Hare v. City of New York

— Judgment, Supreme Court, New York County (Herman Cahn, J., and a jury), entered on April 29, 1991, in favor of plaintiffs and against defendant-appellant, unanimously affirmed, with costs.

Plaintiff was injured when he fell in the vicinity of a manhole grating owned by defendant Consolidated Edison Company. In its charge to the jury regarding defendant’s "special use” of the public roadway, the court properly instructed that section 3.1 of the Rules and Regulations Relating to Street Openings of the New York City Department of Transporation’s Bureau of Highway Operations (11 RCNY 2-14) defined defendant’s area of special use to include a 12-inch area surrounding the grating. The court also properly charged that defendant’s failure to comply with appendix D, paragraph G.l, of the same rules, requiring that "all manhole covers and other street hardware shall be maintained flush with the most recent surrounding grade”, could be considered as evidence of defendant’s negligence. Finally, there is no merit to defendant’s argument that plaintiffs failed to make out a prima facie case. Concur — Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.