Opinion
Index No. 154377/2020 Motion Seq. No. 001
01-09-2024
KELLY SANDERSON, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, THE CITY OF NEW YORK Defendants.
Unpublished Opinion
PRESENT: HON. DENISE M DOMINGUEZ Justice
DECISION + ORDER ON MOTION
HON. DENISE M. DOMINGUEZ J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 32, 33, 34, 35, 36,37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 were read on this motion to/for JUDGMENT-SUMMARY.
Upon the foregoing documents, and following oral argument, Plaintiffs motion for summary judgment pursuant to CPLR §3212 against Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY ("TRANSIT") is denied.
This personal injury matter arises out of a September 30, 2019, 5:45 p.m. incident that occurred along the sidewalk abutting 8th Avenue between 41st and 42nd Streets in Manhattan, in front of the Port Authority facility, when the Plaintiff, KELLY SANDERSON, alleges that they were injured due to a raised grate in the sidewalk (NYSCEF Doc. 34).
The Plaintiff moves post note of issue for summary judgment pursuant to CPLR §3212 seeking summary judgment against TRANSIT only, asserting that TRANSIT owned the subject grate, had a duty to maintain the grate, had notice of the condition and failed to remedy it. TRANSIT opposes the motion. Defendant THE CITY OF NEW YORK ("the CITY") does not submit opposition. A stipulation of discontinuance has been filed, discontinuing the complaint and all cross claims against Defendant THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY ("PORT AUTHORITY") (NYSCEF Doc. 63).
CPLR §3212 provides any party in any action, including in a negligence action, to move for-summary-judgment (CPLR-§3212 [a] Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d -853- [1974]). The party seeking summary judgment, even if unopposed, has the high burden of establishing entitlement to judgment as a matter of law with evidence in admissible form (see CPLR §3212 [b], Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734, 8 N.E.3d 823 [2014], Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772 [2003], Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324-25, 501 N.E.2d 572, 574 [1986], see also Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action". (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 574 [1986]). "[R]ank speculation is not a substitute for the evidentiary proof in admissible form that is required to establish the existence of a triable question of material fact." (Castore v. Tutto Bene Rest. Inc., 77 A.D.3d 599, 909 N.Y.S.2d 452, 453 [1st Dept 2010]).
"'[L]iability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property'." (Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879 [1996] quoting, Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724 [3d Dept 1992]).
Section 7-210 of the New York City Administrative Code "unambiguously imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure." (Sangaray v. W. River Assocs., LLC, 26 N.Y.3d 793, 797, 48 N.E.3d 933, 935 [2016]). While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-210. (Xiang Fu He v. Troon Mgmt., Inc., 34 N.Y.3d 167, 174, 137 N.E.3d 469, 475 [2019]). This duty is modified by Title 34 of the Rules &Regulations of the City of New York §2-07(b)(1), which provides that "[t]he owners of covers or gratings on a street are responsible for monitoring the condition of the covers, gratings and concrete pads installed around such covers or gratings and the area extending twelve inches outward from the edge of the cover, grating, or concrete pad, if such pad is installed." (34 RCNY §2-07[b] [1]).
Pursuant to Section 7-210 of the New York City Administrative Code and 34 RCNY §2-0.7[b][d.], the City of New York is the owner of the subway grating and has a non-delegable duty to maintain the grate. (Garrett v. City of New York, No. 1194, 2023 WL 8814719, at *2 ([1st Dept 2023], citing Fajardo v. City of New York, 197 A.D.3d 456, 148 N.Y.S.3d 908 [2d Dept 2021]). Accordingly, the CITY is the owner of sidewalk subway grates and would have the non-delegable duty to maintain the grate. However, TRANSIT, through its deposition witness, has acknowledged that the subject grate is a grate that it maintains/repairs in connection with the subway system (NYSCEF Doc. 45).
Upon review, Plaintiff has not shown that TRANSIT either created the raised grate or had notice of the condition with sufficient time to remedy it and failed to do so.
The Plaintiff testified at their October 25,2021 deposition that they were caused to trip and fall over a sidewalk grate that was raised approximately one to two inches. The Plaintiff did not notify anyone of the accident on the day it occurred. The Plaintiff did not take any photos at the time of the accident, but took photos several months after the accident. (NYSCEF Doc. 43). Upon review, the photographs marked for identification at the deposition do not clearly reflect the measured height differential. (NYSCEF Doc 44). Based upon the Plaintiffs deposition testimony and the photographs, it is clear that the Plaintiff was caused to trip over raised grate. There is no claim, let alone any admissible evidence, that the grate was broken, cracked or otherwise in disrepair.
The Plaintiff does not argue, and does not submit any admissible evidence, affidavit or expert report that TRANSIT created the subject raised grate.
As for notice to TRANSIT, the Plaintiff does not show through admissible that TRANSIT had either actual or constructive notice of the subject condition at any time prior to the accident. TRANSIT'S deposition witness, Heriberto Hernandez, testified that he was not aware of any complaints regarding a grate in the area where the Plaintiffs accident occurred (NYSCEF Doc. 55). Moreover, none of the records TRANSIT appears to have produced clearly shows notice to TRANSIT of the subject raised sidewalk grate at any time prior to the subject accident. Plaintiff attempts to establish actual notice on TRANSIT based upon the notice that the CITY received concerning two complaints (via the 311 call center) of trip hazards in January 2019, months prior to the accident. Although the CITY'S deposition testimony may establish that the CITY had notice about two trip hazards in the general area of the accident in January 2019, the CITY's witness testified that they did not know if TRANSIT was notified about the complaint. Moreover, there is no evidence that the complaints actually concern the subject grate involved in this incident (NYSCEF Doc. 49). Plaintiff also attempts to rely upon complaints apparently received by Defendant PORT AUTHORITY to establish notice on TRANSIT. Although the Plaintiff refers to various records produced by the PORT AUTHORITY in this matter, same do not appear to be annexed to the within motion and thus it is unclear to this Court whether they pertain to the subject grate. Moreover, the PORT AUTHORITY'S deposition witnesses also testified that they were unaware that any complaints were communicated to TRANSIT. (NYSCEF Doc. 47, 48). Thus, there is no admissible evidence that a complaint concerning the subject raised grate was ever forwarded or communicated to TRANSIT at any time prior to the subject accident.
Upon review, it appears that TRANSIT'S deposition witness, Frank Blandina, who was also questioned at length about various records produced by TRANSIT, was not specifically questioned as to whether TRANSIT received of the subject raised grate at any time prior to the accident.
Plaintiffs motion refers to the deposition testimony of the PORT AUTHORITY witness, (NYSCEF Doc. 48) to support this claim; however, it appears that Plaintiff was intending to refer to the CITY's deposition transcript (NYSCEF Doc. 49).
As for constructive notice, the Plaintiff has not submitted any admissible evidence that shows how long the specific condition that caused the Plaintiff to trip existed for prior to this incident. Notably, the Plaintiff testified that they had not seen the raised grate prior to the date of the accident. The Plaintiffs reliance upon Google maps images (NYSCEF Doc. 41) to establish constructive notice is unavailing. Even if this Court is to accept that the photos depict the specific area of the subject accident (the photos are not accompanied by an affidavit from the Plaintiff asserting same), the photos do not clearly show the subject raised grate, or any discernable defective condition and the Plaintiff offers no basis by which Google maps images photos of a grate that TRANSIT does not own should be held to establish constructive notice on TRANSIT.
In opposition to the motion, TRANSIT submits an affidavit from Lisa Lee ("Lee Affidavit"), a Customer Service Manager at TRANSIT (NYSCEF Doc. 57). The Lee Affidavit avers that TRANSIT does not receive complaints via the 311 system, and that based upon the search conducted by Lee, no complaints were received by TRANSIT for a raised vent grate at the location of this accident between September 30, 2017 (two years prior to the accident) and September 30, 2020 (one year after the accident). TRANSIT had only received notice of one pre- accident complaint concerning a grate that was located at 620 8th Avenue, which appears to be on the-opposite-side-of-the-street-from where the Plaintiffs accident occurred.
Upon review, there is no evidence that TRANSIT had notice of the subject raised grate at any time prior to the Plaintiffs accident and a general awareness of a dangerous condition is insufficient to establish liability, (see Carter v. New York City Hous. Auth., 101 A.D.3d 510, 956 N.Y.S.2d 26 [1st Dept 2012; Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 646 N.E.2d 795 [1994]).
Accordingly, the Plaintiff has not met their prima facie burden in establishing negligence against TRANSIT as a matter of law in this matter.
Accordingly, it is hereby
ORDERED that the Plaintiffs motion summary judgment is denied; and it is further
ORDERED that within 20 days from the entry of this order, Plaintiff shall serve a copy of this order with notice of entry upon all parties and the Clerk of the Court (60 Centre Street, Room 14 IB) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).