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DOBESS REALTY v. CITY OF NY

79 A.D.2d 348 (1981)

Dobess Realty Corp. et al., Respondents-Appellants, v. City of New York, Respondent, and New York City Transit Authority et al., Appellants-Respondents. (Action No. 1.) 612 West 137th Street Corp., Respondent, v. City of New York, Respondent, and Warshaw Construction Corp., Appellant-Respondent. (Action No. 2.) New York Telephone Company, Respondent-Appellant, v. City of New York, Respondent, and New York City Transit Authority et al., Appellants-Respondents. (Action No. 3.) Daniel Brito et al., Respondents-Appellants, v. City of New York, Respondent, and New York City Transit Authority et al., Appellants-Respondents. (Action No. 4.) Spiros Nitsos, Doing Business as King Pizza, Respondent-Appellant, v. Warshaw Construction Corp., Appellant-Respondent. (Action No. 5.) New York City Transit Authority, Respondent-Appellant, v. Warshaw Construction Corp., Appellant-Respondent, and City of New York, Respondent. (Action No. 6.)

Appellate Division of the Supreme Court of the State of New York, First Department.

March 3, 1981

Attorney(s) appearing for the Case

Robert H. Silk of counsel (Louis H. Cohen and George E. Ashley, attorneys), for respondents-appellants in Action No. 4 and respondent-appellant in Action No. 5; and Empire City Subway Company (Limited), respondent-appellant in Action No. 1 and New York Telephone Company, respondent-appellant in Action No. 3.

William F. Larkin for Warshaw Construction Corp., appellant-respondent.

Michael Gage of counsel (Leonard Koerner and Carolyn E. Demarest with him on the brief; Allen G. Schwartz, Corporation Counsel, attorney), for City of New York, respondent.

Joseph J. Klem of counsel (Ernest J. Williams, attorney), for Consolidated Edison Company of New York, Inc., respondent-appellant in Action No. 1.

KUPFERMAN, J. P., SANDLER, MARKEWICH, SILVERMAN and BLOOM, JJ., concur.

Per Curiam.

In 1973 defendant Warshaw Construction Company contracted with the New York City Transit Authority, as agent for the City of New York, to construct a new subway entrance at Broadway and 137th Street in Manhattan. The plan required exposing a 50-foot portion of a 36-inch diameter cast iron water main, which had been installed in 1903. As Warshaw was required to excavate 15 feet below the main to allow for...

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