Opinion
No. 101794/10.
2013-05-21
Lyudmila STASKEVICH and LEONID STASKEVICH, Plaintiffs, v. The CITY OF NEW YORK and Joseph A. Parrino, Defendants.
THOMAS P. ALIOTTA, J.
The following papers numbered 1 to 7 were fully submitted the 11th day of April, 2013.
+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion for Summary Judgment by Defendant The City of New ¦1 ¦ ¦York, with Supporting Papers (dated October 19, 2012) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion for Summary Judgment by Defendant ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Joseph A. Parrino, with Supporting Papers (dated November 6, 2012) ¦2 ¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Cross Motion for Summary Judgment by Plaintiffs Lyudmila ¦ ¦ ¦Staskevich and Leonid Staskevich, with Supporting Papers (dated ¦3 ¦ ¦February 1, 2013) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Reply Affirmation by Defendant Joseph A. Parrino (dated February 20,¦4 ¦ ¦2013) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Affirmation by Defendant The City of New York in Opposition to ¦5 ¦ ¦Plaintiffs' Cross Motion (dated February 22, 2013) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Plaintiffs' Affirmation in Opposition to Defendant Joseph A. ¦6 ¦ ¦Parrino's Motion for Summary Judgment (dated February 27, 2013) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Reply Affirmation by Defendant Joseph A. Parrino (dated March 14, ¦7 ¦ ¦2013) ¦ ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, the respective motions (Nos. 001 and 002) of defendants The City of New York (hereinafter, the “City”) and Joseph A. Parrino for, inter alia, summary judgment are granted and plaintiffs' cross motion (No. 003) for, inter alia, partial summary judgment on the issue of liability is denied.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Lyudmila Staskevich on January 14, 2010 at approximately 7:00 p.m., when she tripped and fell on a raised sidewalk flag abutting certain premises owned by defendant Joseph A. Parrino, located at 189 Titus Avenue, Staten Island, New York. The injured plaintiff claims that her accident occurred on the Ebbitts Street side of defendant Parrino's property. It is undisputed that the height differential between the two sidewalk flags at the accident site, as depicted, e.g., in the authenticated photographs submitted to the Court, was caused by the growth of the roots of a curbside tree located on City property.
In moving to dismiss the complaint and for summary judgment, the City maintains that it is not liable for any injuries allegedly sustained by plaintiff as a result of the above hazardous condition because it did not have prior written notice of the alleged sidewalk defect, nor did it cause or create the condition. In support, defendant relies upon the deposition testimony of John Kilcullen, a Staten Island Borough Forester employed by New York City Department of Parks and Recreation (hereinafter, “Parks and Recreation”), who testified regarding a record search performed by William Schaeffer, a Climber and Pruner for the Staten Island Forestry Division of his department. According to Mr. Kilcullen, the search, which included both sides of Ebbitts Street between Titus Avenue and Mill Road, was designed to uncover any sidewalk repair requests, “311” service requests, correspondence, pruning records, tree cards, tree removal records, maintenance and repair records, complaints and any other writings related to the condition of this sidewalk for three years prior to the date of the accident. As recounted by the witness, Mr. Schaeffer found no records or complaints regarding an elevated sidewalk flag or any tree-related issue at the location of plaintiff's fall. The City also submits the affidavit of Dmitriy Surkov, an employee of the City's Department of Transportation (hereinafter, “DOT”), who performed a search of records maintained by DOT relating to the sidewalk at the intersection of Ebbitts Street and Titus Avenue, and for that block of Ebbitts Street which is located between Titus Avenue and Mill Road. According to Mr. Surkov, he found no permits, corrective action requests, notices of violation, inspections, maintenance and repair orders, sidewalk violations, contracts and/or complaints for the two-year period prior to and including the date of plaintiff's accident. He further avers that the relevant Big Apple Maps were filed with DOT on February 2, 2004, and indicated that the sidewalk on Ebbitts Street at the location of plaintiff's accident was noted to be “OK”.
It is well established that “[a] municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto” (Carlo v. Town of Babylon, 55 AD3d 769, 770;see Poirer v. City of Schenectady, 85 N.Y.2d 310, 313). To date, the Court of Appeals has recognized only two exceptions to this rule, i.e., “where the municipality created the defect or hazard through an affirmative act of negligence” [and] “where a special use confers a special benefit upon the locality” (Amabile v. City of Buffalo, 93 N.Y.2d 471, 474;see Oboler v. City of New York, 8 AD3d 888, 889).
Consonant with the foregoing, it is the opinion of this Court that the City has established its right to judgment as a matter of law by demonstrating prima facie that it did not have prior written notice of the alleged sidewalk defect as required by section 7–201(c) of its Administrative Code of the City of New York. In addition, the papers presently before this Court are devoid of any proof of a “written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition” (Administrative Code of the City of New York § 7–201[c]; Bruni v. City of New York, 2 NY3d 319, 324–327;cf. Sacco v. City of New York, 92 AD3d 529, 530).
In opposition to the City's motion and in support of their cross motion for partial summary judgment on the issue of liability, plaintiffs maintain that they have not received proper responses to their discovery demands concerning facts “pertaining to the planting of the tree [in question] and inspections of the tree by the City”, which they purport to be relevant to the demonstration of “acts of negligence [by the City] which created the defect”. Inasmuch as “the affirmative negligence exception [to the prior written notice law is] ... limited to work by the City that immediately results in the existence of a dangerous condition (Oboler v. City of New York, 8 NY3d at 889, citing Bielecki v. City of New York, 14 AD3d 301 [emphasis in original] ), plaintiffs' speculation that the curbside maple tree at issue was improperly planted some 12 to 15 years prior to the accident does not, in itself, constitute an affirmative act of negligence for which the City may be held liable. Moreover, even assuming, arguendo, that the disclosure sought by plaintiffs would establish that the City failed to control the roots of the tree in question, such an act would constitute, at best, simple nonfeasance for which there can be no liability absent prior written notice of the condition ( see Farrell v. City of New York, 49 AD3d 806, 808;Lifer v. City of Kingston, 295 A.D.2d 695, 696;cf. Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d 725, 726;Zizzo v. City of New York, 176 A.D.2d 722, 723). Also worthy of note is the fact that the thorough and detailed deposition testimony of the City's witness, John Kilcullen, concerning the scope of Parks and Recreations' search for records in this matter renders plaintiffs' remaining contentions regarding perceived inadequacies in the record search to be unavailing.
In view of the foregoing, plaintiffs have failed to submit evidence sufficient to raise a triable issue of fact as to whether the City possessed prior written notice of the sidewalk defect for purposes of section 7–201 of its Administrative Code or affirmatively created the alleged dangerous condition ( see Carlo v.. Town of Babylon, 55 AD3d 769, 770;Farrell v. City of New York, 49 AD3d at 807–808).
Turning to the abutting landowner's motion for summary judgment, it is well established that “[a]n abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty” (Romano v. Leger, 72 AD3d 1059, 1059;see Simmons v. Guthrie, 304 A.D.2d 819).
In support of his motion, defendant Parrino maintains that since his premises consists of a single two-family dwelling that is owner-occupied and used exclusively for residential purposes, he is exempt from liability for plaintiff's alleged injuries under section 7–210(b) of the Administrative Code of the City of New York. In opposition, plaintiffs dispute the claim that Mr. Parrino's premises is used exclusively for residential purposes. More particularly, it is argued that notwithstanding the existence of a deed conveying the premises to Mr. Parrino, certain public documents available on the New York City Department of Finance website, i.e., a “Notice of Property Value” dated January 15, 2013 and a “Statements List for Parcel”, identify the owner of 189 Titus Avenue as “Creative Carpentry”. According to plaintiffs, since a search of the records of New York State Department of State reveals that Creative Carpentry is not a registered corporation, a triable issue of fact exists as to whether or not defendant Parrino's residence is also utilized as a place of business.
The Court disagrees. This purported issue of fact was sufficiently addressed at defendant Parrino's examination before trial, where he testified that he retired from his career as a union carpenter in 2006/2007, and although he had at one time conducted a “little [home improvement] side work ... from his home”, Creative Carpentry “[went] out of business 25 years ago”. Plaintiff has not submitted a scintilla of evidence to the contrary. In view of this unrebutted testimony, the Court considers defendant's explanation of his unsuccessful efforts to correct the so-called “tax assessment” notices sufficient to eliminate any material issue of fact regarding his use of the subject premises exclusively for residential purposes.
Moreover, as evidenced by, e.g., the photographs of the accident site which were marked into evidence at the parties' depositions, there is no suggestion that a special use of the subject sidewalk may have contributed to the defect (Jacksonv Thomas, 35 AD3d 666, 667–668;Adorno v. Carty, 23 AD3d 590, 591), or that the abutting landowner created the alleged hazardous condition ( see Romano v. Leger, 72 AD3d at 1059;Simmons v. Guthrie, 304 A.D.2d 819, 820). Hence, the complaint as against the individual defendant must be dismissed.
In view of this determination, plaintiffs' cross motion for partial summary judgment has been rendered academic.
Accordingly, it is
ORDERED, that the separate motions for summary judgment of defendants The City of New York and Joseph A. Parrino are both granted, and the complaint is hereby dismissed; and it is further
ORDERED, that plaintiffs' cross motion for summary judgment is denied in its entirety; and it is further
ORDERED, that the Clerk enter judgment accordingly.