Benjamin v. City of N.Y.

Full title: Yannick Benjamin and ANGELA BENJAMIN, Plaintiffs, v. The City of New York…

Court: Supreme Court, New York County

Date published: Apr 28, 2017

2017 N.Y. Slip Op. 50619 (N.Y. Sup. Ct. 2017)

Opinion

106847/04

04-28-2017

Yannick Benjamin and ANGELA BENJAMIN, Plaintiffs, v. The City of New York, THE NEW YORK CITYDEPARTMENT OF TRANSPORTATION, NEW YORKCITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF PARKS, And TROCOM CONSTRUCTION CORP., Defendants.

Appearances of counsel on this motion are as follows:William A Gallina, P.L.L.CFor the Plaintiffs1250 Waters PlaceBronx, NY 10461Zachary W. CarterCorporation Counsel By Gia Rose Dicola, Esq.100 Church StreetNew York, New York 10007Torino & Bernstein, P.C.For Trocom Construction Corp.By Eva J. Tompkins, Esq.200 Old Country Road, Suite 220Mineola, NY 11501

William Franc Perry, J.

Appearances of counsel on this motion are as follows:William A Gallina, P.L.L.CFor the Plaintiffs1250 Waters PlaceBronx, NY 10461Zachary W. CarterCorporation Counsel By Gia Rose Dicola, Esq.100 Church StreetNew York, New York 10007Torino & Bernstein, P.C.For Trocom Construction Corp.By Eva J. Tompkins, Esq.200 Old Country Road, Suite 220Mineola, NY 11501

Motion sequence nos. 005 and 006 are consolidated for disposition. In motion sequence 005 THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF PARKS move, pursuant to CPLR 3212 for summary judgment seeking and order dismissing all claims and cross claims. Defendant TROCOM CONSTRUCTION CORP. also moves (sequence no. 006) for summary judgment to be entered in its favor.

This is a personal injury action arising from a single car automobile accident that is alleged to have occurred on October 27, 2003, at approximately 12:50 a.m., on a rainy evening on the Henry Hudson Parkway near the intersection of 96th Street. It is alleged that plaintiff Yannick Benjamin, on his way home to the Bronx after working a 3:30 pm to 11:00 pm shift as a server at the Ritz Carlton Hotel in Manhattan, lost control of his vehicle and veered from the middle lane of traffic to the left, where his vehicle crashed into the concrete median and then veered on a diagonal across traffic to the right where it collided with a guardrail. As a result of the accident, it is alleged that plaintiff suffered a burst fracture at T-9 and was rendered paralyzed. Defendants, The City of New York, The New York City Department of Transportation, New York City Department of Environmental Protection, New York City Department of Parks, and Trocom Construction Corp. (hereinafter Defendants, and/or City or Trocom) move for summary judgment seeking an order dismissing all claims and cross-claims pursuant to CPLR §3212. PROCEDURAL and FACTUAL BACKGROUNDThis action was initially commenced solely against the City and the named agency defendants by service of a summons and complaint dated April 29, 2004. Plaintiffs alleged that the City defendants, as owners, operators and managers of the roadway where the subject accident occurred, had a duty to shore, guard, equip, repair construct and illuminate the roadway at or near the accident location. It is alleged that the City defendants caused plaintiff's accident by failing to properly own, maintain, manage, control, repair, and/or design the area where the accident occurred by creating an unsafe and "traplike condition" on the roadway and by failing to warn of the "dangerous and hazardous condition" on the roadway and failing to provide "those on the roadway with proper visibility to see what is on the roadway". (Affirmation of Gia Rose Dicola, Esq. dated November 30, 2015, Ex. B). Specifically, plaintiffs allege that the City was negligent in its ownership, maintenance and design of the particular section of guardrail that plaintiff's vehicle encountered on the right hand side of the Henry Hudson Parkway after he had collided with the center concrete median. Plaintiff also alleges negligence with respect to maintenance of the catch basins in the roadway which allegedly resulted in an accumulation of water on the roadway. Further plaintiffs claim that the lane markings on the roadway were deficient and contributed to his accident. (Dicola Aff, Ex. B). Plaintiff alleges that the City received prior written notice that the guiderail created a "vaulting condition", through receipt of unrelated notices of claim, however, the City contends that this allegation is neither pled nor viable.More than two years after the action against the City was commenced, plaintiffs brought a separate action against Trocom under Index Number 110599/06, on July 25, 2006, arising from Trocom's contract with the City, alleging that Trocom had installed guardrails on the portion of the roadway where his accident occurred, causing and creating a dangerous and unsafe condition on the roadway. (Affirmation of Eva J. Tompkins, Esq. dated November 24, 2015, Ex. C). Defendants served answers denying plaintiff's claims. (Tompkins Aff, Ex. B and D). The actions against the City defendants and Trocom were consolidated under Index Number 106847/04 by stipulation, so ordered by the Court on January 16, 2007. (Dicola Aff, Ex. E).On February 23, 2007, plaintiffs served a Verified Bill of Particulars against Trocom wherein they allege negligence in failing to paint appropriate lines on the roadway, in failing to place the guardrails in an appropriate place, in failing to place an appropriate guide rail at the site, in failing to follow design plans and drawings regarding the placement and installation of the guiderails and in failing to correct the plans, drawings and/or designs. (Tompkins Aff, Ex. E). During the pendency of this action, plaintiffs have served a total of seven (7) Verified Bills of Particulars. (Dicola Aff, Ex. F). Plaintiffs' first, second and third supplemental bill of particulars pertain to plaintiffs' alleged injuries. In Plaintiffs' fourth supplemental bill of particulars they allege that the City had actual and constructive notice of the susceptibility of the roadway to flood when it rains, deteriorated roadway markings and painted lines. In Plaintiffs' fifth supplemental verified bill of particulars they allege that the City received prior written notice of the "dangerous and hazardous condition of the guardrail" on account of the New York State Department of Transportation issuing fifteen engineering instructions.

In Plaintiffs' sixth supplemental bill of particulars, which was served on September 23, 2015 after note of issue was filed, Plaintiffs alleged that the City had actual and constructive notice that a "curb guide rail combination" at the turned down end of the subject guiderail created a vault hazard based upon the existence of DDC contract HWM 1149 and a chapter in "Highway Design Manual." The City contends that this specific allegation was raised by Plaintiffs for the first time in the sixth supplemental bill of particulars. Discovery in this action has ensued over a decade and has encompassed the exchange of numerous documents and conducting depositions of seventeen (17) witnesses, many of which continued over several days. The deposition transcripts of all pertinent witnesses have been provided to the Court in support of the Defendants' motions for Summary Judgment. (Dicola Aff, Ex. G, K-L; Tompkins Aff, Ex. L-W).On July 31, 2015 Plaintiffs certified that all discovery was complete and filed the note of issue. (Dicola Aff, Ex. H). On the same day, plaintiffs served a Supplemental Response to Defendants' Notice for Discovery and Inspection in which they alleged that the City received prior written notice of a "vault hazard posed by a strong post guide rail, a turned-down terminal end of a guiderail, as well as the hazard posted by the relative proximity of a curb and guide rail positioned behind the curb" based upon the receipt of four prior notices of claim, regarding prior motor vehicle accidents that the City contends are completely dissimilar to the case before the Court. The Defendants' motions for summary judgment were filed within 120 days after the note of issue had been filed and are properly before the Court.¹ THE ACCIDENTThe accident occurred on October 27, 2003 at 11:50 p.m. According to his testimony, Plaintiff Yannick Benjamin had just completed his 3:30 p.m. to approximately 11:00 p.m. shift as a server at the Ritz Carlton Hotel in Manhattan, when he headed over to Rue 57, located at 57th Street for a get together to celebrate the promotion of his co-worker.² During the celebration plaintiff claims to have had a half glass of champagne. It was raining heavily that evening and plaintiff testified that his clothes were wet from walking from the bar to the parking lot where his car was parked. (Tompkin Aff. Ex. N at 302-304). Plaintiff began driving home via the northbound lane of the Henry Hudson Parkway, a route he was very familiar with having driven it at least 100 to 150 times prior to the accident. (Dicola Aff. Ex. L at 9:23-11:11). Plaintiff explained that during the year and a half he had worked at the Ritz Carlton, he drove himself to and from work four times a week, including the night of the accident. (Id. at 12:17-14:4, Ex. K at 29:6-9). Plaintiff never experienced any problems while driving this route, including when it rained; he never had a problem seeing the road and never saw an accident at the location where his accident occurred. (Id. at Ex. K. at 327:12-328:5).

1 In addition to this action, plaintiff also brought an action against the State of New York in the Court of Claims, Claim No. 109350, which is alleged, upon information and belief, to be pending before the Court.

2 Plaintiff Yannick Benjamin's GML §50-h hearing was held on March 2, 2004 and he appeared for examinations before trial over several dates, on July 21, 2006, September 6, 2006, April 13, 2007 and April 30, 2007. (Dicola Aff, Ex. J, K, and L, Tompkin Aff, Ex. L and N).

Immediately before the accident, the plaintiff was travelling in the middle lane of the three-lane highway no more than 40 miles per hour and had just passed the 96th Street exit. (Dicola Aff, Ex. K at 346: 16-20). According to plaintiff's testimony, just before the accident, he felt a "gravitational pull" which "took him by surprise" and he crossed into the left lane and struck the concrete divider separating the north and southbound lanes of traffic. (Id. at 336::5-337:9). After the initial impact with the concrete divider, plaintiff's vehicle moved diagonally away from the concrete divider towards the right side of the road and the front left side of his vehicle made a second impact with the metal guardrail on the right side of the road, flipped over before landing on its right side and colliding with a tree. (Dicola Aff, Ex. J at 13:5, 15:12-14). Plaintiff did not see the guardrail before making contact with it; he felt the car elevate and then his car went into a "360" roll when he felt his head hit the ceiling while in the air before the car stopped landing on all four wheels. (Dicola Aff, Ex. K at 348: 7-22, 348:23-350:18, 350:15-351:5, 352:13-20).Plaintiff claims he was wearing his seatbelt and that the air bags in his vehicle did not deploy at the time of the accident. (Dicola Aff, Ex. J at 16: 16-24). There were no other vehicles on the road in either the left or right lane at the time of the initial contact with the concrete divider and plaintiff did not know if there were any witnesses to the accident. (Id. at 12:23-13:4; 18:21-23). After the accident several people rushed over to help plaintiff and an ambulance was called which took him to the hospital. (Tompkins Aff, Ex. L 18; Ex. N at 360-362). TROCOM'S CONTRACT WITH THE CITY - HWM1149 In support of its motion for summary judgment Trocom relies on its contract entered into with the City more than five years prior to plaintiff's accident. Specifically, in May 1998, after bidding for the job, the City awarded Trocom contract HWM1149 for the installation of new guardrails, the replacement of curbs and the removal of turn outs along the Henry Hudson Parkway in Manhattan, between West 79th and West 125th Streets. (Tompkins Aff, Ex. J and K). According to the affidavit of Osama Khalil, Regional Claims Engineer, New York State Department of Transportation, submitted in support of the City's motion, the work performed under contract HWM1149 continued until at least September 1999 and was not a reconstruction contract. (Dicola Aff, Ex. W). Kalpesh Patel, an engineer in charge of construction for New York City's Department of Design and Construction ("DDC") testified on behalf of the City that he worked on contract HWM1149, which he described as a project intended to replace damaged northbound, southbound and center median guardrails on the Henry Hudson Parkway from 79th Street to 125th Street. (Id. at Ex. X 15:4-12). While Mr. Patel had no personal knowledge of plaintiff's accident, nor was he involved in the planning or requirements for the bidding of the contract, he explained that certain areas were excluded from the contract, including the area between West 94th to 98th Streets and he was not aware of any work done to the guiderails at the northbound Henry Hudson Parkway and 96th Street. (Id. at 53:25-54:4; 19:17-20.6).

How Sheen Pau, a director with DDC, testified on behalf of the City and explained that she prepared the designs for HWM1149 based on the prepared survey drawings and the scope of work provided by the Department of Transportation ("DOT"), under the supervision of Mohsen Argelahi, engineer-in-charge of in-house consultant design. (Dicola Aff, Ex. Y 26:23-28:6; 29:8-19). Ms. Pau explained, at length the review process undertaken by DDC in preparing the plans for the work and the estimate for the bidding documents. Ms. Pau explained the state and federal standards that were consulted in designing the contract. (Tompkins Aff, Ex. P at 38-41). Specifically, a portion of the guidelines prepared by the American Association of State Highway and Transportation Officials ("AASHTO") which related to the removal of turnouts or rest areas, was consulted as well as the Manual on Uniform Traffic Control Devices ("MUTCD") consulted for maintaining traffic during construction. (Id.). No other federal, state, city or local rules were consulted in designing HWM1149. (Id.). Ms. Pau did identify specific New York State DOT standard details that were referenced in designing the guiderails project and explained that the specific angle of the turndown of the anchor unit of the guiderail was detailed in the DOT specifications that she followed in her plans, specifications and drawings. (Id. at 84). Ms. Pau testified that since this was purely a replacement contract, the ultimate decision as to which units were to be replaced lay with the DOT and not the DDC, as the DDC merely followed the DOT scope of work with respect to this contract. (Id. at 88, 92, 94, 97, 113, 124-126).

Ms. Pau was also questioned about the specific area where the accident occurred and was asked whether the guiderail in the vicinity of the accident was replaced. Ms. Pau also discussed the survey and the stations to help determine whether the guiderails in the vicinity of plaintiff's accident were replaced under the contract. She testified that the only guiderail replaced in the vicinity of the accident, consisted of 379 feet of guiderail replaced north of the 96th Street exit on the shoulder of the road. (Id. at 51-55). Ms. Pau also testified that she never learned of any errors or issues that arose with respect to the completion of HWM1149. (Id. at 105-106, 123). Finally, Ms. Pau testified that she was not sure whether a traffic study was initiated pursuant to HWM1149. (Id. at 53). She explained the type of situations that would warrant the initiation of a traffic study analysis, such as "installing a signal at a particular intersection, if we are doing major curb realignments, if the community says there is a problem at a particular location". (Id. at 74) Ms. Pau went on to explain that HMW1149 was a guiderail replacement contract and she testified that traffic studies are typically not done for "replacement in kind" projects because at the completion of the contract "it is the same existing condition, no change". (Id. at 75).

Yun Poy Ng, Associate Commissioner in charge of infrastructure design for DDC testified on behalf of the City as he was familiar with HWM1149 as his team was responsible for designing the project. (Dicola Aff, Ex. Z at 8:7-8:20). Mr. Ng explained generally how projects are commenced, indicating that DOT sends a scope of work with an approximate budget to DDC and asks DDC to put together and bid a contract to design the project. (Id. at 8:21-9:19). With respect to design standards, Mr. Ng described the "AASHTO standard" as a "national document . . . recommendation" and as such, the City would follow relevant "New York State DOT design guidelines" and New York City standards. (Id. at 11:21-12:6; 32:2-12' 35"9-36"15). He went on to emphasize that New York State DOT did not follow AASHTO standards with regard to designing guiderails. (Id. at 72:22-74:11). Mr. Ng explained that the State specifications were followed for the installation of the guiderails and he identified the same standards referenced by Ms. Pau. (Id. at 42:12-43:12; 52:2-54:3; 65:10-68:12). Similar to Ms. Pau's testimony, Mr. Ng testified that HWM1149 was a limited replacement contract and not a reconstruction project explaining; "We do not go look for substandard features on a maintenance project to replace. That is not the standard practice." (Id. at 100:24-102:9).Rather, the standard to follow with a maintenance contract, "is replacement and kind of whatever is damaged, whatever is broken, or whatever is missing that's required. That's the only thing you touch. You do not replace everything. You do not do a study to look at what else you should be doing because that's a whole different type of contract or design. . .. We did not analyze the facility as we would have done if this was a reconstruction project. Again the goal of this project was to do those three things, replace, repair or maintain the damage of missing guide rails and the curbs also." (Id. at 76:5-78:16).In response to questions concerning impact attenuators or turn down ends, Mr. Ng testified that the turn down ends along the Henry Hudson Parkway were not relevant because "in the inspection that we performed during design there was no evidence that there was any need to replace or do anything with the turned-down guiderail ends." (Id. at 90:6-13). During Mr. Ng's deposition there was extensive questioning by plaintiff's counsel concerning the AASHTO standards relative to the use of turn-down ends and HWM1149. Mr. Ng's testimony was unequivocal; "You're asking me a question that has nothing to do with our project . . . I did this project based on a very specific scope of work. My project is not to study what's out there is safe or unsafe. My scope of this project, once again, is to replace damage[d] and missing guide rail." (Id. at 150:13-152:16). Mr. Ng, like Ms. Pau, confirmed that the contract spec book and drawings do not show that any guiderail work was even done in the vicinity of plaintiff's accident. In fact, even plaintiff concedes in his voluminous motion papers that "the particular turned-down end involved in plaintiff's accident was not part of the scope of work performed under HWM1149, the curb at the bull nose within the gore area was replaced". (Gallina Aff, paragraph 46, Ex. G).Stuart Schrager worked for the City in the Department of Design and Construction as Director of Manhattan Construction from approximately 1970 until 2002. He was deposed as a non-party witness by plaintiff relative to an unsigned letter dated October 21, 1998, from Mr. Schrager to DOT on the subject of "Installation of New Guiderails along Henry Hudson Parkway, Contract No. HWM1149, 'Center Median Guiderails'. (Id. Ex. H). When Mr. Schrager assumed the role of Director, he inherited approximately 10 to 12 construction projects and supervised new construction projects as well but had no role in design activities. (Dicola Aff, Ex. G at 21:19-22:8; 21:5-13). He recalled HWM1149 and remembered it as a project to replace damaged guardrails along the Henry Hudson Parkway. (Id. at 22:17-24:22, 26:5-13). He oversaw the construction of this project between the DDC, which was hired as a consultant agency and the contractor Trocom. (Id. at 29:5-11, 30:7-12). Mr. Schrager testified that he had no knowledge of what standards the design division followed and was not sure what specifications were used in connection with this project. (Id. at 50:7-16).

Mr. Schrager was shown the October 21, 1998 letter but did not know if he wrote the letter himself; the letter was written to Margaret Forgione, who he described as the person in charge of the Maintenance Division for the Henry Hudson Parkway. (Id. at 60:2-13, 62:5-63:2). He described the letter as "telling her that we were going to have to put the guardrails in a different location than was on the contract drawings." (Id. at 59:10-16). He explained that the letter actually refers to the center median of the northbound Henry Hudson Parkway and does not make reference to the guardrail or turn-down end involved in the plaintiff's accident. (Id. at 95:2-98:8). In response to extensive questioning by plaintiff's counsel, Mr. Schrager repeated that the letter only refers to the guiderails at the center median; "The letter refers only to guardrails that were being installed at the center median of the northbound Henry Hudson Parkway . . . the same locations that were specified, in the contract to be replaced." (Id. at 101:23-102:19). Plaintiff's counsel also questioned Mr. Schrager extensively about the relevant State and Federal guidelines that are referred to in the letter and specifically asked him whether the letter is "an example of the DDC, bringing to the attention of its client, the Department of Transportation, to Margaret Forgione, that something is not in compliance with State or Federal requirements" to which he responded "No". (Id. at 84:7-85:17).Mr. Schrager's testimony established that there was no aspect of the installation or replacement of guardrails that was not in compliance, or had to be brought to the attention of DOT or any other agency or contractor involved in the project. (Id. at 81:20-83:5). In response to follow up questioning by plaintiff's counsel, Mr. Schrager explained; "I will try again, to the best of my knowledge, the only reason that this letter should have been written was to notify arterial maintenance that were [sic] not going to put the guard rails back in designated locations that were on the contract, because we could not put them there. I don't believe that I would have signed a letter making the statement that these guard rails were not in compliance with someone else's specifications or government requirements, since I do not have knowledge of those government regulations or requirements." (Id.). Mr. Schrager's testimony made clear that in his capacity supervising the construction operation he believed that the guardrails were replaced properly in accordance with the specifications contained in the contract and the only reason they could not be replaced in the specific contract locations was due to interference from underground utilities. (Id. at 55:22-56:5; 59:12; 70:10; 81:20-83:5). Despite several attempts by plaintiff's counsel throughout Mr. Schrager's deposition to have him identify some aspect of the project that was not in conformity with state or federal standards, Mr. Schrager was steadfast in his responses and without hesitation testified that he believed the guardrails were replaced properly and in accordance with the specifications contained in the contract. (Id.) Moreover, Mr. Schrager could not identify any risks or hazards associated with the anchor unit or turn-down end at the location of plaintiff's accident, or that they posed any particular risk of "vaulting" a vehicle that came into contact. (Id. at 87:8-90:3, 91:16-92:7).Manhattan Borough Commissioner for the New York City Department of Transportation, Margaret Forgione testified on behalf of the City. From 1997 to 2002, Margaret Forgione was the Director of Arterial Maintenance and supervised the operation of the highway workers who maintained the City's highways. (Dicola Aff., Ex. G at 7:19-8:9). In her capacity as director of arterial maintenance, the Henry Hudson Parkway was one of the highways Ms. Forgione was responsible for. (Id. at 11:17-21). Ms. Forgione was familiar with HWM1149 and she explained that DOT was the client of the DDC. (Id. at 53:2-24). DDC would be responsible for designing HWM1149 and all other capital projects; she described the project similarly as one intended "to perform guide rail repairs on the Henry Hudson, specifically pertaining to the medians." (Id. at 12:17-22; 53:2-24). In response to questions by plaintiff's counsel concerning the standard and practice of DOT working with DDC to ensure that any design prepared by DDC conformed to current design standards, Ms. Forgione's testimony made clear DOT "would not have given any guidance to DDC on that at all. . . because they are the design experts. We would leave it up to them to determine the appropriate design." (Id. at 57:23; 70:8-71;10). Ms. Forgione was also questioned about the Schrager letter dated October 21, 1998 addressed to her and she reiterated that the letter referred to the installation of center median guiderails along the Henry Hudson Parkway. (Id. at 25:20-25; 35:10-36:6). She testified that based on the letter, she believed that DDC placed the guiderails in the center median back in its previous location because there was limited physical space at the median. (Id. at 36:7-24). She explained that since she was not an engineer, she was not familiar with the federal and state guidelines referred to in the letter. (Id. at 37:7-38; 17, 39:14-18).

Livio Thomas Ronga testified as a non-party witness; he worked as a civil engineer for Urbitran Consulting from 1952 to 2005 when he retired. In 1998 he worked on contract HWM1149 for Urbitran as the resident engineer. (Dicola Aff, Ex. AA at 6:24-7:13; 9:18-10:17). He explained his role in HWM1149; he first met with DDC to review the contract specifications although he had no role in choosing the specifications as they were set by DDC, he then met with the contractors and established a start date for the work. (Id. at 11:11-20; 11:21-12-6).Once the start date was set, a site meeting was held to verify the existing conditions at the job site. (Id. at 13:11-14:7). Those present at this site inspection were Urbitran's engineer Sam Fahami, Kalpesh Patel as representative of the City, Anthony Santoro as representative of Trocom and Mr. Ronga. (Id. at 14:13-15:19). Mr. Ronga did not return to the site until the project had started; he described his responsibility as follows; "[t]o oversee the whole operation, make sure the job was done according to the drawing specifications." (Id. at 24:6-11). Mr. Ronga's testimony, like the prior witnesses, confirms that the DDC determined which guiderails were to be replaced or removed when it established the design specifications and contract drawings. (Id. at 17:11-18:5; 47:18-48:4). Mr. Ronga's testimony also reiterated that HWM1149 was not a wholesale reconstruction project but rather a targeted project to replace certain damaged guiderails; not all northbound guiderails were replaced, only the median guiderails were replaced, not the guiderails on both sides of the road. (Id. at 40:25-43:10).Similarly, Mr. Ronga's testimony made clear that the City's plans were to be explicitly followed by the contractor Trocom, without deviation. (Id. at 28:17-24). Mr. Ronga was responsible for inspecting Trocom's work to ensure that it conformed to the City's plans and specifications, which he indicated "were very clear". (Id. at 29:2-6). Neither Mr. Ronga nor Trocom were responsible for determining which guiderails were to be replaced, what type of replacement guiderail should be used or how the guiderails should be installed. (Id. at 86). Mr. Ronga testified that he could not recall any complaints being made about Trocom's work or its compliance with the City's specifications and drawings, nor could he recall any complaints received by the City about the installation and replacement of the specified guiderails. (Id. at 86:15; 87:9).Anthony Santoro is a vice president for Trocom and testified that he oversees all daily operations for Trocom, which is a general contractor providing civil construction and heavy construction services for municipal clients; New York City is its most common municipal client. (Dicola Aff, Ex. G at 7:7-20;9:22-11:6; 12:6-13). Mr. Santoro was closely involved with HWM1149 on behalf of Trocom, having prepared the initial bid for the work and having been present at the work site where the work was to be performed. (Id. at 14:21-23). Echoing the testimony of Mr. Ronga and Mr. Patel, Mr. Santoro described the scope of the work as limited to "the replacement of sections of guardrail work in the center median of the northbound and southbound section of the Henry Hudson Parkway between 79th Street and 125th Street, . . . but our contract was limited to specific spots designated by the engineer to be rehabilitated." (Id. at 16:8-15). Mr. Santoro testified that the drawings and schedule as to which guardrails were to be replaced were prepared by DDC and were thereafter made part of the contract and provided to Trocom by the City; it is undisputed that Trocom had no input whatsoever with designing or drawing up the contract; the locations for guardrail replacements was pre-determined by DDC. (Id. at 26:11-27:3; 31:22-33:7). Mr. Santoro emphasized that at all times during Trocom's work on HWM1149, the contract specifications were strictly followed and were only deviated from if specifically directed to do so by the City. (Id. at 54-55; 26; 28-29).As the general contractor hired by the City, Trocom's responsibility was simply to "build a project pursuant to the contract documents." (Id. at 92:12-93:4). Trocom had no responsibility other than to follow the contract documents; "[t]he contract speaks for itself. It's specific in terms of work to be done. It wasn't a rehabilitation of the entire highway. It was selective portions. That's it." (Id. at 93:6-13; 70:22-71:9). At the conclusion of Trocom's work, Mr. Ronga did a field survey to ensure that Trocom's work had been completed in accordance with the contract; as such, Trocom had no reason to undertake an independent evaluation of the work that its subcontractor had performed at the site. (Id. at 88). Mr. Santoro had no knowledge of whether the guardrail was replaced on the Henry Hudson Parkway northbound in the vicinity of 96th Street. (Id. at 86:25-87:6; 100:2-101:12). Mr. Santoro explained that Trocom had contractually guaranteed its work under HWM1149 for a period of 12 or 18 months and that time period had expired in 2000, with no claim for defective work ever being made. (Id. at 36-37).STANDARD OF REVIEW ON A MOTION FOR SUMMARY JUDGMENTWhen deciding a motion for summary judgment, the Court's role is solely to determine if there are any triable issues of fact, not to determine the merits of any such issues. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 NYS2d 316 (1985). The Court must view the evidence in the light most favorable to the nonmoving party, and must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. Sosa v. 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 (1st Dept. 2012). On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). A failure to make such a showing, requires denial of the motion. See, Smalls v. AJI Indus., Inc., 10 NY3d 733, 735, 883 N.E.2d 350, 853 NYS2d 526 (2008).A party opposing a motion for summary judgment may not rely upon conclusory allegations, but must present evidentiary facts sufficient to raise a triable issue of fact. Mallad Construction Corp. v. County Federal Savings & Loan Assoc.,32 N.Y.2d285,290 (1973); Tobron OfÍìce Furniture Corn. v Kine World Productions, 161 AD2d 355,356 (lst Dept. 1990) (the opponent of a motion for summary judgment must assemble, lay bare and reveal his proofs; merely setting forth factual or legal conclusions is not sufficient); Polanco v. City of New 244 AD2d 322 (2d Dept. 1997) ("a shadowy semblance of an issue or bald conclusory allegations, even if believable, are insufficient to defeat a motion for summary judgment"). The opposing party has the burden of producing admissible evidence demonstrating the existence of triable and material issues of fact on which its claim rests. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). As noted above, the court's function on these motions is limited to "issue finding" not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]). The First Department has observed that "timidity in exercising the power [to grant summary judgment] in favor of a legitimate claim and against an unmerited one, not only defeats the ends of justice in a specific case, but contributes to calendar congestion which, in turn, denies to other suitors their rights to prompt determination of their litigation." Disabato v. Soffes, 9 AD2d 297,299 (1st Dept. 1959). As the Court of Appeals has recognized, because summary judgment avoids needless litigation costs and delay, "[w]here appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York state trial courts." Brill v. City of New York, 2 NY3d 648, 651 (2004).Here, moving defendants have established and plaintiff has conceded that the accident occurred at a location where moving defendants did not perform any work pursuant to HWM1149. The particular turned-down end of the guiderail involved in plaintiff's accident was simply not part of the scope of work to be performed under HWM1149. Several witnesses confirmed this crucial undisputed fact; notably, Mr. Ng, Associate Commissioner in charge of infrastructure design for DDC, testified that the turned-down ends along the Henry Hudson Parkway were not relevant because "in the inspection that we performed during design, there was no evidence that there was any need to replace or do anything with the turned-down guiderail ends." (Dicola Aff, Ex. Z at 90:6-13).

As set forth in more detail below, the record before the Court firmly establishes the following undisputed facts that are fatal to plaintiff's claims: (1) The guardrail involved in plaintiff's accident was not part of the scope of work performed under HWM1149; (2) The guardrail involved in plaintiff's accident was not defective or damaged; (3) The guardrail referred to in Mr. Schrager's October 21, 1998 letter, which plaintiff presents as the "smoking gun" in this case, does NOT refer to the guardrail involved in plaintiff's accident, nor does it establish that the City had notice of a dangerous condition, (Gallina Aff, Ex. H); and (4) Trocom had completed its work under HWM1149 four years prior to plaintiff's accident, with no claim of defective work ever being made. (Tompkin Aff, Ex. Q at pp. 35-37). In the face of these undisputed facts, plaintiff has simply failed to produce evidence demonstrating the existence of triable and material issues of fact, requiring a trial of this action. Zuckerman v. City of New York, 49 NY2d at 562.The City has demonstrated that it did not have prior written notice of faded roadway markings at or near the accident location nor did it have notice of any flooding condition caused by catch basins near the accident location. Moreover, there is no proof that a substantially similar accident history existed prior to plaintiff's accident that would have required the City to conduct a traffic study and finally, based on this record, the City did not have a duty to upgrade the guardrails on the Henry Hudson Parkway.

Absent an accident history that put the City on notice that there was an issue at a particular location, the City was under no obligation to upgrade any portion of the Henry Hudson Parkway to insure compliance with newly enacted and updated Federal and State standards and regulations. Simply stated, plaintiff has failed to meet his burden to demonstrate that this unfortunate accident in which plaintiff sustained serious, lifelong injuries, was the result of actions or inaction by the moving defendants. The issues presented are issues of law for the Court to decide. Plaintiff has failed demonstrate any triable issues of fact, despite a decade of discovery that involved the exchange of voluminous documentary evidence and testimony from seventeen (17) witnesses. For the reasons that follow, the Court finds that moving defendants have met their burden demonstrating that they are entitled to summary judgment and dismissal of all claims and cross-claims. Accordingly, moving defendants' motions are granted and plaintiffs' complaint is dismissed.

TROCOM DID NOT OWE PLAINTIFF A DUTY OF CARE NOR DID IT CREATE AN UNREASONABLE RISK OF HARM TO PLAINTIFF.

To establish a prima facie claim of negligence, a plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach thereof; and (3) injury proximately resulting therefrom. Solomon v. City of New York, 66 NY2d 1026, 489 NE2d 1294, 499 NYS2d 392 (1985). The existence and scope of a duty owed presents a question of law for the court to decide. Espinal v. Melville Snow Contrs., 98 NY2d 136, 773 NE2d 485, 746 NYS2d 120 (2002), citing, Palka v. Servicemaster Management Services Corp., 83 NY2d 579 (1994). Here, resolution of Trocom's motion requires the Court to first determine whether any such duty ran from Trocom to plaintiff, given that Trocom's contract was with the City and not plaintiff. Ordinarily, a duty of care to a third party does not arise from a contractual obligation between two other parties. Espinal v. Melville Snow Contrs., 98 NY2d at 138-139. A contracting party, however, may be liable in tort to a third party, if it creates an unreasonable risk of harm to others or increases that risk while discharging its contractual obligation. Church v. Callanan Indus., Inc., 99 NY2d 104, 782 NE2d 50, 752 NYS2d 254 (2002).

New York cases have thus far identified three sets of circumstances, as exceptions to the general rule, in which a duty of care to non-contracting third parties may arise out of a contractual obligation or the performance thereof. Church v. Callanan Indus., Inc., 752 NYS2d at 256. In such cases, the promisor is subject to tort liability for failing to exercise due care in the execution of the contract. The first circumstance is when the contracting party creates or exacerbates a harmful condition; the second is when the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and the third circumstance is when the contracting party completely assumes another's duty to maintain the premises in a safe condition. Id. at 257. See also, Espinal, 98 NY2d at141-142. Here, plaintiff does not contend that the last two exceptions apply. Rather, plaintiff argues that Trocom created or increased an unreasonable risk of harm to third parties that caused the plaintiff's injuries.

Specifically, plaintiff alleges that Trocom was negligent in failing to place an appropriate guide rail at the site, in failing to follow design plans and drawings regarding the placement and installation of the guiderailes and in failing to correct the plans, drawings and/or designs. (Tompkins Aff, Ex. E). Plaintiff also alleges that Trocom had installed guardrails on the portion of the roadway where his accident occurred, causing and creating a dangerous and unsafe condition on the roadway. (Affirmation of Eva J. Tompkins, Esq. dated November 24, 2015, Ex. C).

Trocom argues that plaintiff cannot sustain his negligence claims against it because plaintiff simply cannot prove that Trocom breached any duty owed to him. The record before the Court demonstrates that Trocom's work on the project was exclusively dictated by the terms of HWM1149 which was prepared by the City and with which the contract required strict compliance, wherein Trocom had no discretion to change or deviate from the contract specifications. Moreover, and most importantly, the particular turned-down end involved in plaintiff's accident was not part of the scope of work to be performed under HWM1149. After reviewing the voluminous testimony presented in support of Trocom's motion, the Court must agree with Trocom and finds plaintiff's contentions to be without merit. As such the claims are insufficient to defeat Trocom's request for summary judgment.

Based on the testimony of Darryl Lemon, Bhisom Geer, Kalpesh Patel, How Sheen Pau, Kenneth Stigner, and the documentary evidence, including HWM1149, it has been conclusively established that the guardrail turned-down end at the north bound Henry Hudson Parkway in the vicinity of 96th Street, was not to be replaced by Trocom as it was simply not within the scope of HWM1149. That area was excluded from the terms of the contract. In the face of this overwhelming evidence before the Court, even plaintiff concedes that "the particular turned-down end involved in plaintiff's accident was not part of the scope of work performed under HWM1149". (Plaintiff's Affirmation in Opposition, page 15).³

3 The Court notes that Ms. Pau testified that the only guiderail replaced in the vicinity of plaintiff's accident, consisted of 379 feet of guiderail replaced north of the 96th Street exit. (Dicola Aff, Ex. Y at 51:23-54:12. Despite plaintiff's attempts to downplay his concession that the particular turned-down end involved in the accident was not part of the scope of work under HWM1149, Ms. Pau's testimony establishes that the guiderail referenced in her testimony, was not encompassed within the scope of work to be performed under HWM1149.

Plaintiff's attempts to support his theory of liability against Trocom, claiming that it created or increased an unreasonable risk of harm to third parties or launched an instrument of force or harm that caused plaintiff's injuries, are insufficient as the record confirms that Trocom did not actually perform any work at the location of plaintiff's accident, nor was it contracted to replace, remove, repair or install anything in the vicinity of plaintiff's accident. Here, plaintiff's accident occurred more than four years after Trocom's work was completed and accepted by the City; Trocom did not introduce an additional structure, instrument or obstacle in plaintiff's path that was not there before Trocom was engaged by the City to perform work under HWM1149. (cf Petito v. City of New York, 95 AD3d 1095, 944 NYS2d 300 (2d Dept. 2012); Schosek v. Amherst Paving, Inc., 11 NY3d 882, 873 NYS2d 256, 901 NE2D 749 (2008); English v. City of Albany, 235 AD2d 977, 652 NYS2d 873 (3rd Dept. 1997); Cornell v. 360 W. 51st St. Realty, LLC, 51 AD3d 469, 857 NYS2d124 (1st Dept. 2008).

Several witnesses testified that HWM1149 was not a reconstruction contract but rather a targeted repair and replace contract, wherein Trocom was engaged to replace the barriers "in kind" with the same type of barriers that were there before and in the same location, pursuant to the City's specifications and drawings and pursuant to the instruction of the City's engineers. (Tompkin Aff, Ex. P, pp. 74-75; 87-88; 124-126). Despite plaintiff's attempt to create an issue of fact to defeat Trocom's motion for summary judgment, there is simply no evidence that Trocom's performance of its contractual duty to replace other guardrails that were not located at the vicinity of plaintiff's accidents created or increased the risk that plaintiff's car would veer from the roadway, beyond the risk which existed before Trocom was engaged by the City to perform its work under HWM1149.Moreover, unlike the contractor in Petito v. City, relied on by plaintiff to demonstrate Trocom's liability, Trocom's work did not deviate from the plans and specifications set forth in HWM1149; Trocom's work was performed in accordance with the terms of the contract and in accordance with the directives of the City's project engineers and inspectors. Nor does plaintiff's reliance on Schosek v. Amherst Paving, Inc., support his claim that Trocom launched a force or instrument of harm that caused injury to plaintiff. In Schosek, the construction was ongoing at the time of plaintiff's accident and a 4.5-inch height differential was left by the contractor between the paved surface of the roadway and the gravel shoulder. Id. at 258.Here, plaintiff's accident occurred long after Trocom's post contract work guarantee had expired and unlike the contractor in Schosek, Trocom did not introduce an additional structure, instrument or obstacle in plaintiff's path that was not there before the work was performed. As the voluminous deposition testimony established, Trocom merely replaced the barriers "in kind" with the same type of barriers that were there before the accident and in the same location. There is no evidence before the Court that Trocom negligently installed the guardrails. The evidence and testimony submitted in support of Trocom's motion, establishes that Trocom installed the guardrails pursuant to the specifications set forth in HWM1149 and even plaintiff has conceded that the particular turned-down end involved in plaintiff's accident was not part of the scope of work to be performed pursuant to HWM1149.Plaintiff simply cannot establish temporal proximity between the work performed by Trocom pursuant to HWM1149 and his accident and therefore, like the Court found in Church v. Callanan Indus., Inc., supra, Trocom did not comprehensively contract to ensure the safety and adequacy of every guardrail on the Henry Hudson Parkway and as such, Trocom owed no cognizable duty to plaintiff under the circumstances of this case. Rather, Trocom assumed specific obligations to ensure that its work complied with the project specifications set forth by the City's engineers and outlined in the specific terms of HWM1149; Trocom did not introduce an additional force or instrument of harm in plaintiff's path that was not there before the work was performed, nor did it create or increase the risk encountered by plaintiff on the night of his accident. Unlike the fact patterns presented in the cases cited by plaintiff in opposition to Trocom's motion, here there is simply no temporal proximity between the work performed by Trocom and the injury sustained by plaintiff.

Plaintiff's suggestion that Trocom was under an obligation to recommend to the City that impact attenuators be installed at the site or that it had a duty to warn the City of the danger of having a curb within a one to ten-foot dimension in front of a guiderail, ignores the "Espinal precedential orbit" of case law reiterated by the Court in Church v. Callanan. 99 NY2d at 113. Here, by being awarded HWM1149, Trocom did not assume to undertake all of the City's safety related obligations with respect to maintenance of the roadways and guardrails installed along the Henry Hudson Parkway. According to the record before the Court, Trocom agreed only to replace guardrails along the roadway that the City identified as damaged, pursuant to the specifications drafted by the City's project engineers. Indeed, Mr. Santoro's deposition testimony was unequivocal when he described the scope of work under HWM1149 as limited to "the replacement of sections of guardrail work in the center median of the northbound and southbound section of the Henry Hudson Parkway between 79th Street and 125th Street, . . . but our contract was limited to specific spots designated by the engineer to be rehabilitated." (Dicola Aff, Ex. G at 16:8-15). It is undisputed that Trocom had no input whatsoever with designing or drawing up the contract; the locations for guardrail replacements was pre-determined by DDC. (Id. at 26:11-27:3).

Plaintiff's attempts to create material issues of fact with respect to Trocom's obligations by expanding and ignoring the specific terms of HWM1149, are misplaced; this Court cannot ignore the specific contractual framework which outlines Trocom's obligations herein. As the general contractor hired by the City, Trocom's responsibility was simply to "build a project pursuant to the contract documents." (Id. at 92:12-93:4). Trocom had no responsibility other than to follow the contract documents. Mr. Ronga's testimony made it clear that the City's plans were to be explicitly followed by Trocom without deviation. (Dicola Aff, Ex. AA at 28:17-24). HWM1149 was not a wholesale reconstruction project but rather a targeted project to replace certain damaged guiderails identified by the City. Trocom has demonstrated, prima facie, that it was not responsible for determining which guiderails were to be replaced, what type of replacement guiderail should be used or how the guiderails should be installed. (Id. at 86). Notably, as plaintiff has conceded, the particular turned-down end involved in plaintiff's accident was not part of the scope of work to be performed under HWM1149. There is simply no evidence that Trocom negligently performed its duties under HWM1149, nor is there any evidence that Trocom failed to adhere to the contract specifications.

In a final attempt to defeat Trocom's motion for summary judgment, plaintiff relies on several cases that stand for the proposition that a contractor is not absolved from liability even when the owner accepts the work as completed. (See, e.g., English v. City of Albany, 235 AD2d 977(3rd Dept. 1997); Brown v. Welsbach Corp., 301 NY 202, 93 NE2d 640 (1950); Murphy v. Omen Constr. Co., 242 AD2d 964, 966 (4th Dept. 1997). Plaintiff's reliance on this case law is again misplaced because Trocom was not retained by the City to replace the turned-down end of the guardrail that plaintiff claims caused his vehicle to vault thereby causing his injuries. As plaintiff has admitted, the particular turned-down end involved in plaintiff's accident was not part of the scope of work to be performed under HWM1149. Nor has plaintiff established that there was a defect in the guardrails actually installed by Trocom, nor that the methods utilized by Trocom or its subcontractor, were deficient or defective in some way. There is simply no evidence that Trocom negligently performed its duties under the contract at issue or that it failed to adhere to the specifications set forth in HWM1149.

Trocom has established its entitlement to summary judgment and plaintiff has not met his burden to present evidentiary facts sufficient to raise a triable issue of fact. Based on the record before the Court, there is no evidence that Trocom's performance of its contractual duty set forth in HWM1149 to replace certain damaged guardrails along the Henry Hudson Parkway as identified by the City, created or increased the risk that plaintiff's car would veer off the roadway, causing plaintiff to sustain injuries. Moreover, as Trocom had no discretion to make any changes to the contract plans and specifications, but rather, was required to strictly follow the drawings as included in the contract, it cannot be said that Trocom created any dangerous condition or launched an instrumentality of harm on its own accord.

Trocom simply followed the directives of the City; it replaced those guardrails it was directed to replace in accordance with the City's predetermined locations. Plaintiff was neither a party to the contract between DOT and Trocom, nor a third party beneficiary of said contract. Trocom owed the plaintiff no common law duty of care and as such, a negligence claim cannot be sustained against Trocom. Solomon v. City of New York, 66 NY2d 1026, 489 NE2d 1294, 499 NYS2d 392 (1985); Espinal v. Melville Snow Contrs., 98 NY2d 136, 773 NE2d 485, 746 NYS2d 120 (2002), citing, Palka v. Servicemaster Management Services Corp., 83 NY2d 579 (1994). As plaintiff has failed to demonstrate a material issue of fact as against Trocom, summary judgment is granted in favor of Trocom and all claims and cross claims alleged against Trocom are dismissed.

PLAINTIFF HAS FAILED TO PLEAD AND PROVE THAT THE CITY HAD NOTICE OF DEFECTIVE ROADWAY MARKINGS OR FLOODING ON THE HENRY HUDSON PARKWAY IN THE VICINITY OF THE ACCIDENT LOCATION.

The Administrative Code of the City of New York §7-201 is a statutory prerequisite to commencing an action against the City and the failure to comply with the statute bars any such claim against the City. Administrative Code §7-201 (c), provides in pertinent part; "No civil action shall be maintained against the city for . . . injury . . . sustained in consequence of any street or highway . . . unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation. . . and there was within fifteen days after the receipt of such notice to repair or remove the defect, . . . complained of, or the place otherwise made reasonably safe." (Emphasis added). Case law interpreting this section of the Administrative Code requires that plaintiff bear the burden of pleading and proving that the City had prior written notice of the alleged defective roadway condition and that the failure to do so requires dismissal of the complaint. See, e.g., Katz v. City of New York, 87 NY2d 241 (1995); Preister v. Madison Square Garden Corp., 646 NYS2d 702 (1st Dept. 1997); Laing v. City of New York, 71 NY2d 912 (1988); Mercer v. City of New York, 636 NYS2d 456, aff'd 88 NY2d 955 (1996); Curci v. City of New York, 209 AD2d 574 (2d Dept. 1994); Poirer v. City of Schenectady, 85 NY2d at 310, 313 (1995).

There are only two recognized exceptions to the statutory requirement of providing the City with prior written notice of the dangerous roadway condition: (1) That the locality created the defect or hazard through an affirmative act of negligence, or (2) Where a special use confers a special benefit upon the locality. See, Yardborough v. City of New York, 10 NY3d 726 (2008), citing Amabile v. City of Buffalo, 93 NY2d 471, 475-476 (1999); Oboler v. City of New York, 8 NY3d 888 (2007); Bielecki v. City of New York, 14 AD3d 301 (1st Dept. 2005). Plaintiff cannot demonstrate that either exception applies to the facts of this case, nor can plaintiff prove that the City received prior written notice of any complaints regarding faded roadway markings in the area of the accident for three years prior to, and up to and including, the date of the accident, October 27, 2003. (Dicola Aff, Ex. N).

In support of its motion for summary judgment, the City has submitted the affidavit of Kevin Harmon, who personally conducted a search for the pertinent electronic and paper records, for complaints concerning roadway markings on the Henry Hudson Parkway near the vicinity of plaintiff's accident. (Dicola Aff, Ex. N). His search encompassed a period of three years prior to and including the date of plaintiff's accident. As the affidavit demonstrates, his search revealed that no complaints were made or recorded in the City's databases. Moreover, plaintiff deposed three witnesses produced by the City on the issue of roadway markings who testified that the City retained a contractor, Denville Line Painting, to install lane lines and paint the "skip lines" lane markings on the Henry Hudson Parkway which work was done between August 10, 2001 and October 30, 2001, two years prior to the accident. (Dicola Aff, Ex. G at 65:6-9; Deposition of Edward Manglos at 14-15).

In order to impose liability on the City for the failure to paint or repaint the roadway markings complained of, plaintiff must establish that the City received prior written notice of the defect and plaintiff must plead compliance with §7-201 of the Administrative Code. Foley v. County of Suffolk, 80 AD3d 658 (2d Dept. 2011); Poirer, supra at 85 NY2d at 313. Although plaintiff's papers are replete with conclusive averments that the City had actual and constructive notice of faded paint lines along the Henry Hudson Parkway, plaintiff has not alleged that the City had prior written notice of the defective roadway markings and there is simply no evidence in the record to sustain such a claim. Indeed, the City has submitted proof that indicates a search conducted for complaints regarding roadway markings for the pertinent area for three years up to and including the date of the accident which revealed no complaints. Plaintiff has not sustained his burden in opposing summary judgment; not only has plaintiff failed to comply with the statutory prerequisite to plead and prove prior written notice of faded paint lines, the City has proven that it did not receive any complaints regarding allegedly defective fainted roadway markings in the vicinity of the accident. Poirer v. City of Schenectady, 85 NY2d at 310, 313 Therefore, plaintiff's claims against the City related to defective roadway markings are dismissed.Likewise, there is no evidence that the City had actual or constructive notice of "recurrent" flooding conditions near the accident site and plaintiff's notice of claim and complaint are devoid of any allegations that there was a recurrent flooding condition near or at the same location of plaintiff's accident. Rather, in his fourth supplemental bill of particulars plaintiff alleges that the City had actual and constructive notice of the "susceptibility of the roadway to flood when it rains". In order to hold the City liable for a defective flooding condition at the accident location, plaintiff must establish that the City either created the condition or had actual or constructive notice of it. Cappolla v. City of New York, 302 AD2d 547 (2d Dept. 2003); Cassidy v. City of New York, 121 AD3d 735 (2d Dept. 2014); Tappan Wire & Cable, Inc. v. County of Rockland, 7 AD3d 781 (2d Dept. 2004); Azizi v. Village of Croton-on-Hudson, 79 AD3d 953(2d Dept. 2010); Carbonaro v. Town of North Hempstead, 97 AD3d 624 (2d Dept. 2012). Absent such notice, the City cannot be held liable for the accident or plaintiff's injuries sustained therefrom.

In Cassidy v. City of New York, the plaintiff alleged that his vehicle hydroplaned on the Jackie Robinson Parkway due to an accumulation of water on the roadway. 121 AD3d at 735. The Second Department rejected the plaintiff's evidence that the City had received prior complaints of flooding at the accident site, since the City had established that there was no evidence of flooding at the exact location of plaintiff's accident. In reversing the trial court's denial of summary judgment in favor of the City, the Cassidy Court noted that the defendants established, prima facie, that the City neither created nor had actual or constructive notice of a flooding condition on the portion of Jackie Robinson Parkway where the plaintiff alleged that his accident occurred. Id. at 735. In finding that the plaintiff failed to sustain his burden in opposing the City's motion for summary judgment, the Court concluded that while plaintiff submitted evidence demonstrating that the City had previously received complaints of flooding near the intersection of Jackie Robinson Parkway and Myrtle Avenue, the plaintiff did not submit any evidence demonstrating that flooding at this intersection was related to flooding at the location of his accident. Id. at 736. Accordingly, the Court found the evidence insufficient to raise a triable issue of fact as to whether the City had constructive notice of a dangerous condition at the location of plaintiff's accident and dismissed the complaint insofar as asserted against the City. Id.

Similarly, here, there is no evidence that the City had actual notice of any flooding condition on or in the northbound lanes of the Henry Hudson Parkway at or near the exit ramp with 96th Street, the location of plaintiff's accident. The plaintiff does not plead nor does the evidence support that there was a recurrent flooding condition at the same location where plaintiff's accident occurred. Moreover, there is no evidence that the City had constructive notice of a flooding condition at or near the vicinity of plaintiff's accident. During the discovery phase of this action, plaintiff deposed Gregory Tolwinski, a District Supervisor for the New York City Department of Environmental Protection who explained that while there were civilian complaints of flooding that had been received by the City concerning the Henry Hudson Parkway, those complaints were not specific to the location of the plaintiff's accident. Mr. Tolwinski explained that the conditions were either expeditiously cleared, subsided on their own or were not confirmed as flooding conditions. (Dicola Aff, Ex. O at 42:18-44:24; 73:11-74:8). Additionally, Mr. Tolwinski testified that he had no knowledge of rainfall impacting the catch basins in the vicinity of 96th Street before the date of the accident, nor did he have knowledge of any "particular locations in Manhattan" that had a tendency to back-up or flood due to rainfall. (Id. at 37:19-38:7). He testified that the catch basins were cleaned each and every day of the year. (Id. at 45:23-46:8; 48:17-49:4).

In addition to Mr. Tolwinski's testimony, in support of its motion for summary judgment the City has prima facie established that any complaints concerning flooding at or near the accident location for three years up to and including the date of the accident revealed that any complaints received were readily investigated only to find that the condition complained of had resolved. The City also relies on the Local Climatological Data for Central Park compiled by the National Oceanic and Atmospheric Administration (NOAA), which indicates that the total amount of rainfall on October 27, 2003 was 1.88 inches, however, between the hours of 10:00 p.m. and midnight a total of 0.05 inches fell and in the hour between midnight and 1:00 a.m., only 0.04 inches of precipitation fell. Thus, the City argues that given the relatively minimal amount of rain that fell in the hours before and at the time of the accident, any contention that there was flooding is not supported by the credible evidence presented in the NOAA weather reports. Moreover, the City argues that even assuming arguendo that there was flooding that night, the law is clear, the mere occasional occurrence of flooding is insufficient to impose liability. Linden Towers Coop., Inc. v. City of New York, 272 AD2d 587 (2d Dept. 2000). The Court must agree.

In response to the City's evidence and in the face of well-established precedent which requires plaintiff to establish that the City either created the flooding condition or had actual or constructive notice of it, plaintiff distorts the record before the Court by mischaracterizing witness testimony and quoting testimony out of context. In addition, plaintiff relies on case law arising out of premises liability rather than the cases denoting the burden of proof in highway/roadway liability cases. Cases involving pedestrians slipping and falling in premises require a different standard of review and proof and are thus not controlling to the legal issues presented by this case with regard to whether the City can be held liable for a flooding condition that did not exist and for which there was no notice. To reiterate, in order to hold the City liable for a flooding condition, plaintiff must establish that the City either created the condition or had actual or constructive notice of it. Cappolla v. City of New York, 302 AD2d at 547. Absent such notice, the City cannot be held liable. As noted above, once the City meets its initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985], the burden shifts to the plaintiff to present evidentiary facts sufficient to raise a triable issue of fact. Tobron OfÍìce Furniture Corn. v Kine World Productions, 161 AD2d 355,356 (lst Dept. 1990).

Based on the evidence before the Court, the plaintiff has failed to rebut the City's prima facie entitlement to summary judgment. The City has demonstrated that it was not negligent in maintaining the catch basins in the vicinity of the accident; there were no complaints of flooding or accumulation of water on the night of the accident that would have required a work crew to inspect the location and there were no prior complaints of a reported problem with flooding The evidence firmly establishes that the City had neither actual nor constructive notice of flooding at the accident location and plaintiff has failed to sufficiently rebut this overwhelming evidence. Accordingly, the City is entitled to summary judgment on the claims related to flooding at the accident location.

THERE IS NO EVIDENCE THAT THE CITY HAD NOTICE OF A DANGEROUSCONDITION CONCERNING THE GUARDRAIL INVOLVED IN THE ACCIDENTAND PLAINTIFF HAS FAILED TO PROVE THAT THE CITY HAD A DUTY TOUPGRADE ITS GUARDRAIL DESIGN STANDARDS.Highway planning, design and maintenance are proprietary functions arising from a municipality's "proprietary duty to keep its roads and highways in a reasonably safe condition." Turturro v. City of New York, 28 NY3d 469 (2016), citing, Friedman v. State of New York, 67 NY2d 271, 283, 493 NE2d 893, 502 NYS2d 669 (1986). The City does not however, have a duty to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures. Friedman v. State of New York, 67 NY2d at 283. As the First Department has noted, "[a]ny public roadway, no matter how careful its design and construction, can be made safer and a municipality is not an insurer of the safety of its roadways. If the road was safe when built, the City is not required to rebuild the road absent proof that it subsequently became unsafe for use." Kang-Kim v. City of New York, 29 AD3d 57, 59 (1st Dept. 2006), citing Tomasi v. Town of Union, 46 NY2d 91, 97 (1978) and Hough v. State of New York, 203 AD2d 736, 739 (1994). Even plaintiff cites to case law holding that where the paved portion of the roadway is adequate, the municipality owes no duty to a motorist who leaves the roadway because "travel beyond those limits is neither contemplated or foreseeable." Tomasi v. Town of Union, 46 NY2d at 97.Here, in light of the evidence submitted by the City concerning the scope of work under HWM1149 and the fact that the guardrail involved in the plaintiff's accident was neither part of the scope of work, nor was it dangerous or defective, the burden is on the plaintiff to establish that the City "either had notice, or should have been put on notice that accidents of the same nature had previously occurred" and that they "were caused by the same or similar contributing factors which caused the instant accident." Kang-Kim v. City, 29 AD3d at 60-61. Absent proof of a dangerous condition, the City is "not required to upgrade any roadway to conform to new standards which evolved subsequent to the original construction." Merino v. New York City Transit Auth., 218 AD2d 451 (1st Dept. 1996), aff'd 89 NY2d 824 (1996). While plaintiff attempts to meet his burden and demonstrate that there were prior accidents that were substantially similar to his accident, in relevant details and circumstances, the proof before the Court simply does not demonstrate the existence of a dangerous condition that would have triggered the City's obligation to upgrade the roadway to conform to the standards noted by plaintiff and his experts. Here, the record evidence fails to show that the City had notice of any issues pertaining to the turned-down guardrail at issue and this lack of evidence is, as with the roadway markings and non-existent flooding, fatal to plaintiff's ability to sustain his claims against the City.

Despite plaintiff's attempt to create an issue of fact through his voluminous submissions in opposition to the City's motion, it is undisputed that the five-year accident history for the vicinity of the plaintiff's accident location yielded only two prior accidents in which "collision guardrail-end" is listed as the type of accident. Notably of the two accidents, only one accident actually took place in the same designated location, however, there are no other substantially similar details such that the notice requirement can be proven. Grcic v. City of New York, 139 AD2d 621 (2d Dept. 1988). Specifically, the prior accident occurred during clear weather, at dawn on a dry roadway. The relevant details are not similar to the conditions present during the plaintiff's accident which took place on a dark, but lighted roadway, on a rainy evening, on a wet roadway. While the Court is well aware that even one similar accident can satisfy the burden of placing the City on notice of a dangerous condition, the analysis turns on the details surrounding the accident and the proof required is of relevant conditions surrounding those prior accidents and whether they were substantially similar to those surrounding the subject accident. Kaplan v. City of New York, 10 AD2d 319 (1st Dept. 1960); Kang-Kim v. City, 29 AD3d at 60-61. (In order to sustain her burden of proof, plaintiff is required to prove that prior accidents of a similar nature were caused by the same or similar contributing factors which caused the instant accident.).

Given the obvious differences surrounding the prior accident at the location in question, plaintiff has not met his burden to demonstrate that the accident history triggered the City's obligations to make repairs to the roadway and the guardrail in question, to conform to the standards noted by plaintiff and his experts. Hyde v. County of Rensselaer, 51 NY2d 927, 929 (1980) ("It is well settled that proof of a prior accident, whether offered as proof of the existence of a dangerous condition or as proof of notice thereof, is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same."); Martin v. State of New York, 305 AD2d 784 (3rd Dept. 2003) (The court found that prior accidents in the same area of the subject accident did not give defendant notice of a dangerous condition where only one accident within a three-year period was substantially similar to the one considered here.).

Similarly, plaintiff's argument that the City owed a duty to plaintiff to upgrade the guardrails installed on the Henry Hudson Parkway because DDC was aware of a vault hazard as of the time it was designing HWM1149 with turned-down terminal end guide rails and a guide rail that was placed between 1 foot to 10 feet of each other, is belied by the record. Specifically, the Court has not found any support in the record for plaintiff's claim that the City "was aware of a vault hazard" and/or that the City was "oblivious" that the NYS Highway Design Standards had changed since 1984, the date the guardrails were initially installed. The Court has carefully reviewed the record evidence and has not found any testimony to support plaintiff's claim that the City ignored a vaulting condition in the location where plaintiff's accident occurred, namely, the turned-down end of the guiderail on the right hand or eastside of the northbound Henry Hudson Parkway near the West 96th Street exit ramp.

As previously discussed, plaintiff questioned Mr. Schrager extensively concerning the relevant State and Federal standards referenced in his October 21, 1998 letter. Despite several attempts by plaintiff's counsel throughout Mr. Schrager's deposition to have him identify some aspect of the project that was not in conformity with State or Federal standards, Mr. Schrager was steadfast in his responses and without hesitation testified that he believed the guardrails were replaced properly and in accordance with the specifications contained in the contract. (Id.) Moreover, Mr. Schrager could not identify any risks or hazards associated with the anchor unit or turn-down end at the location of plaintiff's accident, or that they posed any particular risk of "vaulting" a vehicle that came into contact. (Dicola Aff, Ex. G at 87:8-90:3, 91:16-92:7). Although plaintiff relies heavily on this letter to defeat summary judgment, the letter does not raise an issue of fact nor does it shed any light on the issues before the court.

Mr. Schrager unequivocally testified that the letter does NOT refer to the guardrail involved in plaintiff's accident. He explained that the only reason the guardrails could not be replaced in the specific contract locations was due to interference from underground utilities. (Dicola Aff, Ex. G at 55:22-56:5; 59:12; 70:10; 81:20-83:5). Similarly, Ms. Forgione explained that the letter indicates that the guardrails could not be replaced in the same location due to "limited physical space" at the site. (Id. at 36:7-24). Contrary to plaintiff's characterization that the letter is evidence that the City had notice of a dangerous vaulting condition created by the turned-down ends of the guiderail in question, the evidence demonstrates that the reason the letter was drafted was simply to confirm that the guardrails could not be replaced in the same location due to interference from underground utilities; it had nothing to do with identifying an alleged vaulting hazard.

Equally unconvincing is plaintiff's claim that the City had an obligation to replace or upgrade all existing guardrails on the Henry Hudson Parkway. Plaintiff has not set forth any legal authority to support his claim that a change in highway design standards, constitutes notice of a dangerous condition triggering a duty to conduct a comprehensive study as contemplated by Weiss v. Fote, 7 NY2d 579, 588 (1960) and its progeny. A review of the voluminous deposition testimony confirms that HWM1149 was not a significant reconstruction project or overhaul of all guardrails installed on the Henry Hudson Parkway. Rather, a total of nine witnesses produced by the City and Trocom, confirmed that HWM1149 was a limited replacement contract, not a wholesale reconstruction project. HWM1149 was intended to replace what was damaged "so you can't just design a new standard. You have to follow what's already there." (Dicola Aff, Ex. Z at 100.24-102:9). The record evidence confirms that HWM1149 had three goals, to replace, repair or maintain the damaged or missing guiderails and curbs. (Id. at 76:5-78:16).

Mr. Ng explained the relevant standard the City was to follow in this project. "We do not go look for substandard features on a maintenance project to replace. That is not the standard practice." (Id. at 100:24-102:9). Rather, the standard to follow with a maintenance contract, "is replacement and kind of whatever is damaged, whatever is broken, or whatever is missing that's required. That's the only thing you touch. You do not replace everything. You do not do a study to look at what else you should be doing because that's a whole different type of contract or design. . .. We did not analyze the facility as we would have done if this was a reconstruction project. (Id. at 76:5-78:16). Other witnesses echoed this testimony and confirmed that the scope of the project was limited to guiderail replacement. Ms. Pau testified that a traffic study was not undertaken prior to the project because it was a "replacement in kind" project and at the completion of the contract "it is the same existing condition, no change". (Tompkins Aff, Ex. P at 75).

With respect to the AASHTO standards which plaintiff claims banned the use of the type of turned-down end involved in the accident, the record evidence is clear that those standards were simply not relevant to this project. Mr. Ng testified that "the scope of work that we were given by DOT for this project is to replace the damaged and missing guiderails". Ms. Pau also testified about the relevant standards that were consulted in the design phase of HWM1149 and explained that since this was purely a replacement contract, and not a wholesale reconstruction project, the ultimate decision as to which units were to be replaced lay with DOT and not the DDC, as the DDC followed the DOT scope of work with respect to this contract. (Tompkins Aff, Ex. P at 88, 92, 94, 97, 113, 124-126). Although plaintiff characterizes this testimony as the City "passing the buck", that is simply not supported by the record or the case law that must be applied by the Court to determine this motion. The record confirms that the City did not have notice of a dangerous condition involving the guardrails intended to be replaced and repaired under HWM1149. As such, the case law makes clear that if there is no reason for the City to be on notice that the roadway is no longer reasonably safe for those obeying the rules of the road, the City cannot be held liable for accidents that occur on that roadway. Kang-Kim v. City of New York, 29 AD3d 57 (1st Dept. 2006). It is axiomatic that the City is not required to rebuild any portion of the roadway absent proof that it became unsafe. Hough v. State of New York, 203 AD2d 736, 739 (1994).

Weiss v. Fote, 7 NY2d 579, 588 (1960), is instructive with regard to determining whether plaintiff has raised a triable issue of fact with regard to the City's obligation to upgrade the turned-down end involved in the accident. The Court reasoned: "In the area of highway safety . . . courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public." Courts have long held that "compliance with design standards adopted after the construction of a highway is not required unless the municipality undertakes significant repair or reconstruction that would provide an opportunity for compliance with the new standards." Fan Guan v. State of New York, 55 AD3d 782 (2d Dept. 2008) citing Guzov v. State of New York, 48 AD3d 751 (2nd Dept. 2008). Moreover, the case law is clear that a municipality "is not required to undertake expensive reconstruction of highways simply because the design standards for highways have been upgraded since the time of the original construction." Fan Guan, 55 AD3d at 783.

HWM1149 was not a contract that materially altered the roadway, and therefore, the City was simply not required to replace or upgrade all existing guardrails which were originally installed by the State of New York in 1984. Nothing contained in plaintiff's voluminous submissions in opposition to the City's motion, including the lengthy affidavits of his two experts, can alter the undisputed facts that the guardrail involved in the accident was not replaced under HWM1149 and the City had no obligation to upgrade the turned-down ends at issue because there was no notice that a dangerous condition existed. While the Court is sympathetic that plaintiff suffered serious injuries as a result of his accident, sympathy cannot erase the undisputed evidence before the Court or the legal precedent that requires dismissal of plaintiff's claims.

Plaintiff argues that the City is not entitled to assert the defense of qualified immunity because it admitted that no studies were conducted in this case. It is puzzling that plaintiff devotes 14 pages in his Memorandum of Law to this argument since the City did not move for summary judgment based on qualified immunity. Moreover, the overwhelming evidence confirms that HWM1149 was not a reconstruction project that would have triggered an obligation for the City to conduct a traffic study prior to the implementation of the contract. Likewise, during oral argument on this motion, plaintiff's attorney urged the Court to review the Court of Appeals' recent decision in Turturro v. City of New York, 28 NY3d 469 (2016), noting that the decision precludes summary judgment in favor of the City in this case. Again, reliance on Turtutto, supra, is puzzling as the issues here do not involve a traffic study or the defense of qualified immunity, nor do the issues presented require the Court to determine whether the City was acting in a proprietary or governmental capacity which was the issue before the Court in Turturro. Accordingly, plaintiff's claim that the City is not entitled to assert the defense of qualified immunity has no relevance to the issues before the Court and is misplaced.

The record before the Court has established that the City is entitled to summary judgment because it has proven that it did not have a duty to conduct a study regarding a traffic hazard as plaintiff failed to establish notice of any dangerous condition on the roadway where the accident occurred. Plaintiff has not identified any statutory or common law duty which would require the City to conduct a traffic study or undertake a reconstruction project based on the facts before the Court. As such the City is entitled to summary judgment.

CONCLUSION

Trocom has established that it did not owe any duty of care to plaintiff who was neither a party to the contract between DOT and Trocom, nor a third party beneficiary of said contract. Additionally, Trocom simply followed the directives of the City; it replaced those guardrails it was directed to replace in accordance with the City's predetermined locations. Trocom owed the plaintiff no common law duty of care and as such, a negligence claim cannot be sustained against Trocom. Summary judgment is granted in favor of Trocom and all claims and cross claims alleged against Trocom are dismissed.

The City has demonstrated its prima facie entitlement to summary judgment. The record evidence demonstrates that the City did not receive prior written notice of fainted roadway markings on the Henry Hudson Parkway, it did not receive actual or constructive notice of any flooding condition at the time of plaintiff's accident and it did not receive notice through an accident history or prior notices of claims that there was a dangerous condition concerning the subject guardrail or turned-down ends that plaintiff came into contact with on October 27, 2003. Summary judgement is granted in favor of the City and all claims and cross claims alleged against the City are dismissed.ORDERED, that Defendant the City's motion for summary judgment, Sequence No. 005, seeking dismissal of all claims and cross claims asserted against it, is granted in its entirety and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is furtherORDERED, that Defendant Trocom's motion for summary judgment, Sequence No. 006, seeking dismissal of all claims and cross claims asserted against it, is granted in its entirety and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court. SO ORDERED: Dated: April 28, 2017 _____________________________ New York, New York HON.W. FRANC PERRY, J.S.C.