White v. Humphrey

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of defendant DiFiore Construction, Inc. (DiFiore), for summary judgment dismissing the complaint against it. DiFiore met its initial burden, establishing that the project was designed, controlled and supervised by the New York State Department of Transportation (DOT) (see, Stevens v Bast Hatfield, 226 AD2d 981, 981-982; Quinn v Nigro Bros., 216 AD2d 281; Loconti v Creede, 169 AD2d 900, 902). Plaintiffs, however, raised issues of fact whether DiFiore followed the specifications mandated by DOT and whether the specifications themselves provided sufficient safety devices for channeling traffic away from the drainage inlet holes. There is thus a further issue of fact whether the specifications were “ ‘so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury’ ” (Pioli v Town of Kirkwood, 117 AD2d 954, 955, lv denied 68 NY2d 601, quoting Ryan v Feeney & Sheehan Bldg. Co., 239 NY 43, 46, rearg denied 239 NY 604; see also, Loconti v Creede, supra, at 903). Finally, DiFiore failed to establish that plaintiffs’ expert was unqualified or that his affidavit was without probative force (see, Matter ofFasano v State of New York, 113 AD2d 885, 889; Felt v Olson, 74 AD2d 722, 722-723, affd 51 NY2d 977; see also, Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533, n 2). (Appeal from Order of Supreme Court, Monroe County, Siracuse, J.—Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.