendants' restoration of the road surface and the alleged trivial nature of the subject defect (see Trincere v County of Suffolk, 90 NY2d 976, 977).

Lastly, contrary to defendants' contention, plaintiff's deposition testimony sufficiently identified the location and nature of the condition which allegedly caused her to fall for purposes of resisting summary judgment. [*3]

Accordingly, it is

ORDERED, that the nonmunicipal defendants' motion for summary judgment dismissing the complaint is denied.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Dated: April 20, 2007/s/

Hon. Thomas P. Aliotta, J.S.C.

Fricke & Solomon, P.C.

Att: Robert A. Solomon, Esq.

622 Barlow Avenue

Staten Island, NY 10312

Cullen and Dykman LLP

Att: Karina E. Murski, Esq.

177 Montague Street

Brooklyn, NY 11201