Opinion
Index No. 153020/2015 Motion Seq. No. 004
12-22-2022
WILLIAM ESCOLASTICO, Plaintiff, v. THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., AND AUDUBON REALTY LLC, Defendants.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN Justice
DECISION + ORDER ON MOTION
DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113 were read on this motion to/for JUDGMENT - SUMMARY.
In this premises liability action, commenced by plaintiff William Escolastico, defendant Audubon Realty LLC moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint as against it. Plaintiff opposes.
Factual and Procedural Background
This case arises from an incident on July 4, 2014, in which plaintiff was allegedly injured in front of a building located at 227 Audubon Avenue in Manhattan ("the premises") when she tripped after stepping into a hole on the sidewalk (NYSCEF Doc No. 1 at 3-10). The premises were owned by defendant Audubon Realty LLC ("Audubon"), and managed by an entity named Successful Management ("Successful") (Doc No. 98 at 4). Plaintiff then commenced the captioned action against defendants City of New York, Consolidated Edison Company of New York, Inc. ("Con Edison"), and Audubon, alleging that he was injured due to their negligent ownership, control, management, and/or maintenance of the sidewalk in front of the premises (Doc No. 1 at 3-10). Audubon joined issue by their answer dated August 18, 2015, denying all substantive allegations of wrongdoing and asserting various affirmative defenses (Doc No. 52).
Audubon moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint as against it, arguing that it did not create the alleged defective condition of the sidewalk, and that it had no actual or constructive notice of it (Doc No. 98 at 5-9). In support of its motion, it submits, among other things, a photograph of the allegedly defective condition of the sidewalk, an affidavit from Chayim Jakob, a Successful employee, and deposition testimony from Yesenia Campoverde, a Con Edison employee (Doc Nos. 22, 41-42, 57). Plaintiff opposes, arguing that Audubon has not satisfied its burden of making a prima facie showing that it is entitled to summary judgment (Doc No. 104 at 4-7). He argues further that, in any event, there are questions of fact as to whether Audubon had constructive or actual notice of the allegedly defective condition (Doc No. 104 at 7-10).
These NYSCEF documents were not submitted as exhibits to Audubon's summary judgment motion (Seq. 004) (Doc Nos. 90, 98), however, each was mentioned in Audubon's moving papers and submitted in connection with prior motions.
Incident Scene Photograph
The image submitted by Audubon is a black and white photograph of the sidewalk in front of the premises (Doc No. 22 at I). It depicts a rectangular opening in the sidewalk with several sawhorse barricades arranged nearby in a square around some metal grating in the parking lane (Doc No. 22 at 1). However, there are no indications of the length, width, and depth of the opening.
Although Audubon submits additional images of the sidewalk in front of the premises (Doc No. 22 at 27; Doc No. 55), it has not explained when those photographs were taken and whether plaintiff stated that such photos accurately depicted the sidewalk at the time of the incident. At plaintiff's deposition, he was only shown the black and white photograph (Doc No. 22 at 1), and he indicated that it showed the condition of the sidewalk at the time of the incident (Doc No. 21 at 26-28).
Affidavit o f Chayim Jakob
In his affidavit, Jakob averred that neither Audubon nor Successful created the allegedly defective condition of the sidewalk, since they never performed or hired anyone to work on the sidewalk, and had no involvement in directing or supervising any work done on it (Doc No. 41 at 2). He further averred that Audubon and Successful had no actual or constructive notice of the condition, had never received a complaint about the sidewalk, and had no prior reported incidents (Doc No. 41 at 3). However, he made no mention of when the sidewalk was last inspected.
Deposition Testimony of Yesenia Campoverde of Con Edison
At her deposition, Campoverde testified that Con Edison performed a search of its records looking for documents relating to work performed on or near the premises for two years prior to the accident (Doc No. 57 at 7-9). The search revealed, among other things, a DOT street opening pennit (no. M012014176105), a Con Edison street/sidewalk opening report (no. PS655152), and a Con Edison paving order (no. 130773) (Doc No. 56 at 2,4-5; Doc No. 57 at 9-26). She explained that the DOT street opening permit gave Con Edison permission to cut into either the street or the sidewalk, without specifying which was being cut (Doc No. 57 at 13). The Con Edison street/sidewalk opening report provided, among other things, details about the type and dimensions of the cuts made, where such cuts were made, and whether the opening had been backfilled (Doc No. 56 at 4; Doc No. 57 at 15-18). She explained further that after Con Edison performs its cuts and the required repair work, it "leave[s] the street or the sidewalk the way [it] found it" through the process of backfilling and paving (Doc No. 57 at 20-21, 25-26).
She stated that, here, the DOT street opening permit listed "conduit construction and franchise" as the purpose for such permit (Doc No. 57 at 13, 30-31). The Con Edison street/sidewalk opening ticket indicated that a rectangular cut was made in the sidewalk in front of the premises and that it was backfilled on August 9, 2013 (Doc No. 57 at 15-24). A paving order was then issued, with paving of the area completed by August 31, 2013, when the area was inspected (Doc No. 56 at 5; Doc No. 57 at 25-26, 45). She could not specify the exact date that the area was paved, but it was inspected and deemed complete on August 31, 2013 (Doc No. 2526). When asked if she could testify to whether photographs of the premises aligned with the work described in the records, she stated that she could not speak to those questions because she had no field experience (Doc No. 57 at 17, 21-22).
Legal Conclusions
"The Administrative Code of the City of New York requires owners of real property abutting any sidewalk to maintain that sidewalk in a reasonably safe condition, which includes repaving, repairing[,] and replacing defective sidewalks" (Tropper v Henry St. Settlement, 190 A.D.3d623, 624 [ 1st Dept 2021];see Administrative Code of the City of NY § 7-210). "[L]iability for an accident on a sidewalk abutting real property will arise when it is established that the owner of said property created the condition alleged or had prior notice" (Early v Hilton Hotels Corp., 73 A.D.3d 559, 561 [1st Dept 2010]). Notice may be either actual or constructive, with the latter occurring when a condition is "visible and apparent and in existence for a sufficient length of time prior to the accident to permit [a] defendant... to discover and remedy it" (George v New York City Tr. Auth., 306 A.D.2d 160, 161 [1st Dept 2003] [internal quotation marks, brackets, and citations omitted]; see Early, 73 A.D.3d at 561). As the moving party, Audubon bears the burden of making a prima facie showing that it is entitled to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
Audubon fails to establish prima facie that it lacked actual or constructive notice, since it "fail [s] to offer evidence based on firsthand knowledge as to when the sidewalk was last inspected prior to plaintiffs accident" (Powell v BLDG 874 Flatbush LLC, 201 A.D.3d 534, 535 [1st Dept 2022]; see Mollette v 111 John Realty Corp., 194 A.D.3d 614, 615 [1st Dept 2021]). Although the Jakob affidavit provides that Audubon did not create the opening and that there were no complaints or incidents involving such opening (Doc No. 41), it does not include any discussion about when the sidewalk was last inspected. Thus, Audubon's summary judgment motion must be denied (see Maria v Concourse Estate, LLC, 200 A.D.3d 578, 579 [1st Dept 2021]), and "there is no need to consider the sufficiency of the opposition papers" (Zabawa v Sky Mgt. Corp., 183 A.D.3d 430, 431 [1st Dept 2020]; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
Even assuming Audubon satisfied its burden of making a prima facie showing, plaintiff demonstrates that questions of fact exist regarding the creation, and Audubon's constructive notice, of the opening. Although Audubon asserts that it did not create the opening and that, instead, Con Edison was responsible for such creation (Doc No. 98 at 8), Campoverde's testimony indicates that any cuts into the sidewalk made by Con Edison were backfilled and paved by August 31, 2013 (Doc No. 57 at 15-26, 45). However, the image submitted by Audubon in support of its motion indicates that an opening was present on the sidewalk (Doc No. 22 at 1). Thus, it is unclear whether the opening was created by defective restoration on the part of Con Edison, or by someone else (see Maldonado v 527 Lincoln Place, LLC, 173 A.D.3d 730, 731 [2d Dept 2019], Iv denied 35 N.Y.3d 914 [2020]; Sheehy v City of New York, 43 A.D.3d 336, 336-337 [1st Dept 2007]).
Similarly, assuming no defective restoration on the part of Con Edison, it is unclear when the defect was created and how long it was in existence prior to the date of plaintiffs incident, which implicates whether the defect was present long enough for Audubon to obtain constructive notice of it (see Samuelsen v Wollman Rink Operations LLC, 201 A.D.3d 490, 491 [1st Dept 2022]; George, 306 A.D.2d at 161). Therefore, viewing the evidence in the light most favorable to plaintiff, the non-moving party (see e.g. Stonehill Capital Mgt. LLC v Bank of the W., 28 N.Y.3d 439, 448 [2016]), Audubon is not entitled to judgment as a matter of law (see Samuelsen, 201 A.D.3dat 491).
Accordingly, it is hereby:
ORDERED that defendant Audubon's motion seeking summary judgment dismissing the complaint as against it pursuant to CPLR 3212 is denied; and it is further
ORDERED that the parties are to appear for an in-person status conference at 71 Thomas Street, Room 305, on February 7, 2023 at 10:00 a.m., unless the parties provide a stipulation beforehand in accordance with the Part rules.