
    Raymond Skolnick et al., Respondents, v Roy Kalimian, Appellant-Respondent, et al., Defendants. Roy Kalimian, Third-Party Plaintiff-Respondent, v York Scaffold Equipment Corp., Third-Party Defendant-Respondent-Appellant.
   Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about September 11, 1991, which inter alia, dismissed the principal complaint as time barred as against defendant York Scaffold and which denied so much of the motion to dismiss the third-party complaint and cross-claims against York Scaffold, unanimously affirmed, without costs.

The record demonstrates that the IAS Court properly determined material issues of fact existed sufficient to preclude the grant of appellants’ motions for summary judgment. Plaintiff, who was injured when he fell on a mound of concrete located on the crosswalk of a public street in 1987, sued, inter alia, the owners of two buildings and various construction companies who performed work for either of those two buildings prior to the accident date. Plaintiff asserted that these defendants negligently created the dangerous condition. Defendant Kalimian, the owner of one of the buildings, hired third-party defendant-appellant York to install a pedestrian sidewalk in 1983. The claim by York Scaffold that it did not use concrete in its work, was rebutted by an affidavit from a ground floor store owner adjacent to the accident site who averred that the mound of concrete appeared to be the same concrete used to secure the scaffold poles. Further, Kalimian failed to come forward with sufficient evidence in admissible form to support his claim that he could not be held vicariously liable for the acts of an independent contractor, York Scaffold (see, e.g., Matter of Beach v Velzy, 238 NY 100). A material question of fact exists also as to whether the abutting landowner, Kalimian, utilized part of the public way to a special use for his own benefit (see, Balsam v Delma Eng’g Corp., 139 AD2d 292, 298, lv dismissed 73 NY2d 783). Concur — Sullivan, J. P., Milonas, Ross, Asch and Kassal, JJ.  