Opinion
110962/2006.
February 15, 2011.
Daniela F, Henriques, Esq., Leav Steinberg, LLP, New York, NY, for plaintiffs.
Michael A. Cardozo, New York City Law Department, New York, NY, for defendants.
DECISION AND ORDER
By notice of motion dated July 29, 2010, plaintiffs move pursuant to CPLR 2221 for an order granting them leave to reargue and renew the April 28, 2010 decision and order dismissing their action. Defendants oppose the motion.
I. BACKGROUND
On March 6, 2006, plaintiff Kenneth Blumberg was seriously injured when he tripped and fell on a raised and uneven manhole cover on a pedestrian walkway in Columbus Park in Manhattan. (Affirmation of Daniela F. Henriques, Esq., dated July 29, 2010 [Henriques Aff.], Exh. A). On or about April 20, 2006, plaintiffs filed a notice of claim against defendants, alleging, as pertinent here, that plaintiff's accident occurred as a result of:
[defendants'] negligence . . . in the ownership, operation, management, maintenance and control of said manhole cover and uneven walkway, in causing, permitting and allowing said area to be ill maintained, to become raised, depressed, cracked, uneven, eroded, holey, in failing to provide safe passage; in failing to warn [plaintiff] of the dangers existing thereat; in causing a hazardous and trap like condition, in failing to remedy and or timely remedy the aforesaid dangerous and hazardous condition and in otherwise being negligent, careless and reckless.
(Affirmation of Jessica Wisniewski, ACC, dated Sept. 17, 2010, Exh. A [Wisniewski Aff.]).
Plaintiffs commenced this action on or about August 4, 2006, and defendants served their answer thereafter. (Henriques Aff., Exhs. E, F). On November 21, 2007, during the course of discovery, plaintiffs inspected the manhole and the space below it and found that it had been used as an access point to catch basins below the park, although it had not been used for many years. ( Id.). On or about September 17, 2008, they filed their note of issue. ( Id., Exh. G).
On April 27, 2010, following jury selection, the trial of this action was assigned to me and when the parties first appeared the following day, defendants submitted a written motion in limine seeking dismissal of the action on the grounds that plaintiffs failed to plead, in either their notice of claim or complaint, special use as a theory of liability against defendants and that the manhole cover did not constitute a special use as a matter of law. ( Id., Exh. H). Plaintiffs filed a memorandum of law in opposition in which it cited to the deposition testimony of several City witnesses. ( Id., Exh. I).
After hearing the parties' oral argument on the motion, I dismissed the complaint, finding that the manhole cover did not constitute a special use as a matter of law. ( Id., Exh. J). I also observed, and plaintiffs agreed, that while defendants' motion should have been made pretrial, given the likelihood that plaintiffs would be unable to prove special use as matter of law, it was more efficient to dismiss it before the trial began. I nonetheless gave plaintiffs the option of commencing the trial, which they declined. (Henriques Aff., Exh. J, pp. 5, 8).
II. CONTENTIONS
Plaintiffs now argue that defendants' motion in limine constituted an untimely motion for summary judgment which should have been denied absent a showing of good cause for defendants' delay, and that I misapplied or misapprehended the law in finding that the manhole cover did not constitute a special use. (Henriques Aff.).
Defendants contend that plaintiffs' motion to renew must be denied as they rely on facts that were previously available to them and do not explain their failure to present those facts in opposing defendants' motion in limine in writing or at oral argument. They deny that I converted the motion into one for summary judgment, and argue that I dismissed the action pursuant to CPLR 3211, which may be interposed at any time. They also observe that plaintiffs' request that I dismiss the action before the commencement of the trial constitutes a waiver of their argument that they were deprived of their right to trial, that the action could have been dismissed on the alternate ground that plaintiffs failed to plead special use, and that I determined correctly that the manhole cover did not constitute a special use. (Wisniewski Aff.).
In reply, plaintiffs maintain that they failed to submit the documents on which they rely earlier as they were responding to defendants' motion in limine only, and that the documents would have changed my determination. They contend that as the court on a motion to dismiss pursuant to CPLR 3211 may only determine whether plaintiff has stated a claim, my consideration of the evidence converted defendants' motion into an untimely summary judgment motion, that they were not required to plead special use, and that the existence of evidence that the manhole cover constituted a special use by defendants raises a question of fact for a jury to decide. (Reply Affirmation, dated Oct. 21, 2010).
III. ANALYSIS
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." (CPLR 2221 [d][2]). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion." (CPLR 2221[e][2], [3]). The determination as to whether the failure to present facts on a prior motion was sufficiently justified is discretionary. ( Mejia v Nanni, 307 AD2d 870 [1st Dept 2003]). Pursuant to CPLR 2221(f), a combined motion for leave to reargue and leave to renew "shall identify separately and support separately each item of relief sought."
A. Timeliness of motion
Here, as the grounds upon which defendants moved for dismissal relate to plaintiffs' pleading and whether they stated and/or had a claim against defendants, their motion in limine may be deemed a motion to dismiss pursuant to CPLR 3211(a)(7) which may be considered at any time, even during trial. Thus, defendants' motion was timely interposed. ( See Herman v Greenberg, 221 AD2d 251 [1st Dept 1995] [court did not err in dismissing counterclaim during trial as motion to dismiss for failure to state cause of action may be entertained at any time; "a decision thereon need not be reserved until after the proponent of the cause of action presents evidence to the jury, provided an adequate opportunity to argue in opposition to the motion is accorded"]; Rainbow Hospitality Mgt., Inc. v Mesch Eng'g, P.C., 270 AD2d 906 [4th Dept 2000] [court properly granted motion to dismiss complaint during trial]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3211:28 [CPLR 3211(a)(7) motion may be made at beginning of trial and would have to be entertained]).
Moreover, as extrinsic evidence may be considered on such a motion ( see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2d Dept 2007] [when extrinsic evidence is submitted on CPLR 3211 motion, allegations are not deemed true, and standard of review becomes whether proponent of pleading has cause of action]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76 [1st Dept 1999], affd 94 NY2d 659 [same]), to the extent that I considered any, I did not thereby convert the motion into one seeking summary judgment ( see Mayerhoff v Timenides, 269 AD2d 369 [2d Dept 2000] [although court may not convert motion to dismiss into motion for summary judgment without notice to parties, it may nevertheless consider evidentiary submissions to determine whether plaintiff has valid claim]; see also Henrickson v City of New York, 285 AD2d 529 [2d Dept 2001], lv denied 97 NY2d 612 [trial court dismissed action after trial on grounds that notice of claim was defective and plaintiff could not prove prior written notice; while plaintiff claimed that court improperly converted motion in limine into untimely summary judgment motion, court in effect converted motion in limine into motion to dismiss plaintiff's complaint after hearing evidence]).
In any event, having apparently perceived that dismissal was a foregone conclusion, plaintiffs opted not to go forward with the trial, a strategy which forecloses them from advancing the procedural argument that I improperly dismissed the action before the trial and establishing that I misapplied or misapprehended the law in entertaining defendants' motion.
B, Special use
Pursuant to Administrative Code § 7-201, the plaintiff must plead and prove that City had prior written notice of the alleged dangerous condition before it may be held liable with two exceptions: (1) where the City affirmatively created the dangerous condition, or (2) where a special use conferred a special benefit upon City. ( Amabile v City of Buffalo, 93 NY2d 471; Farrell v City of New York, 49 AD3d 806 [2d Dept 2008]). In order to establish that City made a special use of the injury-causing location or object, the plaintiff must show that City derived a special benefit from it unrelated to public use or different from that conferred on the public at large. ( Denio v City of New Rochelle, 71 AD3d 717 [2d Dept 2010]).
In orally granting defendants' motion to dismiss, I relied on Patterson v City of New York, where the First Department held that the mere presence of a manhole cover in the street does not establish its special use. ( 1 AD3d 139 [1st Dept 2003]). And in Oboler v City of New York, where the plaintiff was allegedly injured when he tripped on a manhole cover that was depressed and not level with the street, the Court of Appeals, in questioning whether the City may derive a special from a manhole cover located in a public street, found to the contrary. ( 8 NY3d 888; see also Schleif v City of New York, 60 AD3d 926 [2d Dept 2009] [plaintiff tripped over depression in asphalt abutting manhole cover and then caught foot on edge of cover; court questioned whether special use doctrine was applicable]).
Here, it is undisputed that the manhole was used by defendant Department of Parks and Recreation to access catch basins beneath the park. However, manholes or catch basins or similar structures which provide functions related to the maintenance of streets or roadways have been held not to constitute a special use to the municipality as a matter of law. ( See eg Ramos v City of New York, 55 AD3d 896 [2d Dept 2008] [catch basin]; Braunstein v County of Nassau, 294 AD2d 323 [2d Dept 2002] [catch basin]; Lado v City of Rome, 269 AD2d 743 [4th Dept 2000] [water valve vault cover in street]; ITT Hartford Ins. Co. v Village of Ossining, 257 AD2d 606 [2d Dept 1999] [manhole cover]; Barnes v City of New York, 245 AD2d 407 [2d Dept 1997] [drainage grating]; Vise v County of Suffolk, 207 AD2d 341 [2d Dept 1994] [catch basin/sewer cover]).
On the other hand, in Posner v New York City Tr. Auth., the court held generally that manhole covers which provide access to underground equipment or mechanisms constitute a special use, and specifically held that whether the manhole cover in issue, which provided access to underground cables feeding power to the defendants' substation, constituted a special use was a jury question, observing that "where the entity has been permitted to interfere with a street solely for private use and convenience which is in no way connected with the public use," it derives a special use therefrom. ( 27 AD3d 542 [2d Dept 2006]; see also Ingram v City of New York, 28 AD3d 214 [1st Dept 2006] [question of fact as to whether private contractor made special use of roadway by installing conduits below roadway]).
Here, as the manhole cover provided access only to the catch basin, as opposed to underground equipment or mechanisms, Posner is inapposite. Moreover, plaintiffs have not explained or established how the manhole cover, located in a public park and maintained by a public entity, conferred on defendants a special benefit unrelated to public use. ( See eg Poirier v City of Schenectady, 85 NY2d 310 [traffic sign anchor over which plaintiff tripped was maintained by defendant in discharge of duty to create safe streets and did not create special use as signs do not confer special benefit on defendant or public who uses streets]).
And, to the extent that long-term disuse of the manhole is relevant, it is reasonable to coriclude that disuse connotes nonuse, or no special use.
For all of these reasons, plaintiffs have not demonstrated that I overlooked or misapprehended the law in granting defendants' motion to dismiss.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that plaintiffs' motion for leave to reargue is granted, and upon reagument, the motion is denied; and it is further
ORDERED, that plaintiffs' motion for leave to renew is denied.