Katz v. City of New York

Judgment, Supreme Court, New York County (Walter Tolub, J., upon decision of Eugene Nardelli, J.), entered February 10, 1994, and amended on or about May 11, 1995, which, upon a jury verdict finding, inter alia, plaintiffs’ damages attributable in equal proportion to the negligence of defendant City of New York and third-party defendant Anthony Grace and Sons adjudged that plaintiffs recover the full amount of the verdict, plus interest, costs and disbursements from defendant City and that defendant City have judgment over and recover from third-party defendant Grace the full amount of judgment, unanimously affirmed, without costs. The relevant contract between the City and its general contractor, testimony at trial, and the police accident report support the jury’s conclusion that the City and its general contractor, Grace, were equally responsible for the injuries sustained by plaintiff. Since the City and/or its agent created the hazardous condition, no prior notice to the City of the hazard was required in order to hold the City liable (see, Blake v City of Albany, 63 AD2d 1075, affd 48 NY2d 875; see also, Kiernan v Thompson, 73 NY2d 840). Third-party defendant Grace’s argument that it should not be required to fully indemnify the City and should bear only 50% of the liability should have been raised on its prior appeal of the July 12, 1993 order in this case, which culminated in this Court’s affirmance (203 AD2d 179). Accordingly, we will not consider this issue on this appeal (see, Pjetri v New York City Health & Hosps. Corp., 169 AD2d 100, lv dismissed 79 NY2d 915; see also, Harbas v Gilmore, 214 AD2d 440, lv dismissed 87 NY2d 861). [449] We have considered the City’s and Grace’s other contentions for affirmative relief and find them to be without merit. Concur—Rubin, J. P., Ross, Williams, Tom and Andrias, JJ.