Wasser v. City of New York — 251 A.D.2d 173

Majority

p. 173

Sylvia Wasser et al., Respondents, v City of New York, Respondent, and Edenwald Contracting Co., Inc., Appellant.

[673 NYS2d 1001]

—Order, Supreme Court, New York County (Jane Solomon, J.), entered December 3, 1997, which, in an action for personal injuries sustained in a fall in a crosswalk allegedly caused by a defective expansion joint installed by

p. 174

defendant-appellant contractor, insofar as appealed from, denied the contractor’s cross motion for summary judgment dismissing the complaint and any cross claims as against it, unanimously affirmed, without costs.

The affidavit of plaintiffs expert engineer identifying specific provisions of the contract that the contractor violated is more than adequate to raise an issue of fact as to contract compliance. Given the nature of the asserted defects, including use of a nonconforming tar filler and the absence of any sealer at the accident area, and the testimony of the contractor’s representative that the tar filler used would last “indefinitely”, we reject the contractor’s argument that plaintiffs expert’s affidavit lacks probative value. Concur — Milonas, J. P., Nardelli, Wallach and Rubin, JJ.