Opinion
9954/2012
10-04-2016
Austin Mood and Rita Mood, Plaintiffs, v. The City of New York, the New York City Fire Department, Thurman Verona Apts. Corp. and Argo Real Estate, LLC., Defendants.
The following papers numbered 1 to 10 read on this motion by defendants THE CITY OF NEW YORK and THE NEW YORK CITY FIRE DEPARTMENT (collectively hereinafter the City) for an order pursuant to CPLR 3212(b) granting the City summary judgment and dismissing plaintiffs' complaint and all cross-claims:
Papers/Numbered
Notice of Motion-Affirmation-Exhibits..................1 - 4 Affirmation in Opposition-Exhibits.....................5 - 7 Reply Affirmation-Exhibits.............................8 - 10
In this negligence action, plaintiffs seek to recover damages for personal injuries that Mr. Mood sustained as a result of a trip and fall incident that occurred on February 11, 2012 on the sidewalk surrounding the FDNY fire alarm post Box No. 3213 located at the corner of 65th Road and Yellowstone Boulevard, in Queens County, New York.
On April 30, 2012, plaintiff Austin Mood appeared for a 50-H hearing. He testified that on the date of the accident he was heading home from the bus stop. He went up the ramp at the intersection of 65th Road and Yellowstone Boulevard with the intention to continue walking down Yellowstone Boulevard. He walked two to three feet up the ramp when he tripped and fell. He did not see what caused him to trip and fall until after he fell. He tried to pull himself up by a fire alarm box that was located about a foot to his right. He had walked the same route several times prior to the incident, but had never noticed the defect prior to the incident. He described the alleged defect as a slab of concrete that was raised two inches high. The concrete was square and looked cracked.
Plaintiffs filed a Notice of Claim with the City on May 19, 2012, and commenced this action by filing a summons and verified complaint on June 14, 2012. The City joined issue by service of an answer with cross-claim on May 31, 2012. A supplemental summons and amended complaint was served on July 13, 2012.
The City now moves for an order pursuant to CPLR 3212(b), granting summary judgment in favor of the City and dismissing plaintiffs' complaint on the ground that there was no prior written notice of the alleged defect given to the City as required by Administrative Code of the City of New York § 7-201. Pursuant to Administrative Code of the City of New York § 7-201(c)(2), a plaintiff must plead and prove that the City had prior written notice of a defective, unsafe, dangerous, or obstructed condition of a sidewalk before it can be held liable for its alleged negligence related thereto (see Minew v City of New York, 106 AD3d 1060 [2d Dept. 2013]). Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained sidewalk unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Yarborough v City of New York, 10 NY3d 726 [2008]; Marshall v City of New York, 52 AD3d 586 [2d Dept. 2008]).
To demonstrate, prima facie, that it did not have prior written notice of the defect, defendant submits the transcript of the examination before trial of Abraham Lopez, a record searcher for the New York City Department of Transportation (DOT), taken on November 8, 2013. Mr. Lopez testified that a search was conducted by DOT's Highway Inspection and Quality Assurance (HIQA) to determine whether DOT conducted the patch work on or around the subject fire alarm post box. HIQA was unable to determine whether the patch work was completed by DOT. The HIQA search was conducted for in front of 105-10 65th Road. A sidewalk search was also conducted by DOT for Yellowstone Boulevard between 65th Road and 66th Avenue for two years prior to and including the date of the subject incident. Permits, applications, records from the Office of Construction Mitigation and Coordination, CARS, NOVs, NICAs, inspections, maintenance and repair records, complaints, sidewalk violations, records from the Office of Special Events, and Big Apple Maps were searched for. One permit, one application, two inspections, and one Big Apple Map were found.
Jeremy John, a paralegal for DOT, submitted an affidavit affirming that a search was conducted for permits, CARs, NOVs, inspections, contracts, maintenance and repair orders, complaints, sidewalk violations and Big Apple Maps for the sidewalk located at Yellowstone Boulevard between 65th Road and 66th Avenue for two years prior to and including the date of the incident. He affirms that the search resulted in one permit, one application, two inspections, and a Big Apple Map.
On November 8, 2013, Janusz Czartoryski, a Communication Electrician for the FDNY, appeared for an examination before trial. He testified that the Communication Electrician Department is responsible for maintaining, repairing, and installing alarm box systems in New York City as well as providing internal communications for firehouses and a fiber optic system. In February 2012, he was responsible for repairing fire alarm boxes. This would include the masonry work surrounding the fire alarm box. If a Supervisor at FDNY received a 311 complaint, then a written work order would be issued to a communication electrician to inspect and repair the alarm box. He testified that within the FDNY search there is an Electrician's Work Report dated December 9, 2009, indicating that a particular circuit is open. Two Communication Electricians went to repair the open circuit, but the circuit was good at the location they were sent to. Accordingly, they followed the circuit from box to box. When they reached the subject box, they found the post was damaged. They straightened the post, reinstalled the box, secured it and closed the circuit. There was also an Electrician's Work Report dated December 10, 2009, indicating that the subject box needs the post to be replaced because the post rotted at the bottom. The old post was removed, a new post and new bolts were installed, and the communication electricians cemented and finished the concrete along with removing all debris. Mr. Czartoryski also testified that there is another Electrician's Work Report dated April 30, 2012. He responded to that work report. The report indicates that the subject alarm box needs to be replaced. He found a post held up by one bolt and all the concrete was broken and loose. He and his partner broke up the concrete with a jackhammer, installed four new bolts, and put down two new bags of concrete.
On June 19, 2014, Leonardo Labella, a Supervisor of Communication Electricians for the FDNY, appeared for an examination before trial. He testified that he went to the subject location about a week before the April 30, 2012 work order, when this lawsuit was first brought to his attention. John Fiorentino, the Senior Supervisor, had asked him to check out the subject location. He testified that there are no routine physical inspections of fire alarm boxes. The alarm boxes are monitored electronically. If the computer system indicates that a circuit is open, then FDNY would respond to check the circuit.
On August 21, 2014, John Fiorentino appeared for an examination before trial. He testified that a 311 complaint is the only way FDNY would be notified about a condition that needs to be repaired. He confirmed that there is a work report that was issued on April 30, 2012 to repair the subject box. The repair was done on April 30, 2012. He testified that if FDNY Communication Electricians noticed the problem before April 30, 2012, then there would have been a previous work order.
Based on the above deposition testimony and submitted affidavits, counsel for the City, Pamela Jean Cullington, Esq., contends that the City has shown, prima facie, that it did not receive any written notification of the alleged defect that precipitated plaintiff's alleged incident. The City contends that the testimony shows that a search was conducted for, inter alia, maintenance and repair records, permits, inspection reports, complaints and contracts for the location of plaintiff's incident and found no such records which would constitute prior written notice of the alleged defect. Specifically, the testimony demonstrates that the permit was issued to Daidone Electric Inc., and the application was by Daidone Electric Inc. for the permit. Thus, the permit had nothing to do with the subject fire alarm call box. The two inspections were marked as "Pass." Finally, the Big Apple Map dated June 26, 2003 cannot establish prior written notice as the concrete surrounding the subject box was repaired on December 10, 2009. Therefore, the defect reflected in the Big Apple Map cannot be the same defect due to the subsequent repair.
Counsel also requests that the complaint against the New York City Fire Department be dismissed as it is not an entity capable of being sued. Counsel contends that pursuant to the New York City Charter § 396, agencies of the City are not legal entities for the purpose of suit and should not be named as a party in the caption (see Funt v Human Resources Admin. of the City of New York, 68 AD3d 490 [1st Dept. 2009]).
In opposition, plaintiffs' counsel, Ann Jen, Esq., asserts that the City has failed to establish, prima facie, that the City was not on notice of the alleged defective condition which caused plaintiff to trip and fall. Counsel states that the City failed to establish that the work report dated April 30, 2012 was not the result of prior written notice received by the City. Although, the City contends that the subject repair resulted from notice of the litigation herein, plaintiffs' counsel argues that the testimony of Mr. Labella and Mr. Fiorentino does not establish such as they both testified that they did not know what instigated the April 30, 2012 work request. Based on such, counsel contends that the City failed to account for the origins of the work report dated April 30, 2012, and therefore, summary judgment cannot be granted as the City cannot dispute the absence of prior written notice to the City.
In reply, the City points to the disclosed email exchange regarding the origins of the April 30, 2012 work. Specifically, there is an email dated April 4, 2012 from Robert J. Boyce, Jr., Chief of Communication of the FDNY, indicating that a field visit to the subject box is needed as legal is looking for alarm box maintenance records. There is another email from Mr. Fiorentino dated April 6, 2012 indicating that crews will be dispatched to make repairs.
Upon review and consideration of the City's motion, the affirmation in opposition and the reply thereto, this Court finds that the City's motion for summary judgment is granted.
"Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by a defective condition in the roadway unless it either has received written notice of the defect or an exception to the written notice requirement applies" (Pallotta v City of New York, 121 AD3d 656 [2d Dept. 2014]; Amabile v City of Buffalo, 93 NY2d 471 [1999]; Braver v Village of Cedarhurst, 94 AD3d 933 [2d Dept. 2012]; Pennamen v Town of Babylon, 86 AD3d 599 [2d Dept. 2011]). Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Braver v Village of Cedarhurst, 94 AD3d 933, 934 [2d Dept. 2012]).
Here, the City succeeded in establishing its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the testimony of DOT and FDNY employees, indicating that a search of the relevant records was conducted, covered the period of two years prior to the date of the incident, and found no prior written notice of a defective condition corresponding to the condition alleged by plaintiffs.
In opposition, plaintiffs failed to submit evidence sufficient to raise a triable issue of fact (see Bryan v City of Peekskill, 74 AD3d 1115 [2d Dept. 2010]; Denio v City of New Rochelle, 71 AD3d 717 [2d Dept. 2010]; McCarthy v City of White Plains, 54 AD3d 828 [2d Dept. 2008]).
Accordingly, based upon the foregoing it is hereby,
ORDERED, that the branch of the motion to dismiss the action against defendant, The New York City Fire Department, an agency of the City, is dismissed without opposition pursuant to § 396 of the New York City Charter; and it is further,
ORDERED, that the motion by defendant, The City of New York, for summary judgment dismissing the complaint of plaintiffs on the ground of lack of prior notice is granted, and the Clerk of Court shall enter judgment accordingly. Dated: October 4, 2016 Long Island City, NY ______________________________