Prieto v. City of New York

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about May 20, 1996, which granted plaintiffs motion for leave to amend the complaint so. as to assert direct causes of action against third-party defendants and denied third-party defendants’ cross motions for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Issues of fact exist as to whether construction work performed by third-party defendant Ecco created conditions in the underpass roof that eventually caused a piece of concrete to fall on plaintiffs vehicle, given Ecco’s use of equipment such as jackhammers and power saws at a site that was already in a deteriorated status, and as to whether Ecco fulfilled its contractual obligation to provide equipment for the protection of vehicular traffic. Similarly, issues of fact remain as to whether third-party defendant Urbitran Associates, the resident engineer on the project, adequately performed its duties to ensure the safe performance of the contractor’s work. We also find that the motion court did not improvidently exercise its discretion in granting plaintiff leave to amend the complaint, particularly where such amendment caused no prejudice to third-party defendants. Concur—Rosenberger, J. P., Ellerin, Ross, Nardelli and Mazzarelli, JJ.