Decided November 20, 2007

Corsino v New York City Tr. Auth., 42 AD3d 325, modified.

APPEARANCES OF COUNSEL

Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for appellants.

Cerussi & Spring, White Plains (Peter J. Morris and Jeffrey N. Lanci of counsel), for New York City Transit Authority and others, respondents.

Law Offices of Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, New York City (Oliver W. Williams of counsel), for Villafane Electric Corp., respondent.

Memorandum.

The Appellate Division order should be modified, with costs to plaintiffs against defendants New York City Transit Authority, CAB Associates and Villafane Electric Corp. by denying the motions for summary judgment by these defendants and, as so modified, affirmed, [*2]with costs to defendant Sheldon Electric Company, Inc. against plaintiffs.

Except as to defendant Sheldon Electric Company, Inc., we agree with Supreme Court and the dissenting Justices at the Appellate Division that triable issues of fact exist as to whether the hazardous condition that caused the injured plaintiff's fall was the result of negligence (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]) and as to whether the owner and contractor defendants exercised the requisite supervisory or safety control over defendant Villafane Electric Corp.'s work on the property so as to preclude summary judgment dismissing the complaint as to those defendants (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352-353 [1998]).

The record establishes as a matter of law that Sheldon did not exercise supervisory or safety control over the work in question, and as to that defendant the complaint was properly dismissed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.