Opinion
Index No. 154895/2014 Motion Seq. No. 1
06-02-2022
Frederic Burtz, Plaintiff, v. The City of New York, Consolidated Edison Company Of New York, Inc., Empire City Subway Company (Limited) Defendants.
Unpublished Opinion
MOTION DATE 01/21/2022
DECISION + ORDER ON MOTION
HON. J. MACHELLE SWEETING, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for JUDGMENT - SUMMARY .
In the underlying action, plaintiff alleged that he sustained injuries after a trip and fall on a hole in a roadway at the intersection of East 59th Street and Lexington Avenue on March 7, 2013.
Pending before the court is a motion wherein defendant Empire City Subway Company (Limited) ("ECS") seeks an order, pursuant to CPLR 3212, granting ECS summary judgment and dismissing plaintiff's Verified Complaint and all cross-claims asserted against ECS.
Standard for Summary Judgment
The function of the court when presented with a motion for summary judgment is one of issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]; Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d 331 [Sup. Ct. App. Div. 1st Dept. 1985]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [NY Ct. of Appeals 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [NY Ct. of Appeals 1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [Sup. Ct. App. Div. 1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, and failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 N.Y.2d 320 [N.Y. Ct. of Appeals 1986]).
Further, pursuant to the New York Court of Appeals, "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d 557 [N.Y. Ct. of Appeals 1980]).
Accident Location
A central issue in this case is whether plaintiff is able to sufficiently specify the place where he fell. In its motion, ESC argues that plaintiff, who is visually impaired, is unable to indicate where he fell, and has actually provided contradictory information naming different locations as the alleged accident site. Defendant the City of New York (the "City") also argues that plaintiff has failed to state a claim upon which relief can be granted, as plaintiff is unable to identify his accident location.
In opposition to this argument, plaintiff's counsel argues in his Affirmation in Opposition (NYSCEF Document # 40) in relevant part:
9.At his 50(H) Hearing, Mr. Burtz clearly testified that when he was crossing East 59th Street with Lexington Avenue to his left, he was walking south. Exhibit E, p. 31, line 23 -p. 32, line 2. Accordingly, Mr. Burtz's 50(H) testimony was consistent with his pleadings.
10. At his deposition, Mr. Burtz mistakenly testified that he was crossing Lexington Avenue and walking east at the time of his accident. This testimony was erroneous and contradicted all of the pleadings and testimony that Mr. Burtz previously had submitted.
The court first notes that the instant case is the result of the consolidation of what was formerly two actions: Index Number 154895/2014, filed by plaintiff against the City, and Index Number 151907/2016 ("Action 2"), filed by plaintiff against ECS and Consolidated Edison Company Of New York, Inc. ("Con Ed"). These two actions were consolidated by order of the court (Hon. Gerald Lebovits) dated March 30, 2017 under the instant Index Number (154895/2014). Unless Action 2 is explicitly referenced, all documents referenced herein were filed under the instant index number.
The consolidation order can be found at NYSCEF Document # 31 in Action 2.
Here, the Notice of Claim (the "NOC") (NYSCEF Document # 49) was filed by plaintiff on or around July 25, 2013. It states, in relevant part:
The claim herein arose on March 7, 2013 at approximately 8:00 p.m., at the corner of East 59 Street and Lexington Avenue, more specifically on the crosswalk between the northwest comer and southwest corner of East 59th Street, at its intersection with Lexington Avenue, in County of New York. City and State of New York, when claimant, FREDERIC BURTZ, was caused to trip and fall on a broken, sunken, dilapidated and/or defective crosswalk in the street and sustained permanent personal injuries, pain and suffering and mental anguish. [emphasis added].
The Complaint (NYSCEF Document #1) was filed on or around May 19, 2014, and the Complaint in Action 2 (NYSCEF Document #1 in Action 2) was filed on or around March 6, 2016. Both Complaints include identical language, which states, in relevant part:
That on March 7, 2013, while the plaintiff, FREDERIC BURTZ, was attempting to cross the public roadway located between the northwest and southwest comer of East 59th Street and Lexington Avenue, he was caused to fall and sustain serious, permanent and personal injures as a result of the dangerous, dilapidated, sunken, uneven, and broken condition of the public roadway located between the northwest and southwest comer of East 59th Street and Lexington Avenue, in the County of New York, City and State of New York. [emphasis added].
The transcript of plaintiff's 50-h hearing, which was conducted on May 9, 2015, (NYSCEF Document #52), provides, in relevant part:
(p. 8-9)
Q. Did the accident take place on the street, on the sidewalk, or someplace else?
A. The street.
Q. Which street?
A. 59th Street.
Q. Were you crossing the street at the time of the accident?
A. Yes.
Q. Do you know which compass direction you were walking, as far as north, south, east or west?
A. I was walking east.
Q. What was the intersecting street at that location where you were crossing?
A. 59th and Lexington.
Q. Was Lexington on your left or right at the time of the accident, the roadway?
A. Left.
[…]
Q. Were you crossing in a crosswalk or outside of the crosswalk?
A. Inside the crosswalk.
Q. How far had you crossed before the accident took place?
A. I just stepped right off of the curb.
(p. 31-32)
(Whereupon, a short recess was taken.)
MS. VALASSIS: Just a few more questions, back on the record.
Q. As you were crossing the street, do you know which compass direction you were walking?
A. South.
[emphasis added].
The transcript of plaintiff's EBT, which was conducted on January 25, 2018, (NYSCEF Document #53), provides, in relevant part:
(p. 12)
A. Oh, the Lighthouse is a place that assists blind and legally blind individuals.
Q. What is the address?
A. I don't remember.
Q. Do you know what street the Lighthouse is on?
A. 59th and Lexington.
Q. Is it on 59th Street or on Lexington?
A. It's on 59th Street between Lexington Avenue and Park Avenue.
Q. Okay, so when you exit the Lighthouse, are you on the north side of 59th Street or the south side?
[…]
A. Let me see, I' m exiting, I'm on the side heading up, the north side, heading uptown, the north side.
MS. ARTESE: So the Lighthouse, the location is on the north side of 59th Street?
MR. GREENE: That's what he is saying.
(p. 13)
Q. When you exited the building, when you exited the Lighthouse, did you take a left or a right?
A. Left.
Q. Okay, so you exited on the north side of 59th Street and took a left, so were you heading east at that point?
A. Yes, I was, yes.
Q. And did you make it to the corner of 59th Street and Lexington Avenue?
A. Yes.
Q. And then where did you walk?
A. I stopped at the corner to cross the street to the subway (indicating).
Q. Okay, so you were at the northwest corner, correct, before crossing the street?
A. Wait a minute. Yes.
Q. Okay, and which corner were you walking toward?
A. I was walking east towards 59th Street.
Q. Sorry, let me repeat that. So when you reached the corner, did you cross a street?
A. No, not yet, I was waiting.
Q. Did you begin to cross a street?
A. I stepped down to begin crossing the street.
Q. And which street were you crossing?
A. I was crossing the street in front of the Lighthouse.
Q. Were you crossing Lexington Avenue or 59th Street?
A Lexington Avenue, I believe.
Q. Okay, so is it fair to say that you were continuing to walk from the northwest corner of 59th Street and Lexington Avenue to the northeast corner?
A. Yes.
Q. Where did you fall?
A. On the corner, when you step off.
Q. So you are saying "when you step off," how many steps off of the corner did you make before you fell?
A. One.
(p. 71)
Q. I know that you testified at great length about the actual accident and the location, and I just want to make it really clear for the record. You said that prior to your accident, you were leaving the Lighthouse; is that correct?
A. Yes.
Q. And you were walking towards the subway; is that correct?
A. Yes.
Q. You were walking towards the subway, okay, and what subway were you going to?
A. The 4, 5, 6.
Q. Where is that subway located?
A. On the corner of 59th and Lexington.
Q. So the Lighthouse is located on 59th Street between Park Avenue and Lexington Avenue; is that correct?
A. Yes.
Q. Okay, so when you left the Lighthouse and you were walking towards the subway, you were walking away from Park Avenue towards Lexington Avenue, correct?
A. Yes.
Q. Okay. Now, prior to your accident, you arrived at the intersection of Lexington Avenue and 59th Street, correct?
A. Yes.
Q. And you were crossing Lexington Avenue, correct, prior to your accident? You were stopping, but you were going to be crossing Lexington; is that correct?
A. Yes.
Q. Okay.
A. Yes.
Q. And do you know which street comes after Lexington, if you were to continue past Lexington?
A. I believe it's Third Avenue.
Q. You were heading in the direction of Third Avenue, correct?
A. Yes.
MR. GREENE: I think that's why he said he was going east.
MS. ARTESE: I just want to make sure because a lot of times people say north and east and west and it's not, so I just want to make sure.
Q. Okay, so I cleared that up. Thank you, I have no more questions about that.
[emphasis added]
The court first notes that plaintiff is consistent, in all filings and testimony, in that he fell within a pedestrian crosswalk at the intersection of East 59th Street and Lexington Avenue (hereinafter referred to as the "Intersection"). At the EBT, plaintiff also testified that he was leaving a place called The Lighthouse, located on the north side of 59th Street, between Lexington Avenue and Park Avenue. Plaintiff testified that he left The Lighthouse and turned left, such that he was walking east, toward Lexington Avenue. When he arrived at the northwest ("NW") corner of the Intersection, he took one step off the curb, and that was when the accident happened.
What is unclear from plaintiff's testimony is which crosswalk plaintiff fell in. If plaintiff stepped off the N.W. corner and headed south, he would have fallen in the crosswalk that connected the N.W. and southwest ("SW") corners (such crosswalk hereinafter referred to as "Crosswalk 1"). In contrast, if plaintiff stepped off the N.W. corner and headed east, he would have fallen in the crosswalk that connected the N.W. and northeast ("NE") corners (such crosswalk hereinafter referred to as "Crosswalk 2").
The NOC, the Complaint, and the Complaint in Action 2 are each consistent insofar as they state that the accident occurred "between the northwest and southwest corner" of the Intersection, which means that the accident happened in Crosswalk 1.
However, plaintiff also testified at his EBT that he was "walking east" and testified, twice, that he was "crossing Lexington Avenue" at the time of the accident. If this is correct, then the accident happened in Crosswalk 2.
Plaintiff's counsel admits, in his Affirmation, that, "At his deposition, Mr. Burtz mistakenly testified that he was crossing Lexington Avenue and walking east at the time of his accident. This testimony was erroneous and contradicted all of the pleadings and testimony that Mr. Burtz previously had submitted."
Adding to the confusion, plaintiff also testified in his 50-h hearing first, that he was "walking east," and later, that he was walking "south." Plaintiff's counsel, in his Affirmation, attempts to clarify plaintiff's testimony, but failed to submit a written affidavit from plaintiff himself. As the City properly argues, plaintiff's counsel's attempts to alter the record is impermissible, as plaintiff himself did not correct his testimony during his EBT, submit an errata sheet after the EBT claiming transcription error, submit a written affidavit, or give any indication to any party that his EBT testimony was incorrect.
ECS argues, in part:
15. Simply put, the plaintiff has too many conflicting allegations to establish where exactly he tripped and fell. Being visually impaired, plaintiff has indicated that he can only see shapes, such as a pedestrian crosswalk. What is not clear, however, is the testimony of plaintiff indicating that he tripped and fell walking from the northwest corner to the northeast corner - which contradicts his allegations that he tripped walking from the northwest corner to the southwest corner of the subject intersection […] ECS should be granted summary judgment on that point alone since the plaintiff cannot actually indicate where he fell.
The City argues, in part:
13.A plaintiff's inability to identify the cause of his or her fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiffs injuries would be based on speculation […]
14.Moreover, GML § 50-e requires that a notice of claim identify the geographical location of an accident with sufficient particularity as to enable the municipality an adequate opportunity to investigate in a timely manner […]
15. Courts require claimants to specifically identify the geographical location of an accident "with sufficient particularity" to enable the municipality "to investigate the matter in a timely fashion."
Here, the record shows that the accident could have happened in either Crosswalk 1 or Crosswalk 2. Nevertheless, the court declines to dismiss plaintiff's complaint for this reason alone.
First, there is no application pending before the court for the complaint to be dismissed. Instead, what is before the court now is only ECS's motion for summary judgment. Neither ECS nor the City filed a motion (or cross-motion under this sequence) for the complaint to be dismissed.
Second, and more importantly, neither ECS nor the City have shown that they are prejudiced by plaintiff's conflicting representations. This is not a situation where the plaintiff gave the wrong address in the NOC, thus preventing the City from being able to investigate the claims in a timely manner. In fact, in this case, plaintiff's counsel is arguing that the NOC, the Complaint, and the Complaint in Action 2 are each correct, and asking the court and other parties to overlook what counsel characterizes as "errors" in plaintiff's EBT testimony. Per the City, records searchers at the City, at ECS and at Con Ed each already searched for records pertaining to Crosswalk 1. Neither the City nor ECS set forth in their papers any prejudice they suffered as the result of the statements made by plaintiff in his EBT.
Con Ed did not file papers with respect to this motion sequence.
The First Department has made clear that when plaintiff fails to identify the accident location, absent a showing of prejudice to defendants, the court should not dismiss what is otherwise a viable cause of action. See, e.g. [internal citations omitted; emphasis added]:
In Robles v New York City Hous. Auth., 23 N.Y.3d 982 (2014), the Court of Appeals reversed the First Department decision that upheld the dismissal of plaintiff's complaint and that granted defendant's motion for summary judgment. In reversing the decision of the trial court, the Court of Appeals held:
On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, and defendant's motion for summary judgment dismissing the complaint denied. The Appellate Division improperly concluded that defendant was entitled to summary judgment, as defendant failed to show that it was prejudiced by any defect in plaintiff's notice of claim").See also, Rodriguez v City of New York, 38 A.D.3d 268 (1st Dept 2007)(holding that a notice of claim must provide sufficient information as to location […] so that governmental authorities have an adequate opportunity to investigate […] Prejudice is established where a municipal defendant is 'able to show that it actually conducted a timely investigation at the wrong site due to the erroneous description'); Williams v City of New York, 229 A.D.2d 114 (1st Dept 1997)(finding that where a timely notice of claim has been filed pursuant to General Municipal Law § 50-e(1), subdivision (6) provides that "at any time" thereafter, and "at any stage" of the action or proceeding, it is within the discretion of the court to permit the correction of a "mistake, omission, irregularity or defect" made in good faith in the notice, "provided it shall appear that the other party was not prejudiced thereby." Moreover, we will not presume prejudice merely because an inadvertent error was made in the notice of claim with respect to location; prejudice must be established […]. On numerous occasions, we have found that a municipal entity has failed to demonstrate prejudice as a result of such error […]. Prejudice has been established, however, where a municipal defendant has been able to show that it actually conducted a timely investigation at the wrong site due to the erroneous description […]
With respect to ECS's motion, the City also argues that it is premature, as all documentary discovery that has been exchanged pertains only to Crosswalk 1 and not to Crosswalk 2. The City argues that as it stands now, the discovery in this case is "an insufficient basis on which to determine liability for any party." This court finds that ECS's motion is premature at this time, as the correct accident location has not yet been identified.
Finally, to the extent that ECS argues that they did not create, own, occupy, control or make special use of any one of the pedestrian crosswalks at the Intersection, the other parties are entitled to explore that through further discovery.
For the reasons stated above, it is hereby:
ORDERED that ECS's motion for summary judgment is DENIED, without prejudice, as premature, and ECS is granted leave to re-file the motion, at its election, through discovery and factual issues regarding the location of the accident has been further clarified.
This is the Decision and Order of this court.