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BLOOMINGDALES v. NYC TR AUTH

52 A.D.3d 120 (2008)

859 N.Y.S.2d 22

BLOOMINGDALES, INC., Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent and Third-Party Plaintiff-Respondent. M-TRACK ENTERPRISES, INC., Third-Party Defendant-Respondent. M-TRACK ENTERPRISES, INC., Second Third-Party Plaintiff-Respondent, v. JUDLAU CONTRACTING, INC., Second Third-Party Defendant-Respondent, et al., Second Third-Party Defendant. JUDLAU CONTRACTING, INC., Third Third-Party Plaintiff-Respondent, v. JANUS INDUSTRIES, INC., Third Third-Party Defendant-Respondent.

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

May 15, 2008.

Attorney(s) appearing for the Case

Lester Schwab Katz & Dwyer, LLP, New York City (Harry Steinberg and Steven B. Prystowsky of counsel), for appellant.

Fabiani Cohen & Hall, LLP, New York City (Lisa A. Sokoloff of counsel), for New York City Transit Authority, respondent.

Cerussi & Spring, P.C., White Plains (Lisa Conte and Kevin P. Westerman of counsel), for M-Track Enterprises, Inc., respondent.

Biedermann, Hoenig & Ruff, P.C., New York City (Peter H. Cooper and Peter Hoenig of counsel), for Judlau Contracting, Inc., respondent.

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Janus Industries, Inc., respondent.

MAZZARELLI and MOSKOWITZ, JJ., concur with LIPPMAN, P.J.; FRIEDMAN and SWEENY, JJ., dissent in a separate opinion by SWEENY, J.

OPINION OF THE COURT

LIPPMAN, P.J.

In 1999, defendant New York City Transit Authority had undertaken a project for the rehabilitation of an electrical power substation on 57th Street between Lexington and Third Avenues. As part of the work on that project, excavation was performed on Third Avenue between 59th and 60th Streets, outside plaintiff Bloomingdales, Inc.'s location at 1000 Third Avenue. In late 2000 or early 2001, when it would rain heavily, Bloomingdales...

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