Opinion
110271/06.
Decided July 1, 2010.
Jean M. Prabhu, Esq., New York, NY, for plaintiff.
Arthur Lewis, Esq., Richard W. Babinecz, Consolidated Edison Co. of New York, New York, NY, for defendant Con Ed.
John E. Orcutt, ACC, Michael A. Cardozo, Corporation Counsel, New York, NY, for defendant City.
Diane R. Silvergleid, Esq., Ahmuty, Demers et al., Esqs., Albertson, NY, for defendant Manetta.
By notice of motion dated February 24, 2010, co-defendant Manetta Industries, Inc. (Manetta) moves an order summarily dismissing plaintiff's claims and co-defendant Consolidated Edison Company of New York, Inc.'s (Con Ed) cross-claims against it. Plaintiff and Con Ed oppose with respect to their claims; co-defendant City does not oppose. By notice of cross-motion dated March 23, 2010, City cross-moves for an order summarily dismissing plaintiff's claims against it. Plaintiff opposes; Manetta does not oppose. For the reasons that follow, City's motion and Manetta's motion are denied.
I. UNDISPUTED FACTUAL BACKGROUND
On December 14, 2005, plaintiff slipped and fell on "black ice" while walking across 55th Street between Fifth and Sixth Avenues, allegedly due to a depression in the road in which water had accumulated. (Affirmation of Diane R. Silvergleid, Esq., dated Feb. 22, 2010 [Silvergleid Aff.], Exh. I at 14; Affirmation of Jean M. Prabhu, Esq., dated Apr. 9, 2010 [Prabhu Aff.], Exh. B). Con Ed owned and maintained a manhole cover near the accident site, on 55th Street between Fifth and Sixth Avenues, approximately 90 feet east of the southeast corner of 55th Street and Sixth Avenue and two feet north of the south curb of 55th Street. (Silvergleid Aff., Exhs. F, Q, R). Eighteen months before the accident, Manetta contracted with Con Ed to perform excavation and trenching work around the manhole and to replace the casting surrounding the manhole. (Silvergleid Aff., Exh. R). The contract requires Manetta to indemnify Con Ed and procure insurance. ( Id., Exh. S).
The casting, a cast-iron tapered sleeve enclosing the manhole cover and providing access into the subsurface vault containing equipment, is secured with concrete; asphalt is added on top. ( Id., Exh. R).
The casting replaced by Manetta was 32 inches in diameter. (Silvergleid Aff., Exh. R). In an affidavit dated February 8, 2010, Manetta's construction manager, Kevin Connelly, explained the procedure usually followed. First, a four-by-four-and-a-half-inch opening is saw-cut in the pavement around the cover and the asphalt and concrete within the opening is removed so that the old casting can be removed with a backhoe. The new one is then put in place. ( Id.). Fresh concrete and asphalt secures the new casting. ( Id.). Nico Asphalt, Inc. (Nico) applies the final layer of asphalt. ( Id.).
Connelly opined that Manetta's work "may not have disturbed any soil around [the casting]" absent any need to excavate an area larger than that surrounding the old casting but that even if the surrounding soil was disturbed, Manetta would have "thoroughly tamped it down" before pouring the fresh concrete and asphalt. ( Id.).
Plaintiff works at a building on 55th Street between Fifth and Sixth Avenues, which abuts the area where he fell. (Silvergleid Aff., Exh. I). He frequently crossed 55th Street on his way to the building, and had observed that water or ice would accumulate in "an indentation where water would sit and not go down the drain." ( Id. at 45-46).
On December 13, 2005 at approximately 8:10 a.m., plaintiff crossed 55th Street and proceeded to his building which was directly in front of him, although he does not recall how far he was from the corner of Sixth Avenue. ( Id. at 22-23). When he was approximately a foot from the curb, he slipped with his left foot and then tripped with his right foot on the curb, landing on the street and sidewalk. ( Id. at 25, 29-30). He then looked where he had fallen and saw black ice but did not recall the dimensions of the ice or whether it touched the manhole cover. ( Id. at 28).
Some time after the accident, plaintiff saw that the area was curbed lower than the rest of the street. ( Id. at 106).
Norman Wesler, PE, plaintiff's expert, investigated the accident area and the available evidence, and issued a report and findings which plaintiff served on defendants. ( Id., Silvergleid Aff., Exh. F). As he has since passed away, his findings are set forth in the affidavit of his partner, Sol Cohen, PE. (Prabhu Aff., Exh. B).
According to Cohen, Wesler observed a four-by-four foot jack-hammered opening and closing in the roadway, which caused a localized one-inch drop in the pavement elevation near the roadway curb line. ( Id.). Cohen opines that the depression trapped storm water, which resulted in the accumulation of black ice, thus concluding that Manetta failed to replace the concrete and asphalt properly. ( Id. at 3-4).
In an affidavit dated February 22, 2010, Manetta's expert, Scott E. Derector, observed on February 5, 2010 that the asphalt had been replaced with concrete. He thus opines that plaintiff's fall was not causally related to Manetta's work, which was properly performed and in compliance with applicable codes and standards. He had seen photographs of the site which revealed no signs of cracking or deterioration of the asphalt pavement in and around the manhole cover. (Silvergleid Aff., Exh. U).
II. PERTINENT PROCEDURAL BACKGROUND
On October 28, 2009, plaintiff filed his note of issue. On November 24, 2009, Manetta moved, by order to show cause, for an order vacating the note of issue and granting an additional 60 days to move for summary judgment. On December 23, 2009, discovery was completed, Manetta withdrew its order to show cause, and on December 30, 2009, the withdrawal was filed with the court.
This action was transferred to me as of January 1, 2010, and on January 29, 2010, I issued my part rules, requiring that motions for summary judgment be filed no later than 60 days following the filing of the note of issue. The justice previously presiding in this part had set a 120-day deadline.
On February 24, 2010, the 119th day after the note of issue was filed, Manetta filed and served notice of the instant motion. (Silvergleid Aff.). City served its notice of motion on March 23, 2010, 146 days after the filing of the note of issue. (Orcutt Aff.).
III. MANETTA'S MOTION FOR SUMMARY JUDGMENT
A. Contentions
Manetta argues that it cannot be held liable for plaintiff's injuries because, as a party contracting with Con Ed, it owed no duty to third parties, and its actions do not come within any of the exceptions set forth in Espinal v Snow Contractors, Inc., 98 NY2d 136 (2002). (Silvergleid Aff.). In support, it relies on its contract with Con Ed and Connelly's affidavit ( id., Exhs. R, S), and maintains that Con Ed is not entitled to indemnification, having inspected and approved the work, and having failed to notify it of the defect (Silvergleid Aff.).
In opposition, plaintiff contends that Manetta's motion is untimely under the new part rules, and alleges that Manetta created the depression that caused accumulation of black ice by failing to restore the pavement properly, thereby launching an instrument of harm and establishing a duty under Espinal. (Prabhu Aff.). In support, it annexes photographs of the accident location and an expert's report ( id., Exhs. A, B, C), and refers to the deposition testimony (Prabhu Aff.; Silvergleid Aff. Exhs. D, F, I, M, P, Q, R).
Con Ed, in its partial opposition, argues that Manetta's liability for the defect poses a jury question, and that pursuant to the contract, Manetta is responsible for the work site notwithstanding Con Ed's duty to inspect or approve. (Affirmation in Partial Opposition of Arthur Lewis, Esq., dated Apr. 26, 2010 [Lewis Aff.], ¶¶ 9-13). Con Ed also asks that the severed fourth-party action be consolidated for trial with the main action. ( Id., ¶ 8).
In reply, Manetta asks that plaintiff's expert's report be disregarded absent notice pursuant to CPLR 3101(d) and absent an ability to cross-examine Wesler, whose findings and photographs cannot be challenged. (Reply Affirmation of Diane R. Silvergleid, Esq., dated Apr. 29, 2010).
B. Analysis
Under the 120-day rule in effect when the note of issue was filed, Manetta's motion is timely. I thus address its motion on the merits.
Absent any assertion that Manetta requested expert disclosure before receiving plaintiff's opposition to its motion, plaintiff's failure to give notice is immaterial. ( Fine Ornaments, Inc. v Esplanade Gardens, Inc., 248 AD2d 287 [1st Dept 1998]; Collins v Greater New York Savings Bank, 194 AD2d 514 [2d Dept 1993]). And although Manetta was not a defendant named by plaintiff at the time, as a party in the fourth-party action when Empire City and Nico moved for summary judgment, it would have been served with papers by all parties, and the resulting order and opinion reflects that plaintiff submitted Wesler's expert report in opposition. (Silvergleid Aff., Exh G.). Consequently, Manetta either received the report or was on notice of it, and has failed to establish that Cohen's affidavit should be disregarded.
In Espinal, the Court of Appeals held that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." ( 98 NY2d 136, 138; Cornell v 360 West 51st Realty, LLC , 51 AD3d 469 [1st Dept 2008]). Nonetheless, it recognized three exceptions to this general rule:
(1) where the contracting party, in failing to exercise the reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other's party's duty to maintain the premises safely."
( Espinal, 98 NY2d at 140).
Plaintiff relies solely on the "launch a force or instrument of harm" exception. According to his expert, the depression in the road resulted from a failure to excavate and replace the concrete properly, leading to the accumulation of water which turned to ice. The findings of his expert witnesses, along with plaintiff's own testimony, if found credible at trial, sufficiently demonstrate, prima facie, that Manetta launched an instrument of harm. ( See Cornell, 51 AD3d 469 [allegation that defendant negligently removed debris during demolition work satisfies "instrument of harm" exception]).
Manetta also provides no evidence in support of its allegation that the entire gutter was improperly sloped, which allegation is otherwise rebutted by plaintiff's testimony that the only patch of ice where he fell was in the street directly in front of his office. That he could not estimate the distance from the corner is immaterial. Manetta's other contentions only evidence triable issues of fact, and it provides no authority for the proposition that it is relieved of liability based on Con Ed's inspection and approval of its work. Rather, they agreed in their contract that Manetta's obligations are not affected by the exercise of Con Ed's right to inspect or approve Manetta's performance. (Lewis Aff., ¶ 23).
A contractual indemnification clause is not enforceable where it seeks to indemnify a party for its own negligence, but it is not necessary that the indemnitor be negligent. ( Brown v Two-Exchange Plaza Partners, 76 NY2d 172, 178). There is no legal or contractual requirement that Con Ed be found negligent in order for the indemnification clause to take effect. ( Id.). Accordingly, Manetta has not shown, prima facie, that it is not obligated to indemnify Con Ed and procure insurance.
Con Ed's request that the fourth-party action be consolidated for trial is not considered, as it is improperly interposed.
IV. CITY'S CROSS-MOTION FOR SUMMARY JUDGMENT A. Contentions
City argues that the timeliness of its motion should be measured pursuant to the part rule in effect before the case was transferred, and that the time for filing was tolled from November 24, 2009, when Manetta moved to vacate the note of issue, to December 30, 2009, when its withdrawal of the motion was filed with the court. (Orcutt Aff.).
Assuming the motion is timely made, City asserts that it cannot be held liable because it received no prior written notice as required by New York City Administrative Code § 7-201(c), and because there is no evidence that it caused or created a dangerous condition. In support it annexes the results of a DOT Roadway search for applications, permits, complaints/repair orders, violations, contracts, and milling/resurfacing records, for West 55th Street between 5th and 6th Avenues, for the two-year period preceding December 13, 2006. ( Id., Exhs. C, D, G).
In opposition, plaintiff argues that City's motion should not be considered because it is untimely even under the 120-day rule, and that if considered, it must be denied given the issues of fact raised as to whether City had written notice of the defective condition, or if it caused or created it. (Prabhu Aff.). He asserts that notwithstanding the absence of written notice of the defect, City knew of it based on its inspections of the site before the accident and the Big Apple Map. ( Id.).
B. Analysis
Pursuant to CPLR 3212, the deadline for filing a motion for summary judgment is 120 days after the filing of the note of issue ( Brill v City of New York , 2 NY3d 648 , 651), although the court may require a shorter deadline (CPLR 3212[a]). Before the court may consider an untimely motion, the moving party must demonstrate good cause for the delay, or "a satisfactory explanation for the untimeliness." ( Brill at 652). The motion's merits or the absence of prejudice resulting from the delay is immaterial. ( Id.).
Here, City filed its motion for summary judgment 146 days after the note of issue was filed, and it provides no authority for the proposition that the time is tolled from the date on which a motion to vacate the note of issue is made. ( Cf Rivera v City of New York , 73 AD3d 413 [1st Dept 2010] [rejecting argument that 120-day rule does not apply to cases that have been struck from calendar, where time limit had expired before case was struck]).
Even if City's motion were considered, the evidence offered reflects that the DOT search yielded numerous permits issued to Consolidated Edison and two complaint/repair orders, that a Big Apple Map indicating defects in the area was produced, and that a second search yielded 64 permits, including 19 for street openings and three building operation permits issued to Con Ed, three notices of violations, two corrective action requests, one maintenance/repair record, and one gang sheet for roadway defects." (Orcutt Aff., ¶ 16, Exh. C).
Although the assistant corporation counsel concludes that there is no evidence that City received prior written notice of the alleged defect ( id., ¶ 20), he provides no explanation and references none of the documents contained within the 3/4-inch stack of records annexed to City's cross-motion, thereby failing to satisfy, prima facie, City's burden of proving that it did not receive prior written notice of the alleged defect or that it neither caused or created the defect.
V. CONCLUSION
Accordingly, it is hereby
ORDERED, that co-defendant City of New York's motion is denied in its entirety; and it is further
ORDERED, that co-defendant Manetta Industries, Inc.'s motion is denied in its entirety;
This constitutes the decision and order of the court.