Opinion
02-10-2017
Daniel CHAMBERS, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, Consolidated Edison Company of New York, Inc., Defendant.
Michael Gunzburg, P.C., New York (Michael Gunzburg of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
Michael Gunzburg, P.C., New York (Michael Gunzburg of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
ANDRIAS, J.P., MOSKOWITZ, KAPNICK, WEBBER, KAHN, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 6, 2015, which recalled and vacated a prior order, same court and Justice, entered April 23, 2015, denying the City defendants' motion for summary judgment and plaintiff's cross motion for partial summary judgment on liability, and, upon recall and vacatur, restored the motion and cross motion, unanimously affirmed, without costs. Order, same court and Justice, entered May 12, 2015, which granted the City defendants' motion for summary judgment and denied plaintiff's cross motion for partial summary judgment, unanimously affirmed, without costs. Order, same court and Justice, entered October 20, 2015, which denied plaintiff's motion to vacate the orders entered May 12, 2015 and August 6, 2015, unanimously affirmed, without costs.
This action seeks recovery for injuries allegedly sustained by plaintiff Daniel Chambers when the front wheel of the bicycle he was riding came into contact with gravel located around a large hole, near a manhole cover.
The court appropriately exercised its inherent authority by correcting its mistake of law in initially denying the summary judgment motion and cross motion as untimely (see G.F.A. Advanced Sys., Ltd. v. Local Ocean LLC, 137 A.D.3d 479, 479, 26 N.Y.S.3d 285 [1st Dept.2016] ; McMahon v. City of New York, 105 A.D.2d 101, 105–106, 483 N.Y.S.2d 228 [1st Dept.1984] ). Plaintiff was not prejudiced by the court's action, which allowed the motion and cross motion to be heard on the merits, as he had submitted opposition to the motion and had cross-moved, and oral argument had been held on the motion and cross motion.
The court properly dismissed the action as plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7–201(c)(2) is at issue here (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ). The City's ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with "a special benefit from that property unrelated to the public use" (Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318 [1995] ). Accordingly, it does not fall within the "special use" exception (see Oboler v. City of New York, 8 N.Y.3d 888, 890, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] ; Patterson v. City of New York, 1 A.D.3d 139, 140, 767 N.Y.S.2d 14 [1st Dept.2003] ; see also Schleif v. City of New York, 60 A.D.3d 926, 928, 875 N.Y.S.2d 259 [2d Dept.2009] ; ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 606–607, 684 N.Y.S.2d 258 [2d Dept.1999] ).
Plaintiff's reliance on Posner v. New York City Trans. Auth. , 27 A.D.3d 542, 813 N.Y.S.2d 106 (2d Dept.2006) is misplaced. Posner involved the use of a manhole by the New York City Transit Authority (NYCTA), for a proprietary function, that is accessing underground cables that fed power to a NYCTA substation (id. at 544, 813 N.Y.S.2d 106 ; see Huerta v. New York City Tr. Auth., 290 A.D.2d 33, 38, 735 N.Y.S.2d 5 [1st Dept.2001] [NYCTA's "maintenance of its subway stations is a proprietary function"], appeal dismissed 98 N.Y.2d 643, 744 N.Y.S.2d 758, 771 N.E.2d 831 [2002] ). Here, the purpose of the manhole cover was to access the City sewer system, not underground equipment or mechanisms.
We have considered plaintiff's remaining arguments and find them unavailing.