Opinion
103196/08.
July 16, 2010.
DECISION/ORDER
Recitation, as required by CPLR § 2219 [a] of the of the papers considered in the review of this (these) motion(s):
Papers Numbered
Defs' n/m (3212) w/JH affirms exhs......... 1, 2 Pltfs opp w/AM, RG affids, exhs............ 3, 4 Defs' reply w/JH affirm, exhs................. 5 Pltf's surreply w/RG affid, exhs ............. 6 Upon the foregoing papers, the decision and order of the court is as follows:This is an action by plaintiff, Canal Realty Associates ("Canal"), to recover monetary damages for the property damage allegedly sustained as a result of defendants' negligence. Plaintiff owns a building located at 99-105 Canal Street, New York, New York (the "Property"). JLJ IV Enterprises, Inc. ("JLJ") was hired by the City of New York, the New York City Department of Transportation, and/or the New York City Department of Buildings (collectively, "the City") to perform certain renovation and reconstruction work on the sidewalk near plaintiffs building.
JLJ and the City (collectively "defendants"), who are jointly represented, have answered the complaint. Defendants now move, pursuant to CPLR § 3212, for summary judgment dismissing the complaint against them.
In their separate answers, the City and JLJ assert cross-claims against one another, however, it remains unclear whether these cross-claims are abandoned since the defendants are now jointly represented.
Issue has been joined and discovery is complete. The Note of Issue was filed September 28, 2009. These motions were brought timely (within 120 days of the note of issue being filed), therefore they will be decided on the merits. CPLR § 3212; Brill v. City of New York, 2 N.Y.3d 648 (2d Dept. 2004). The court's decision and order is as follows:
Arguments
Plaintiff claims that on October 2-3, 2007, at approximately 11:30 p.m., JLJ was retained by the City to perform sidewalk construction and repairs. Plaintiff contends that the repairs were performed in a negligent manner, resulting in structural damage. Plaintiff brings two causes of actions based in negligence against defendants for, inter alia, failure to properly supervise the repairs and construction, failure to retain a competent company to make the repairs, improperly performing the work, and for failure to notify plaintiff of the work to be performed.
Defendants contend that the structural damage resulted from a pre-existing condition not caused by defendants and that there are no triable issues of fact. Defendants argue that plaintiff's rely on inadmissable evidence and speculation.
Discovery has been completed. Plaintiff served a Verified Bill of Particulars dated April 4, 2008. Paul Esposito ("Esposito"), a managing agent of the Property and John Vittorioso ("Vittorioso") a superintendent for JLJ, were each deposed.
Espositio testified at his deposition that he is at the Property weekly and he had not noticed any defect regarding the sidewalk prior to the incident,
Vittorioso testified at his deposition that the work they performed on the sidewalk was part of the "School Safety Project," which entailed "doing what they consider bump-out curbs, which is something new the city has been doing now, which is taking an existing radius, the radius of the sidewalk, and bumping it out approximately 6 feet, which is supposed to . . . give the children a more safer [sic] place to stand while they wait to cross [and] make the road narrower . . . [so] people slow down as they come down the street." Vittorioso stated that the City provided a set of plans that consisted of "all the work that has to be done on the project, whether it shows the sidewalk that needs to be done, the bump-out areas, existence of fire hydrants, water, the catch basin where the new bases are going to go." Vittorioso testified that his work on the Property consisted of "installing the new bump-out and sidewalk and curb work . . . we would be doing whatever the plans told [us] to do." Vittorioso stated that there was a City inspector present on the job site "every day;" a City resident engineer showed up "every now and then;" and one of the City's engineer in charge (EIC), would show up "once a week."
When asked how a bump-out is constructed when the sidewalk is located over a basement of a building, Vittorioso responded that "[u]sually we don't touch those because they're always a problem. Unless it's set forth ahead of time and then there are specific plans made for that. Vittorioso stated that JLJ did not know that the sidewalk was set over the basement of a building when they began the job. Vittorioso testified that, usually, this is something that would be set forth in the plans, but the plans provided by the City did not show that the sidewalk was above a basement.
Vittorioso further testified that "if [the sidewalk] is known to be over a vaulted area and the city still wanted to proceed with replacing the sidewalk then the city would have to give us direction on how to proceed and how to construct it. Again, the city likes to avoid the vaulted areas. . . . Because it's usually an issue. You don't know how the vaulted areas are. Some are 200, 300 years old. . ." Vittorioso stated that on the date of the incident, as they were beginning to rip off the sidewalk, they were unaware that they were over a basement/vault. Vittorioso stated "once the jackhammer poked a hole through the vault, we realized what was there." Vittorioso testified that this caused the sprinkler pipe to open and water leaked out.
Defendants provide the affidavit of Lawrence Perez ("Perez"), a senior structural engineer with Halliwell Engineering. Perez states that the steal beams supporting the sidewalk vault are structurally unsound and that the wood sheating under the sidewalk is decaying and shows evidence of rot. Perez states that the corrosion is a pre-existing condition due to long term water seepage.
Plaintiff provides the affidavit of Avishay Mazor ("Mazor"), a structural engineer, who states that the damage to the structure is "consistent with the construction/jack hammering that had been conducted in 10/2007." Additionally, Mazor states that there is damage to other areas of the sidewalk from the jack hammering.
Defendants argue that the affidavit of Mazor should not be considered because plaintiffs response to defendants' expert witness demand was provided after the Note of Issue was filed. Defendants contend that Mazor's expert testimony should not be considered, as it was not provided in a timely manner.
Discussion Summary Judgment — Burden of Proof
The movant on a summary judgment motion has the initial burden of proving entitlement to summary judgment, by tender of evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1st Dept. 1980); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1st Dept. 1985). It is only when the proponent of the motion makes a prima facie showing of entitlement to summary judgment does the burden then shift to the party opposing the motion who must then demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action. Zuckerman v. City of New York, supra at 562. Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact or where the factual issue is arguable or debatable. International Customs Assoc., Inc. v. Bristol-Meyers Squibb Co., 233 A.D.2d 161, 162 (1st Dept. 1996). Moreover, the court cannot resolve issues of credibility, as it is for the jury to weigh the evidence and draw legitimate inferences therefrom.S.J. Capelin Assocs, v. Globe Mfg. Corp., 34 N.Y.2d 338 (1st Dept. 1974).
Where plaintiff sustains property damage caused by a defendant's negligence, that plaintiff is entitled to be awarded monetary damages.Cam v. Mainor, 276 A.D.2d 416 (1st. Dept. 2000). On this motion for summary judgment, defendants have the burden of proving their defenses. Thus, defendants must prove that they did not negligently cause the damage to plaintiff's Property. Defendants have failed to eliminate any issues of fact concerning whether either or both of them were negligent.
Furthermore, there is factual dispute whether the damage was caused as a result of the jackhammer or whether it was a pre-existing condition. Mazor states that the damage to the structure is "consistent with the construction/jack hammering that had been conducted in 10/2007," whereas Perez states that the steal beams supporting the sidewalk vault are structurally unsound and the corrosion is a pre-existing condition due to long term water seepage. This creates an issue of fact for the jury to decide about whether defendants' sidewalk construction created the damage to the Property.
Notwithstanding defendants' claim to the contrary, Mazor's sworn affidavit is timely and the testimony he gives is admissible. CPLR § 3101(d)(1) requires each party to disclose the names of those they expect to call as witnesses upon request by the opposing side. There is no express time period, however, when such disclosure is to be made.
The failure to disclose an expert witness will not usually result in preclusion, unless there is evidence of intentional or willful failure to disclose and the recipient of the disclosure shows they were prejudiced by the delay. Martin v. Triborough Bridge and Tunnel Authority, ___ A.D.3d ___ (1st Dept. 2010) [decided May 11, 2010]; Marichione v. Greenky, 5 A.D.3d 1044 (4th Dept. 2004). Courts have, however, rejected expert testimony when the identification of the expert was not made in pre-trial disclosure and then used to directly oppose a motion for summary judgment. Safrin v. DST Russian Turkish Bath, Inc., 16 A.D.3d 656 (2d Dept. 2005). It is the element of prejudice that is key. Lissak v. Cerabona, 10 A.D.3d 308 (1st Dept. 2004).
In this case, although Mazor's findings were disclosed to the defendants after the Note of Issue was filed, there is no evidence to suggest that the timing prejudiced the defendants. The court has not set a trial date and no evidence exists to suggest that the failure to disclose of the expert witness at an earlier date was made willfully and intentionally. Mazor's testimony is, therefore, admissible.
Conclusion
In accordance herewith:
Defendants' motion for summary judgment is denied. Since the Note of Issue has been filed, this case is ready to be tried. Plaintiff shall serve the Office of Trial Support with a copy of this decision and order, so the case may be scheduled for trial.
Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.