Opinion
Index No. 154722/2016 Motion Seq. No. 003 004 005
06-10-2024
HEIDI BURGER, Plaintiff, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.. JOHN T. PICONE INC., Defendant.
Unpublished Opinion
PART 05M
MOTION DATE: 08/28/2023, 08/29/2023, 08/25/2023
DECISION + ORDER ON MOTION
HON. HASA A. KINGO, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 143, 146, 147, 151, 152, 153, 159, 162, 165 were read on this motion to/for DISMISSAL.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 144, 154, 155, 156, 157, 158, 160, 163, 166 were read on this motion for SUMMARY JUDGMENT(AFTER JOINDER)
The following e-filed documents, listed by NYSCEF document number (Motion 005) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 145, 148, 149, 150, 161, 164, 167 were read on this motion for JUDGMENT - SUMMARY.
Upon the foregoing documents, defendant Consolidated Edison of New York, Inc. ("Con Edison") moves for summary judgment (Motion Seq. 003), defendants Trocom Construction Corp, and Trocom Construction of New York LLC Trocom Construction Corp. ("Trocom Corp"), Trocom Construction of New York LLC ("Trocom NY") (together, "Trocom") move for summary judgment (Motion Seq. 004), and defendant John P. Picone, Inc. ("Picone") moves for summary judgment (Motion Seq. 005). Plaintiff Heidi Burger ("Plaintiff') opposes the motions, which are consolidated for decision. Upon review of the motion papers and procedural history, Motion Seq. 003 and 005 are granted, and Motion Seq. 004 is granted in part.
BACKGROUND
In this personal injury action, Plaintiff seeks to recover damages for injuries she sustained on April 18, 2015, when she was purportedly "caused to fall due to negligent due to negligent repairs and an unsafe pathway on a portion of the East River Bikeway/Greenway," specifically where the path intersects with South Street and Pike Slip. Plaintiff testified in a 50-h hearing that she was riding north a bicycle on the bike path (NYSCEF Doc No. 125, 50-h tr at 11, In 3-4) on a route she had used for five or six years prior, but had not traveled on for several months prior to the incident (id. at 31, In 7-8, 18-20). In the 50-h testimony, Plaintiff indicated on a photograph where the incident occurred (id. at 20). The photograph depicts a bike path marked by two solid parallel lines with a bicycle symbol painted between them (NYSCEF Doc No. 109). The bike path curves to the left under Franklin D. Roosevelt East River Drive ("FDR Drive") towards the intersection of Pike Slip and South Street (id.). Plaintiff marked the path with an arrow pointing to the left to show her direction of travel along the path (id.).
Additional photographs from Plaintiff s deposition depict how the marked bike path curves to the left, then curves right near the west side of FDR Drive before continuing north (NYSCEF Doc No. 111). As the path goes from the area under FDR north onto South Street, a temporary asphalt ramp is constructed on the bike path over the curb (id.). The ramp extends outside the path to the right and the left such that the entire width of the path goes over the ramp as it transitions over the curb (id.). There are three signs depicted in photographs annexed to the deposition (NYSCEF Doc No. 111). The first sign is located along the straight portion of the path (id.). The sign consists of a green and white top portion that has a picture of a bicycle, and arrow pointing straight and the text "WILLIAMSBURG BRIDGE" (id.). The sign also has a yellow and black bottom portion with the text "USE MONTGOMERY STREET" (id.). As the path begins to curve to the left, there is a second yellow and black sign with an arrow that points to the left that says "BIKEPATH" (id.). Finally, as the path turns right towards the west side of the FDR Drive, there is a third yellow and black sign with an arrow that points to the right that also says "BIKEPATH" (id.).
Plaintiff testified that as she continued biking along the path traveling at an unknown rate of speed, she reached a point where the lines of the bike path made a left turn underneath the FDR Drive and heading towards the intersection of Pike Slip and South Street (50-h testimony at 19-20). Plaintiff testified that she was confused by the detour signs marking the path as she approached the curve to the left, which she testified were "pointing to each other" (50-h tr at 27; NYSCEF Doc No. 110, deposition tr at 44, 71). Plaintiff did not stop her bicycle as she approached the area (deposition tr at 44, In 18-25). As she veered to the left, she biked out of the bike path and over the curb to the north of the bike path, which she marked with a circle on one of the photographs (deposition tr at 50, NYSCEF Doc No. 111). Plaintiff testified that she went "airborne" after biking over the curb, which caused her to sustain serious injuries (id. at 50, 71).
On June 3, 2016, Plaintiff commenced this action by filing a summons and complaint against defendants the City of New York (the "City") and the New York City Department of Transportation (the "DOT"). On April 17, 2018, Plaintiff commenced a second action by filing a summons and complaint against defendants Trocom, John P. Picone, Inc., Consolidated Edison of New York, Inc., and the New York City Economic Development Corporation (the "EDC"), under New York County Index Number 153527/2018. Picone filed an answer on May 17, 2018. On May 25, 2018, Trocom filed an answer with cross-claims against Con Edison and the EDC. Con Edison filed an answer with cross-claims against Trocom on May 30, 2018. By order dated November 29, 2019, the two actions were consolidated under Index number 154722/2016. Plaintiff filed the note of issue with jury request on June 29, 2023.
By Motion Seq. 003, Con Edison moves pursuant to CPLR § 3212 for summary judgment to dismiss the complaint and all cross-claims as against it. By Motion Seq. 004, Trocom moves to pursuant to CPLR § 3212 for summary judgment to dismiss the complaint and all cross-claims as against them. Finally, by Motion Seq. 005, Picone moves pursuant to CPLR § 3212 for summary judgment to dismiss the complaint and all cross-claims as against it. Plaintiff opposes all three motions. The City also opposes Motion Seq. 004.
DISCUSSION
A motion for summary judgment "shall be granted if, upon all the papers and proofs submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party" (CPLR § 3212[b]). "The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Pallas-Stephenson v Waisman, 39 A.D.3d 303, 306 [1st Dept 2007]). The movant's burden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (William J. Jenack Estate Appraisers &Auctioneers. Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013][internal quotation marks and citation omitted]). Upon proffer of evidence establishing a prima facie case by the movant, the party opposing a motion for summary judgment bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010][internal quotation marks and citation omitted]).
To maintain a cause of action in 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" (Pasternack v Lab's Corp, of Am. Holdings, 27 N.Y.3d 817, 825 [2016]). "The question of whether a defendant owes a legally recognized duty of care to a plaintiff is the threshold question in any negligence action" (On v BKO Exp. LLC, 148 A.D.3d 50, 53 [1st Dept 2017]). "In the absence of a duty, as a matter of law, there can be no liability" (Pasternack gs, 27 N.Y.3d at 825). "Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises" (Balsam v Delma Eng'g Corp., 139 A.D.2d 292,296 [1st Dept 1988]). "The existence of one or more of these elements is sufficient to give rise to a duty of care" (id.). "Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm" (Lauer v City of New York, 95 N.Y.2d 95, 100 [2000]).
"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 [2002]). Nevertheless, a contractor may have a duty where (1) the contractor creates or exacerbates a harmful condition is subject to tort liability for failing to exercise due care in the execution of its contract, (2) where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation, or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (Church ex rel. Smith v Callanan Indus., Inc., 99 N.Y.2d 104, 111 [2002]).
A. Motion Seq. 003
In the first motion, Con Edison moves pursuant to CPLR § 3212 for summary judgment to dismiss the verified complaint and all cross-claims against it on the grounds that Con Edison did not own, occupy, control, or maintain the bike path, did not cause or create the alleged defective condition, did not owe a duty of care to any party, and did not have actual or constructive notice of any alleged defect. In support of its motion, Con Edison submits, inter alia, Plaintiff s 50-h testimony and deposition, along with annexed photographs, deposition of Anthony Santoro ("Mr. Santoro"), work works as a consultant for Trocom and previously served as Vice President of Trocom, and the deposition and affidavit of Jefferson Wu ("Mr. Wu"), a Record Searcher in the Legal Services Department at Con Edison, with exhibits thereto.
In his affidavit and deposition, Mr. Wu attests that he performed a search of records for work performed by Con Edison at the intersection of South Street and Pike Slip in Manhattan for the time period from April 18, 2013 to April 18, 2015, two years prior to the incident at issue (NYSCEF Doc. No. 115, Wu affidavit ¶ 4). The search was for records relating to any DOT permits, opening tickets, paving orders, corrective action requests, notice of violations, and emergency tickets (id.) The records search indicated that Con Edison had pennis and did work in the vicinity of the incident, but no work was performed on the East River Promenade/FDR Drive underpass and none of the work was done on the bike path (id. ¶¶ 4-15). In further support of its motion, Con Edison submits the affidavit of Christine Batista ("Ms. Batista"), an Engineer Supervisor in the Maps and Records Section of Con Edison's Regional Engineering Department (NYSCEF Doc No. 117, Batista affidavit). Ms. Batista attest that she reviewed relevant Con Edison maps, records, and photographs, and concluded, based on her knowledge and experience, that there are no Con Edison structures or facilities at the incident location (id. ¶ 5). Con Edison therefore moves for summary judgment on the grounds that it did not owe a duty to Plaintiff because it did not own or control the property where the incident occurred and did not create the defect.
The Plaintiff opposes the motion and argues that, although Con Edison "might not have performed actual work at the exact location of the accident," it performed work "within the vicinity of South Street and Pike Slip" and "failed to show that there was no equipment, vehicle or any other instrument required to perform the work at that location" (NYSCEF Doc No. 151, affirmation in opposition ¶ 11). Plaintiff speculates that "the equipment or stowage of the equipment" could be a "factor in the diversion of the bicycle lane" (id.). Plaintiff concedes that Con Edison did not divert the bike path and did not directly cause the unsafe condition, but asserts that "there is a question of fact whether Con Edison may have contributed to the need of the diversion" of the bike path (id. ¶ 15).
Here, the affidavits, testimony, and records submitted by Con Edison are sufficient to meet its burden on the motion by demonstrating that it neither owned nor controlled the subject property. The evidence submitted further demonstrates that Con Edison did not perform work at the subject location during the relevant time period, and therefore, did not cause or create the alleged defective condition (see McAllister v City of New York, 171 A.D.3d 608, 608 [1st Dept 2019] [Defendant may establish that it did not cause or create the condition by submitting records showing that it did not perform any work in the area during the relevant period]). This is sufficient to establish, prima facie, that Con Edison does not owe a duty to the Plaintiff (Kenney v City' of New York, 30 A.D.3d 261, 262 [1st Dept 2006]["0ne who has not performed or is not responsible for any construction work at an accident site owes no duty to a plaintiff injured at the site"]). Plaintiffs assertion that Con Edison "may have contributed to the need of the diversion of the bike path" due to "equipment or stowage of the equipment" is mere speculation, which is insufficient to raise a question of material fact for trial (Mandel v 370 Lexington Ave., LLC, 32 A.D.3d 302, 302 [1st Dept 2006]["A prima facie case of negligence must be based on something more than conjecture; mere speculation regarding causation is inadequate to sustain the cause of action"]). Therefore, the motion is granted, and the complaint is dismissed as against Con Edison.
B. Motion Seq. 004
By Motion Seq. 004, Trocom moves pursuant to CPLR § 3212 for summary judgment to dismiss the complaint against them on the grounds that neither defendant owned or controlled the subject property, nor performed any work on the bike path, or installed the temporary asphalt ramp or signage in question. Movants also argue that the complaint should be dismissed because the condition was open and obvious and not inherently dangerous as a matter of law. In support of the motion, Trocom submits, inter alia, an affidavit of Anthony Santoro, former Vice President of Trocom ("Mr. Santoro") and transcripts of Mr. Santoro's depositions taken on October 12, 2021 and June 15, 2022 (NYSCEF Doc Nos. 133-134, 142). Mr. Santoro testified that Trocom Corp, completed a project referred to as the East River Esplanade Package 3 pursuant to a contract with the EDC for the reconstruction of the bulkhead wall from Old Slip norward to Fulton Street and included railings, fencing, landscaping, brick pavers from the Esplanade, lighting traffic signals and exercise equipment (NYSCEF Doc No. 134, deposition tr at 10-11).
Mr. Santoro further testified that the location of the incident was within the limits of the contract, but Trocom did not complete work there (id.). He also testified that Trocom did not complete work at the intersection of South Street and Pike Slip (id. at 20-21). The work to be performed under the contract included constructing a new bike path and required signage (id. at 13-14), but this work was deleted from Trocom's contract and was done "by somebody else" subsequent to Trocom leaving the site in 2014 (id. at 18, 24). At the deposition, Mr. Santoro was shown pictures of the detour signs and identified them as New York City DOT signs, but testified that he didn't know who installed them, stating it "could be New York City DOT or somebody working for them" (id. at 19).
Plaintiff opposes the motion and notes that Mr. Santoro testified that Jacobs Engineering, a consulting film that was retained by the EDC to over the Esplanade project, directed Trocom to install an asphalt ramp near Pike Slip, but the exact location is unclear (NYSCEF Doc No. 134 at 43, 46, 53-54). In turn, Plaintiff argues that questions of fact exist regarding whether Trocom may have installed the temporary asphalt ramp or placed the signs at the intersection of South Street and Pike Slip. Plaintiff also argues that the question of whether the allegedly defective condition was open and obvious is a question best left for the jury. The City also opposes the motion and points to evidence that seventeen permits were issued to Trocom in the two years prior to the incident, six of which were issued after 2015 and pursuant to Trocom's contract with the EDC. The City argues that this raises a question of fact regarding whether Trocom was actively working at the subject location later than 2015, which contradicts Mr. Santoro's testimony that Trocom completed its work on the project in 2014.
On reply, Trocom reiterates that Trocom NY should be dismissed from the action because only Trocom Corp did work near the subject location. Additionally, Trocom argues that there are no outstanding material questions of fact because Mr. Santoro's testimony establishes that Trocom did not do any work on the bike path or install signage at the subject location. Trocom also disputes doing any asphalt work, but asserts that it is not liable in any event because any work may have been completed would have been completed to Jacobs' specifications and satisfaction. Finally, Trocom reiterates its assertion that the allegedly defective condition was open and obvious and not inherently dangerous.
Mr. Santoro's affidavit and exhibits thereto are sufficient to establish that Trocom Corp and Trocom NY are legally separate entities (NYSCEF Doc No. 142). Plaintiffs assertion that the language of the affidavit is "not particularly clear" on this point is unfounded. On the contrary, the affidavit states unequivocally that the two are separate entities and that Trocom NY "did not have employes back in 2012 through 2015 or at any time," was not involved with and did not perform work on the project in question, and did not perform work at the intersection of Pike Slip and South Street at any time" (id., affidavit ¶ 3). Mr. Santoro further attests that Trocom NY "was merely an equipment leasing company only" that "did not provide any labor to [Trocom Corp] for this or any other project" (id.). Mr. Santoro also testified that Trocom Corp contracted with the EDC, not Trocom NY, which is evidenced by the agreement itself (NYSCEF Doc No. 142, exhibit 1 at 1). This is sufficient to demonstrate that Trocom NY did not owe a duty to the Plaintiff and dismissal as against Trocom NY is appropriate. The evidence offered by Trocom is also sufficient to establish that it did not perform work on the bike path or install signage at the subject location (id. at 18,19,24). Nevertheless, Mr. Santoro's inability to confirm the location of asphalt work Trocom completed "'Fifteen feet north of column 77' near Pike" raises an issue of fact regarding whether Trocom installed the temporary asphalt ramp at issue in this case. The post-2015 penmits referenced by the City raise a second issue of fact regarding whether Trocom performed any work at the site after 2015.
Trocom also moves to dismiss on the grounds that it had no duty to Plaintiff because the allegedly defective condition was open and obvious and not inherently dangerous as a matter of law. "Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware, they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous" (Boyd v New York City Hous. Auth., 105 A.D.3d 542, 543-544 [ 1 st Dept 2013] [internal citations omitted]). In accordance with this principle, a judgment as a matter of law is justified when "the condition in question was not inherently dangerous and could be easily observed through the reasonable use of one's senses" (Philips v Paco, 106 A.D.3d 631 [1st Dept 2013]; Villanti v BJ's Wholesale Club, Inc., 106 A.D.3d 556 [1st Dept 2013]). Moreover, "a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion" (Tagle, 97 N.Y.2d at 169). To this end, courts may consider photographs in analyzing whether an alleged condition is open and obvious and inherently dangerous (see Zhao v Brookfield Off. Props., Inc., 128 A.D.3d 623, 623 [1st Dept 2015][finding that submitted photographs demonstrated that alleged condition was open and obvious and not inherently dangerous]). A complaint should be dismissed where the facts provide the claimed condition is open and obvious, not inherently dangerous, and photographs confirm that the condition is "plainly observable and did not pose any danger to someone making reasonable use of his or her senses" (Boyd, 105 A.D.3d at 543; Jimenez, 191 A.D.3d 603, supra).
In evaluating the alleged dangerous condition, it is important to first acknowledge that Plaintiff testified that the curb she purportedly hit was outside the bounds of the bike path, between the second and third signs (NYSCEF Doc No. 110, Plaintiff deposition tr at 71). She testified that she was confused by the two signs, which caused her to bike out of the path and hit the curb and "go airborne" (id. at 50, 71). Plaintiff does not allege that the bike path itself was inherently dangerous. Certainly, the pictures depict that the bike path is clearly marked on the ground with a bicycle symbol in the middle and bold white lines on the outer bounds of the path. As the path turns left over the curb, the temporary asphalt ramp extends beyond the outer bounds of the bike path on both sides. As the path turns left and then right, the outer bounds are clearly visible in the photographs and is plainly observable by an individual making reasonable use of their senses. Plaintiff concedes that the "the ramp itself is not dangerous" (NYSCEF Doc No. 154, affirmation in opposition ¶ 16). Rather, she alleges that the "the placement of the asphalt ramp along with conflicting confusing signs collectively, exacerbates its dangerous properties" (id.). Whether the signs were placed in an unsafe manner or whether the curb should have been extended farther beyond the path are questions of fact appropriate for a jury. Similarly, questions regarding the Plaintiffs speed and the reasonableness of her actions are relevant to comparative negligence and are not appropriate for summary judgment. Accordingly, the motion is granted in part and only with respect to Trocom NY.
C. Motion Seq. 005
Finally, Picone moves pursuant to CPLR § 3212 for summary judgment to dismiss the complaint as against it on the grounds that it did not owe a duty of care to the Plaintiff because Picone did not perform any work on the subject location, and did not otherwise own, use, occupy, or make special use of the property. In support of its motion, Picone submits, inter alia, a transcript of the deposition of Michael Germano ("Mr. Germano"), a Picone employee who currently serves as manager of the equipment division and purchasing department and previously served as project manager of the emergency water main repair and emergency sewer contracts (NYSCEF Doc No. 95, deposition tr at 12-13). Mr. Germano testified that Picone performed water main repairs pursuant to an agreement with the New York City Department of Environmental Protection from December 29, 2014 until January 5, 2015 at the intersection of South Street and Market Slip (id. at 20-22) and from July 21, 2013 until July 25, 2013 at a location 142 feet from the intersection of South Street and Market Slip (id. at 34). Mr. Germano further testified that Picone did not perform any work on or near the bike path (id. at 59-60), and was not responsible for signs on the bike path, detours of the bike path, or temporary asphalt ramps on the bike path (id. at 19-20).
Plaintiff opposes the motion and argues that Pi cone's work was near the situs of Plaintiff s fall and that questions of fact exist because it is "unknown whether Picone thoroughly inspected and cleaned the roadway after undergoing their water main repair near the area of Plaintiffs accident" (NYSCEF Doc No. 148, affirmation in opposition ¶ 10). Plaintiff further argues that Picone may be liable because they "could be called at any time to level the roadway, clear debris, or correct any mistakes and hazards on the roadway if it was required " (id. [emphasis original]), and asserts that "there is a question of fact as to Picone's awareness of the site and its conditions along with their efforts to clean up the roadway and move their equipment out of the area" (id. ¶ 13).
The testimony of Mr. Germano and exhibits thereto are sufficient to satisfy Picone's prima facie burden of establishing that it did not owe a duty to the Plaintiff because Picone did not own, occupy, or control the area where Plaintiff was injured. Nor did Picone perform work on the bike path, which Plaintiff concedes in her opposition (NYSCEF Doc No. 148, affirmation in opposition ¶ 13 ["Picone merely worked . . . near the vicinity of the bike path"]). Plaintiffs speculative assertions regarding Picone's "awareness" of the location of site, "efforts to clean up the roadway" or equipment are not sufficient to raise a material issue of fact because Plaintiff has not presented any evidence of debris or equipment in the area where she was injured and did not allege that debris or equipment caused her to fall (see NYSCEF Doc No. 125, 50-h tr at 27; NYSCEF Doc No. 110, deposition tr at 44). The court has reviewed the remainder of Plaintiff s arguments and finds them to be uncompelling. Therefore, the motion is granted.
Accordingly, it is hereby
ORDERED that Motion Seq. 003 is granted, and the complaint is dismissed as against Con Edison.; and it is further
ORDERED that Motion Seq. 004 is granted only to the extent that the complaint is dismissed as against Trocom NY; and it is further
ORDERED that Motion Seq. 004 is denied as to Trocom Corp; and it is further
ORDERED that Motion Seq. 005 is granted, and the complaint is dismissed as against Picone; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of Con Edison, Trocom NY, and Picone accordingly.
This constitutes the decision and order of the court.