(dissenting and voting to modify the interlocutory judgment by deleting the provisions thereof awarding the plaintiff judgment against the defendant third-party plaintiff, Maintenance Service Resources, Inc., for 100% of any damages verdict entered upon a retrial on damages, and directing that the defendant third-party plaintiff, Maintenance Service Resources, Inc., may collect 40% of the amount to be paid to the plaintiff from the third-party defendant, Allied Exterminating, and substituting therefor provisions directing a new trial only on the issue of the apportionment of fault among the defendant third-party plaintiff, Maintenance Service Resources, Inc., the third-party defendant, Allied Exterminating, and the nonparty Universal Builders & Developers Corp., and granting the plaintiff judgment against the defendant third-party plaintiff, Maintenance Service Resources, Inc., in accordance with the provisions of CPLR 1601 with respect to any damages verdict entered upon retrial on the issue of damages and, as so modified, to affirm the interlocutory judgment): Because, in my view, the liability verdicts in this case were supported by legally sufficient evidence and were not against the weight of the evidence, I respectfully dissent.
On March 3, 1995 the plaintiff, Kisnet Brooks worked for HIE of Greater New York (hereinafter HIE), which occupied, *890inter alia, the tenth floor of a building located at 7 West 34th Street in Manhattan. HIP’s offices were open 24 hours a day. The plaintiffs regular work shift was from 4:30 p.m. until 1:30 a.m., with a one-hour break at approximately 10:30 p.m. On the night of the accident, the plaintiff arrived at work, and took her break as scheduled. She had not been advised that any maintenance would be performed in the office that night. Upon reentering HIP’s offices after her break, she walked down a hallway, and, as she turned a corner, she stepped into an unguarded opening in the raised floor. There were no warning signs or barricades to indicate the presence of the opening, which apparently had been created during the plaintiffs break.
Unbeknownst to the plaintiff, maintenance contractors were performing a “rodent clean-out” that night—a procedure which necessarily called for the removal of certain floor tiles, so that exterminators could access areas under the raised floor where rodents were likely to be found. The opening left by the removal of each floor tile measured approximately four square feet, and had a depth of several inches. The plaintiff fell into one such opening.
Pursuant to the lease entered into between HIP and the owner of the building, HIP was solely responsible, inter alia, for pest control in the demised premises. HIP retained the defendant third-party plaintiff, Maintenance Service Resources, Inc. (hereinafter Maintenance), to provide daily maintenance and security services for the entire leased premises, as well as “complete” exterminating services. In turn, Maintenance subcontracted the pest control work to the third-party defendant, Allied Exterminating (hereinafter Allied).
In addition to its regularly-scheduled pest control work, Maintenance would also provide “special” services, such as rodent clean-outs, either when requested by HIR or whenever Maintenance proposed such work and HIP approved it. When a rodent clean-out was needed, Maintenance directed Allied to perform the work, and HIP retained a separate contractor to remove carpeting and floor tiles so that Allied personnel could access the areas beneath the raised floor.
On the night of the accident, HIP retained Universal Builders & Developers Corp. (hereinafter Universal), a nonparty, to assist Allied by lifting certain floor tiles in the plaintiff’s work area. Allied had seven or eight employees working in the building that night, with approximately half assigned to work on the plaintiff’s floor. Universal had approximately two to four employees on site. Allied and Universal worked as a team. Allied would direct Universal to create an opening at specified loca*891tions, and then treat and bait the area in the open floor. Once Allied finished its work at that location, it instructed Universal to close the opening. As many as three or four openings might remain open at any given time.
The owner of Allied Andrew Klein testified that his employees were supposed to remain at the location of an opening until a Universal employee arrived to close it, and that it would be improper for Allied to “just walk away” from an opening unless someone from Universal was already there to close it. By contrast, the Allied employee who supervised the actual work that night, Richard Rodriguez, testified that Allied personnel simply called out for a Universal employee to come and close the opening, and then left immediately for the next location.
Based on the foregoing evidence, the jury found Maintenance liable to the plaintiff on the complaint, and Allied liable to Maintenance for contribution in the third-party action. Contrary to the views expressed by my colleagues, I find that the plaintiff established a prima facie case of negligence against Maintenance, and that Maintenance, in turn, established a prima facie case against Allied for contribution (cf. McDermott v City of New York, 201 AD2d 339 [1994]). In my view, the evidence adduced at trial was sufficient to permit a rational jury to conclude that Maintenance had contractually assumed from HIP complete responsibility over pest control work in the leased premises (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579 [1994]; Crosby v Ogden Servs. Corp., 236 AD2d 220 [1997]). The evidence further showed that Maintenance knew that certain parts of HIP’s offices were opened 24 hours a day, and that a rodent clean-out operation—which would require creating up to 30 to 40 openings in the floor—was scheduled on the night of the accident. Maintenance, however, “never gave a thought” as to whether or not there might be HIP employees working in the area that night, despite knowledge that the work called for the creation of several openings in the floor of an active workplace— arguably a “process fraught with potential danger” to the affected employees (Rohlfs v Weil, 271 NY 444, 448 [1936]; cf. Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 669-670 [1992]; Beck v Woodward Affiliates, 226 AD2d 328, 330 [1996]; Lockowitz v Melnyk, 1 AD2d 138, 139-140 [1956]). Moreover, a jury, based on the evidence adduced at trial, could rationally conclude that Allied, in its capacity as Maintenance’s subcontractor, was negligent in failing to guard the opening into which the plaintiff fell. In sum, I conclude that the plaintiffs liability verdict against Maintenance, as well as Maintenance’s liability verdict against Allied on the third-party contribution *892claim, were supported by legally sufficient evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), and were not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]).
Nevertheless, a new trial only on the issue of apportionment of fault among Maintenance, Allied, and Universal is required as a result of the trial court’s refusal, over Allied’s objection, to have the jury determine the percentage of fault, if any, attributable to the nonparty Universal (see CPLR 1601; Roseboro v New York City Tr. Auth., 286 AD2d 222 [2001]).