Asriyan v. City of N.Y.

Full title: Valeriy Asriyan, Plaintiff, v. The City of New York, JARIMA ASSOCIATES…

Court: Supreme Court, New York County

Date published: Aug 17, 2016

2016 N.Y. Slip Op. 51220 (N.Y. Sup. Ct. 2016)

Opinion

154395/2013

08-17-2016

Valeriy Asriyan, Plaintiff, v. The City of New York, JARIMA ASSOCIATES, LLC, and FIRST REPUBLIC BANK, Defendants.

Attorney for Plaintiff: Yuriy Prakhin, Esq. Law Office of Yuriy Prakhin, P.C. 1883 86th Street, 2nd Floor Brooklyn, NY 11214 Tel.: 718-946-5099 Attorneys for Defendants: Jesse Goldberg, Esq., Assistant Corporation Counsel Alexandra Hastings, Esq., Assistant Corporation Counsel Zachary Carter, Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Tel.: 212-356-8686 John A. Risi, Esq. Pillinger Miller Tarallo, LLP Attorneys for Defendant Jarima Associates, LLC 570 Taxter Road, Ste. 275 Elmsford, NY 10523 Tel.: 914-703-6300

James E. d'Auguste, J.

Attorney for Plaintiff: Yuriy Prakhin, Esq. Law Office of Yuriy Prakhin, P.C. 1883 86th Street, 2nd Floor Brooklyn, NY 11214 Tel.: 718-946-5099 Attorneys for Defendants: Jesse Goldberg, Esq., Assistant Corporation Counsel Alexandra Hastings, Esq., Assistant Corporation Counsel Zachary Carter, Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Tel.: 212-356-8686 John A. Risi, Esq. Pillinger Miller Tarallo, LLP Attorneys for Defendant Jarima Associates, LLC 570 Taxter Road, Ste. 275 Elmsford, NY 10523 Tel.: 914-703-6300 James E. d'Auguste, J.

RECITATION, AS REQUIRED BY CPLR 2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION: PAPERS/NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1, 2 (Exs. A-I) AFFIRMATIONS IN OPPOSITION 3 (Ex. A), 4 (Exs. A-D) REPLY AFFIRMATION 5 (Ex. A)

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:

In an action to recover damages for injuries allegedly sustained on March 20, 2013, plaintiff Valeriy Asriyan asserts that he tripped and fell on the sidewalk outside of 165 Church Street in the County, City, and State of New York. Goldberg Aff., Exs. A, B. Defendant The City of New York ("the City") moves, pursuant to CPLR 3212, for an order granting summary judgment in its favor, dismissing plaintiff's complaint and all cross-claims against the City, and for such other and further relief as this Court deems just and proper. For the reasons stated below, the City's motion for summary judgment is granted in its entirety.

Factual and Procedural Background

Plaintiff contends that he tripped and fell due to a hole located on the sidewalk in front of 165 Church Street. Goldberg Aff., Ex. D. On or about April 10, 2013, plaintiff served a notice of claim upon the City, which identified the location of the incident as the sidewalk abutting 165 Church Street. Id., Ex. B. On May 13, 2013, plaintiff commenced the instant action by filing a summons and verified complaint. Id. On or about June 10, 2013, the City joined issue by serving a verified answer.¹ Id., Ex. C.

1 The Court notes that the City's answer is undated and is not electronically filed, except as Exhibit C to its motion; however, the verification accompanying the answer is dated June 10, 2013.

On or about June 4, 2013, plaintiff appeared for a hearing pursuant to General Municipal Law Section 50-h at which he testified to the above facts. Id., Ex. D. At his 50-h hearing, plaintiff was also shown photographs depicting the allegedly defective condition and identified the specific area where he tripped and fell on the sidewalk, specifically indicating a location on the sidewalk abutting 165 Church Street. Id., Ex. D at Tr. 19:11-25.

As a result of plaintiff's pleadings and testimony, the New York City Department of Transportation ("DOT") searched for records pertaining to the section of Church Street located between Reade and Chambers Streets for a period of two-years prior to and including the date of plaintiff's accident for "permits, applications for permits, corrective action requests, notices of violation, inspections, maintenance and repair orders, sidewalk violations, contracts, complaints, and Big Apple Maps." Id., ¶ 6; Ex. G, ¶ 3. The search uncovered the following results for the above identified sidewalk location: one permit, one hardcopy permit, no applications, one OCMC (Office of Construction and Mitigation Coordination) file, no corrective action requests, no notice of violations, no notifications for immediate corrective actions, no inspections, no contracts, no maintenance and repair records, no complaints, three sidewalk inspections, no Office of Special Events records, and two Big Apple Maps. Id., ¶ 7.

On August 1, 2014, Omar Coding, a DOT record searcher, testified at a deposition on behalf of the City as to the records uncovered by the search. Id., Ex. H. Codling testified that the one permit that was uncovered was issued to Judlau Contracting Incorporation ("Judlau") for construction performed on Chambers Street, not Church Street, and that no notice of violations were issued to Judlau related to this permit. Id., Ex. H, at Tr. 9:14-20, 12:2-5. He also testified that three sidewalk inspections were held, but no violations were issued as a result of said inspections. Id., Ex. H, at Tr. 12:8-24.

On or about October 27, 2015, David Atik, an employee of the New York City Department of Finance, conducted a search of the Real Property Assessment Division database for any records relating to Block 149, Lot 14 in New York County, which is the map location of the property in question. Id., Ex. I, ¶¶ 2, 4. After conducting the above search, Atik affirmed that the City is not the owner of the property located at 165 Church Street and that the property is a Building Class D7 (elevator apartments with stores) classification that is not exempt under Section 7-210 of the Administrative Code of the City of New York ("Section 7-210"). Id., Ex. I, ¶ 3.

The City maintains that the abutting property owner is liable for the hole, or defect, which allegedly caused plaintiff's injury. However, plaintiff contends that the hole, or defect, is not located on the sidewalk abutting the property, but on the curb in front of the property that would make the City liable in this action. Similarly, defendant Jarima Associates, LLC ("Jarima") also contends that the City is liable for the maintenance and repair of the curb where they assert the alleged defect is located. Defendant First Republic Bank does not oppose the instant motion.

Based upon the above testimony and records uncovered, on December 17, 2015 the City moved for summary judgment.

Discussion

CPLR 3212 mandates that a court may grant summary judgment, "if, upon all the papers and proof submitted, the cause of action or defense [is] established sufficiently to warrant the court as a matter of law [to direct] judgment in favor of any party." CPLR 3212(b). The moving party must establish its entitlement to judgment by submitting proof in admissible form. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Once the moving party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of material issues of fact that would need to be determined at trial. Id. It is important to note that in order to defeat a motion for summary judgment, "expressions of hope or unsubstantiated allegations or assertions are insufficient" (id.) "and averments merely stating conclusions, of fact or law, are insufficient." Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 NY2d 285, 290 (1973).

In regard to the specific question of liability at issue, the analysis starts with the location of the defect that caused the injury. To determine whether the City or the abutting property owner is the party responsible for maintaining a specific portion of sidewalk, and, as a result, is liable for such an injury, the applicable law is Section 7-210, which applies exclusively to "sidewalks" and not to "curbs." See Ascencio v. New York City Hous. Auth., 77 AD3d 592, 593 (1st Dep't 2010). Section 7-210 provides no definition for "sidewalk" to clarify the location of defects for which property owners may be liable. However, courts have routinely applied the definition of "sidewalk" found elsewhere in the Administrative Code of the City of New York at Section 19-101(d) to Section 7-210. Id. at 593. Section 19-101(d) defines "sidewalk" as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." Id. Section 7-210 essentially functions as a liability shifting statute designed to remove the City from liability for injuries resulting as a result of dangerous sidewalk conditions, and instead places liability upon the real property owners abutting those sidewalks subject to certain exceptions. See Coogan v. City of New York, 73 AD3d 613, 614 (1st Dep't 2010). Section 7-210(b) states, in relevant part: "the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." Section 7-210(c) states, in relevant part, that: "the city shall not be liable for any [such] injury . . . proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition." Accordingly, abutting property owners are liable for an injury on the sidewalk, whereas the City is only liable for any defective curb conditions as imposed by Section 7-210. See Ascencio, 77 AD3d at 593.²

2 Exceptions exist under the common law where "an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use" (Meyer v. City of New York, 114 AD3d 734, 735 (2d Dep't 2014); however, the Court does not discuss this common law exception as the City has met its entitlement to summary judgment as a matter of law.

As an initial matter, the alleged defect upon which plaintiff tripped was purportedly located on the sidewalk abutting 165 Church Street, a residential building with commercial storefronts on the first level, and not on the curb. In the photographs submitted in opposition to the City's motion that depict this alleged defect, plaintiff identified said defect as being a hole on the other side of the curb lines located in between the adjacent property lines and the curb lines. See Prakhin Aff., at 4;³ id. Ex. C. Based upon the photographs, the curb is shown to be entirely intact and the hole upon which plaintiff allegedly tripped is separate and apart from the curb. Additionally, as asserted by the City in its motion papers, the property in question is classified as "Building Class D7 (elevator apartments with stores)" and is thus subject to the liability shifting provisions in Section 7-210. See Goldberg Aff., Ex. I. Plaintiff does not submit any opposing evidence as to the building classification of 165 Church Street. Accordingly, the plaintiff raised no issue of triable fact with regard to the location of the alleged defect and the City cannot be held liable for sidewalk defects that abut this kind of mixed-use property. Cf. Sisler v. City of New York, 84 AD3d 638 (1st Dep't 2011) (holding that where the property owner did not use her residential property exclusively for that purpose, she was not exempt from liability under Section 7-210). Additionally, the City cannot be held liable as a matter of law because it established, based upon a search of real property records, that it is not the owner of the building and therefore it is not the abutting property owner of the sidewalk. Rodriguez v. City of New York, 70 AD3d 450 (1st Dep't 2010).

3 The Court notes that the affirmation in opposition to the instant motion submitted by Yuriy Prakhin, Esq. does not have page or paragraph numbers, but will nonetheless use page numbers for identification purposes.

Second, plaintiff also contends that the City should be liable for the alleged sidewalk defect because it was located near a City-owned manhole cover that was marked with the letters "DPW," which stands for the Department of Public Works, an agency of the City, and that a crack running from the manhole caused the alleged defect. Although plaintiff presents no evidence to support this claim,⁴ assuming arguendo that the alleged sidewalk defect is somehow related to the manhole cover, the City cannot be held liable on this basis. New York City Department of Transportation Highway Rule 34, Section 2-07 ("RCNY 2-07") governs the maintenance and repair of sidewalk grates and hardware. The statute places the burden of repair and maintenance on the owner(s) of the hardware, or those who have exclusive control over such hardware. Hurley v. Related Mgmt. Co., 74 AD3d 648 (1st Dep't 2010). However, in relation to Section 7-210, no liability is imposed upon an abutting property owner for failure to maintain the hardware itself in a reasonably safe condition. Id. Thus, even if the City exercised complete control over the manhole cover, it would only be responsible for the maintenance of the manhole cover and the sidewalk area "extending twelve inches outward from the perimeter" of the manhole cover. 34 RCNY § 2-07(b)(2).

4 Although neither party submitted any evidence indicating the distance from the alleged sidewalk defect and the manhole cover, it appears to be outside the twelve-inch zone that would render the City liable.

Further, in order to hold the City liable under RCNY 2-07, it would need prior written notice of the alleged defect at issue. See Arenzo v. City of New York, 128 AD3d 527, 527-28 (1st Dep't 2015). Despite the fact that the City may be the exclusive owner of the manhole based upon the imprinted "DPW" on the manhole cover, the City was not provided with prior written notice of any such defect. Here, the City had no prior written notice of the defect because the legend on the Big Apple Map, supplied by plaintiff, indicates a defect in the curb itself, not the sidewalk. Prakhin Aff., Ex. A. Thus, even if the alleged defect was within the City's twelve-inch zone of liability, the City could not be held liable due to the lack of any prior written notice of the defect at issue.

Third, plaintiff asserts that the City may still be liable for injuries that occur on a sidewalk that abuts a property subject to the liability shifting provisions of Section 7-210 when the City causes or creates the defect. See Gary v. 101 Owners Corp., 89 AD3d 627 (1st Dep't 2011) (stating that "a landowner is not liable for a defect . . . unless the landowner created the defect"). Here, plaintiff presents no evidence as to how the City could have created the hole in the sidewalk. Instead, they rely on averments merely stating conclusions of fact without any admissible evidence to serve as the basis for their opposition to the instant motion—conclusions that are insufficient to defeat a summary judgment motion. See Mallad Constr. Corp., 32 NY2d at 290.

The assertion made by both plaintiff and defendant Jarima in opposition to the instant motion, that the City somehow created the alleged defect, is speculative and unsupported by any admissible evidence before this Court. Jarima's basis for its assertion is derived from the deposition of the superintendent of 165 Church Street who testified he saw City workers around the outside of the property during the same time period as the Chambers Street reconstruction and that "the City would access work areas and place equipment on the sidewalk in front of the subject premises." Risi Aff., ¶ 9; see id., Ex A, at Tr. 34-36. The deposition testimony provides no explanation or specificity as to how the defect was made, where it was made, or what the workers were actually doing at the subject premises, just that there may or may not have been City workers around the sidewalk outside of 165 Church Street around the time of nearby construction. Cf. Fernandez v. 707, Inc., 85 AD3d 539, 540 (1st Dep't 2011) (holding that a party opposing a summary judgment motion failed to raise a triable issue of fact when relying solely on the deposition testimony of a project manager that in no way explained how a dangerous condition was created that allegedly caused plaintiff's injuries). The statements are unsupported by any documentary evidence before this Court, especially since the DOT records indicate that the City did not perform any work on Church Street within the two years prior to and including the date of plaintiff's injury. The only evidence of any construction performed by the City was construction work performed on Chambers Street that, after three sidewalk inspections, returned no violations. Both plaintiff's and Jarima's assertions are speculative and not grounded in any fact or admissible evidence that is necessary to defeat a summary judgment motion. Such bald conclusory allegations are insufficient to raise a genuine issue of material fact to defeat the City's motion for summary judgment. See Mallad Constr. Corp., 32 NY2d at 290.Fourth, plaintiff's argument that the City should be held liable under Section 19- 152(a)(6) of the Administrative Code of the City of New York has no merit. The statute obligates landowners to repair "hardware defects" in the sidewalk that abuts the owner's property. The statute, as it relates to this instance, defines "hardware defects" as "hardware or other appurtenances not flush within ½" of the sidewalk surface." Based on the statutory construction of Section 19-152(a)(6), courts have interpreted hardware to include items that are "meant to be imbedded in the sidewalk," such as a manhole cover, that "when properly constructed, is flush with the surrounding sidewalk." King v. Alltom Props., Inc., 16 Misc 3d 1125(A), at *2 (Sup. Ct., Kings County 2007). As such, abutting landowners would be responsible for fixing defects in the abutting sidewalk that arise from unwarranted or inappropriate protrusions. Contrary to plaintiff's assertion, the statute is inapplicable to the instant case and is irrelevant to the City's liability. The issue here is not the protrusion of the manhole cover above the sidewalk surface, but is instead an alleged defect in the vicinity of the manhole cover. Thus, the City is not liable to plaintiff under Section 19-152(a)(6).

Fifth, plaintiff requests further discovery because he asserts that the DOT examiner was unfit to search the appropriate documents pertaining to a DPW manhole cover. Pursuant to CPLR 3212(f), a plaintiff may be entitled to further discovery only if the plaintiff can show that "facts essential to justify opposition to [defendant's motion] might exist but could not then be stated." Alcor Life Extension Found. v. Johnson, 136 AD3d 464, at *1 (1st Dep't 2016). Under no circumstances may the provision be used by the parties "as a means to embark upon a fishing expedition' to explore the possibility of fashioning a viable cause of action." Markov v. Spectrum Grp. Int'l Inc., 136 AD3d 413, 414 (1st Dep't 2016). Here, plaintiff's request for additional discovery amounts to nothing more than a "fishing expedition" that CPLR 3212(f) is designed to prevent. See id. After having engaged in two years of discovery of DOT records, plaintiff filed a note of issue claiming that discovery was complete and the case would be ready to proceed to trial. At no point throughout the entire discovery process is there any evidence that plaintiff argued that the DOT examiner was unfit to produce the appropriate documents requested, an issue that could have been raised at any point before the note of issue was filed, but was instead raised for the first time in opposition to the instant motion. As the City asserts, its "DOT record search encompasses work performed on the sidewalks of New York City and as such, would include any records relating to manholes at these locations," including the manhole cover at issue, should any such records exist. Hastings Aff., ¶ 11. Accordingly, plaintiff's claim that he is entitled to additional discovery is meritless.

Conclusion

Based upon the foregoing, the City's motion for summary judgment is granted in its entirety, dismissing plaintiff's complaint and all cross-claims against the City. Although a party may still be liable for plaintiff's alleged injury and is responsible to repair the sidewalk defect, pursuant to Section 7-210, the City cannot be held liable because it is not responsible for maintaining the portion of sidewalk containing the complained of defect. This constitutes the decision and order of this Court. Dated: August 17, 2016 ___________________________ Hon. James E. d'Auguste, A.J.S.C.