           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
95
CA 10-01971
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


ELIZABETH LAYMON AND JERRY W. LAYMON, SR.,
PLAINTIFFS-RESPONDENTS,

                     V                            MEMORANDUM AND ORDER

JAMES F. ALLEN, DOING BUSINESS AS ALLEN’S
VILLAGE GREENE LANDSCAPING CO.,
DEFENDANT-APPELLANT,
BRANCK CONSTRUCTION, ET AL., DEFENDANTS.


LAW OFFICES OF THERESA J. PULEO, SYRACUSE (JOHN F. PFEIFER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL A. CASTLE, HERKIMER, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Herkimer County
(Michael E. Daley, J.), entered November 24, 2009 in a personal injury
action. The order, insofar as appealed from, denied the motion of
defendant James F. Allen, doing business as Allen’s Village Greene
Landscaping Co., for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Elizabeth Laymon (plaintiff) when she fell after
her foot became caught in a hole in a parking lot maintained by, inter
alia, James F. Allen, doing business as Allen’s Village Greene
Landscaping Co. (defendant). Contrary to the contention of defendant,
Supreme Court properly denied his motion for summary judgment
dismissing the amended complaint against him. “A contractor may be
liable for an affirmative act of negligence [that] results in the
creation of a dangerous condition upon a public street or sidewalk”
(Losito v City of New York, 38 AD3d 854, 855; see Brown v Welsbach
Corp., 301 NY 202, 205). Here, the evidence submitted by defendant in
support of his motion was insufficient to establish as a matter of law
that he did not create or cause the allegedly dangerous condition (see
Losito, 38 AD3d at 854) or that his alleged negligence was not a
proximate cause of plaintiff’s injuries (see Dodge v City of Hornell
Indus. Dev. Agency, 286 AD2d 902; Kanney v Goodyear Tire & Rubber Co.,
245 AD2d 1034, 1036).

Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
