Supreme Court, Appellate Division, Second Department, New York.

Charles HADEN, plaintiff-respondent,
v.
FENLEY & NICOL ENVIRONMENTAL, INC., et al., appellants.
Lockwood Kessler & Bartlett, Inc., defendant-respondent (and a third-party
action).


June 12, 2000.


 Forklift operator who was injured when forklift tipped into hole in pavement at 
waste disposal plant sued engineering firm and contractor that had worked on 
tank replacement project. The Supreme Court, Nassau County, Lockman, J., denied 
defendants' motion for summary judgment. Defendants appealed. The Supreme Court, 
Appellate Division, held that issues of fact as to who created hole, and 
engineering firm's degree of control over project, precluded summary judgment.

 Affirmed.


West Headnotes

Judgment  181(33)
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Issues of fact existed, in forklift operator's personal injury action against 
engineering firm and contractor that had worked on tank replacement project at 
waste disposal plant, as to who created hole in pavement that caused forklift to 
tip and throw operator and as to firm's degree of supervision or control over 
project, precluding summary judgment for firm or contractor. McKinney's CPLR 
3212(b).
 **582 Fiedelman & McGaw, Jericho, N.Y. (Carol A. Moore and Susan Lysaght of 
counsel), for appellant Fenley & Nicol Environmental, Inc.

 L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Annalee Cataldo-
Barile of counsel), for appellant Cashin Associates, P.C.

 Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Stuart R. Goldstein of 
counsel), for plaintiff-respondent.


 CORNELIUS J. O'BRIEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and  ROBERT W. 
SCHMIDT, JJ.



 MEMORANDUM BY THE COURT.

 *273 In an action to recover damages for personal injuries, the defendant 
Fenley & Nicol Environmental, Inc., appeals, as limited by its brief, from so 
much of an order of the Supreme Court, Nassau County (Lockman, J.), dated 
February 16, 1999, as denied its motion for summary judgment dismissing the 
complaint and all cross claims insofar as asserted against it, and the defendant 
Cashin Associates, P.C., appeals from so much of the same order as denied its 
motion for summary judgment dismissing the complaint and all cross claims 
insofar as asserted against it.

 ORDERED that the order is affirmed insofar as appealed from, with one bill of 
costs to the plaintiff-respondent.

 On April 28, 1994, the plaintiff Charles Haden, a forklift operator for the 
Town of Oyster Bay (hereinafter the Town), was injured when he was thrown from 
the forklift he was operating as it tipped into a hole in the pavement at the 
Town's Waste Disposal Plant.   Approximately two years before the incident, the 
Town had employed the defendant Cashin Associates, P.C. (hereinafter Cashin), to 
provide engineering consultant services with respect to a tank replacement 
project at the plant and had retained the defendant Fenley & **583 Nicol 
Environmental, Inc. (hereinafter Fenley), as the contractor on the project.

 The Supreme Court properly denied the separate motions of Cashin and Fenley for 
summary judgment dismissing the complaint *274 and all cross claims insofar as 
asserted against them, as issues of fact exist, inter alia, as to who created 
the hole, and the degree of Cashin's supervision or control over the project 
(see, CPLR 3212[b];  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 
N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 
562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, D'Andria v. County of 
Suffolk, 112 A.D.2d 397, 492 N.Y.S.2d 621).

 The parties' remaining contentions are without merit.

709 N.Y.S.2d 582, 273 A.D.2d 273, 2000 N.Y. Slip Op. 05719

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