Opinion
4204/2014
01-03-2017
Regina GORI, Plaintiff, v. The CITY OF NEW YORK, Defendant.
Vito A. Cannavo, Esq., Sullivan Papain Block McGrath & Cannavo P.C., Attorney for Plaintiff, 120 Broadway, 18th Floor, New York, New York 10271 Zachary Carter, Esq., By: Kendra E. Riddleberger, Esq., Corporation Counsel for the City of New York, Attorneys for Defendants, 350 Jay Street, 8th Floor, Brooklyn, New York 11201
Vito A. Cannavo, Esq., Sullivan Papain Block McGrath & Cannavo P.C., Attorney for Plaintiff, 120 Broadway, 18th Floor, New York, New York 10271
Zachary Carter, Esq., By: Kendra E. Riddleberger, Esq., Corporation Counsel for the City of New York, Attorneys for Defendants, 350 Jay Street, 8th Floor, Brooklyn, New York 11201
Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Order to Show Cause/ Petition/Cross Motion And Affidavits (Affirmations)1A–1B
Opposing Affidavits (Affirmations)2A–2B
Reply Affidavits (Affirmations)3
Introduction
Defendant, the City of New York, moves by Notice of Motion, sequence number one, pursuant to CPLR § 3212 for summary judgment and to dismiss the complaint and all cross-claims and for such other and further relief as the court deems just and proper. Plaintiff, Regina Gori, opposes this application.
Background
Plaintiff allegedly sustained personal injuries on September 30, 2013, while riding her bicycle in the middle of the roadway on 2nd Place between Henry and Clinton Street in Brooklyn, New York. Plaintiff testified at a GML § 50–h statutory hearing on February 18, 2014, and at an examination before trial (EBT) on October 27, 2014 (see generally, Notice of Motion, Exhibit B; see also Notice of Motion, Exhibit E). She testified that she was riding her bicycle to work when the front tire of her bicycle became caught on a recessed manhole cover located in front of 27 2nd Place. Plaintiff was thrown over the handlebars of her bicycle and fell onto her elbow (see 50–h at 12–13; see also Gori EBT at 20–21, 26, 28).
Plaintiff identified and marked photographs of the recessed manhole cover at her 50–h hearing (see Affirmation in Opposition, Exhibits A–E). Plaintiff estimated that the manhole cover was located approximately one third or halfway down 2nd Place and was recessed between one and two inches below the surrounding asphalt (see Gori EBT at 20, 23). The photograph of the manhole cover, which was marked at plaintiff's 50–h hearing as Respondent's Exhibit D, includes a ruler showing the manhole cover is recessed approximately one inch from the surrounding pavement (see Affirmation in Opposition, Exhibit D).
Peter Galante (Galante), a Department of Environmental Protection (DEP) Supervisor, testified at an EBT on June 18, 2015 (see, Notice of Motion, Exhibit G; see also Affirmation in Opposition, Exhibit I). Galante testified that the manhole cover which caused plaintiff's accident is owned by the DEP and grants access to the sewer lines (see Galante EBT at 17). These manhole covers can sometimes sink an inch or two due to the weight of roadway traffic (see Galante EBT at 41–42). Although the DEP generally repairs their manhole covers, as discussed below, the Department of Transportation (DOT) also repairs the manhole covers in the event that they are repaving the entire street (see Galante EBT at 116).
As a general matter, the DEP does not conduct routine inspections of manhole covers for the sewer lines. Inspections are conducted when the DEP is "called for sewer backups" or after "a major cave-in" (Galante EBT at 24–26). Galante testified that a sunken manhole cover would be repaired in the event that it is "reported by a consumer". However, it would have to be a "major" or "high priority" defect. For example, if either the manhole cover, the expansion ring which holds the cover, or the casting which is affixed into the street and secures the expansion ring is broken, the DEP will create a work order for the repair. A depressed manhole cover which is not flush with the street is not considered a major defect unless it is "way below the surface". Anything less than one foot below the surface is not considered defective absent any additional issues (see Galante EBT at 27–33).
Q.If the work crew that is sent to inspect a sewer manhole cover finds that the manhole is sunken one to 12 inches below the street surface, what, if anything do they do?
A.Nothing.
Q.And why is that?
A.Because, there's no major defect with the manhole casting.
(Galante EBT at 40–41).
Galante further testified that it is the DEP's standard practice to use orange paint to mark where a repair of a major defect is required. The DOT also uses orange paint to mark defects (see Galante EBT at 35, 37, 39). There is a record called a "116" log wherein DEP workers record when orange spray paint is placed at a particular location (see Galante EBT at 36). Two photographs of the manhole cover were marked at Galante's EBT as Plaintiff's Exhibits 1 and 5 (see Affirmation in Opposition, Exhibits E & F). Galante testified that orange paint is visible in the center of the cover in Plaintiff's Exhibit 1, and it is the color paint used by DEP to mark a major defect (see Galante EBT at 117).
Plaintiff requested copies of any 116 reports prepared for 2nd Place for 1 year prior to the date of the accident in a Notice for Discovery and Inspection dated June 24, 2015 (see Affirmation in Opposition, Exhibit J). In the City's Response to Notice for Discovery and Inspection the City objected to this demand as overly broad, but "[w]ithout waiving said objection requested 116 reports/log reports for 2nd Place between Henry Street and Clinton Street for one year prior to and including the date of incident" and "[n]o records were found" (Affirmation in Opposition, Exhibit M, Response to Notice for Discovery and Inspection Dated June 24, 2015).
DOT Records Search
Talia Stover (Stover), a DOT paralegal, submitted an affidavit, sworn to on or about June 16, 2016 (see generally Notice of Motion, Exhibit H, Talia Stover Affidavit). In her affidavit, Stover stated that she personally conducted a search for "permits, applications for permits, corrective action requests, notices of violation, inspections, contracts, maintenance and repair orders, complaints, gangsheets for roadway work and milling and resurfacing records for the roadway located at 2nd Place between Henry Street and Clinton Street" (id. at ¶ 3). This search, which encompassed a period of two years prior to and including the date of the accident, September 30, 2013, resulted in twelve permits, five hard copy permits, five applications, three CARs (Corrective Action Requests), three NICAs (Notices for Immediate Corrective Actions), fourteen inspections, and four complaints.
Stover also conducted a search for Big Apple Maps for the above stated location. The results of this search were two maps, Volume 1, Pages 30 and 39, which were served on the DOT on October 23, 2003. Fulu Bhowmick, a DOT record searcher, testified at an EBT on January 13, 2015, regarding the results of the DOT record search (see Notice of Motion, Exhibit F). It is uncontested that the DOT records do not provide prior written notice of the sunken manhole cover at issue. Accordingly, this Court will limit its discussion to the New York City Department of Environmental Protection (DEP) records.
DEP Records Search
Yves Kedelina, a claims specialist for the DEP Bureau of Legal Affairs, submitted an affidavit, sworn to on June 30, 2016 (see generally, Notice of Motion, Exhibit I, Kedelina Affidavit). In his affidavit, Mr. Kedelina stated that he conducted a search for DEP Bureau of Water and Sewer Operations (BWSO) records including "maintenance records, repair records, inspection records, work orders and complaints pertaining to a sunken sewer manhole cover located at 2nd Place, Brooklyn New York" (see id. at ¶ 4). This search, which encompassed a period of two years prior to September 30, 2013, the date of the accident, resulted in two customer service reports (CSR 185583909 and CSR 18543759), one work order (numbered 842766103), one sewer map and one water map (see id. at ¶¶ 5–8).
CSR 185583909 was located both electronically and in hardcopy form.
At his EBT, Galante testified about the DEP records which resulted from Mr. Kedelina's search. CSRs are generated through 311 and passed internally to the DEP (see Galante EBT at 83). CSR 185583909, which was marked as Exhibit 2 at Galante's EBT, refers to a sewer backup which occurred at 43 2nd Place and was called in to 311 on May 19, 2013 (see Notice of Motion, Exhibit D, Response to PC Order, Exhibit B). The report provides "ON LOCATION 43 2 PL SET UP SAFETY ZONE AND CHECKED 2 SECTIONS OF SEWER MANHOLES FOUND BOTH DOWN AND RUNNING " (id. ).
As a general matter, Galante testified that when inspecting a sewer backup, the inspector must also open the sewer covers located on either side of the sewer cover in question to check where the backup is. In doing so, if the work crew found that the sewer cover was depressed, they would mark the defect on their log sheet (see Galante EBT at 84, 89, 93). However, when he reviewed CSR 185583909 at his EBT, Galante could not tell whether the manhole cover located at 27 2nd Place would be the sewer directly adjacent to that located at 43 2nd Place (see Galante EBT at 93–94). The two additional manhole covers which would have been checked in response to the sewer backup at 43 2nd Place are not notated in this record (see Galante EBT at 95). Galante further testified that he does not know whether the DEP workers opened the two manhole covers when they went to check the sewer backup at 43 2nd Place. It is possible that they looked through the hole in the cover, rather than lift the entire cover to check (see Galante EBT at 102–103).
The second Customer Service Report, CSR 18543759, was marked at Mr. Galante's EBT as Plaintiff's Exhibit 3. This report refers to a second sewer back up at 43 2nd Place which was called in to 311 on September 13, 2013 (see Notice of Motion, Exhibit D, Response to PC Order, Exhibit B). This report makes no reference to inspection of adjacent manhole covers, but referred to a work order which was created at this time. This work order, numbered 842766103, was marked as Plaintiff's Exhibit 4 (see Notice of Motion, Exhibit D, Response to PC Order, Exhibit B). Pursuant to the work order, 300 feet of sewer line was flushed out. Galante testified that this could have been accomplished from the manhole cover at 43 2nd Place. Additional manhole covers could have been opened for this work to be completed, but it is not necessarily required. After review of the work ordered, he did not know whether the manhole cover at 27 2nd Place was flushed (see Galante EBT at 113–114).
Expert Affidavit
Stanley H. Fein (Fein), professional engineer, submitted an affidavit, sworn to on July 26, 2016 (see Affirmation in Opposition, Exhibit P). Fein stated by affidavit that he inspected 2nd Place between Clinton and Henry and examined the manhole cover in question. He opined that "within a reasonable degree of engineering and safety certainty, that the accident involving Regina Gori on September 30, 2013 was caused by the failure of the City of New York to maintain that manhole cover in a safe manner It was depressed by more than one half inch. It was therefore a hazard to persons in the area, including bicyclists" (id. at ¶¶ 4–5). He further opined that as a result, the City violated DOT Highway Rules and Regulations (RCNY) § 2–07(b) and that this condition should have been observed by the DEP when they responded to a sewer back up approximately 50–100 feet away from the manhole in question (id. at ¶¶ 5–6).
"Utility Hole Covers, Transformer Vault Covers and Gratings" colloquially referred to as the "12 Inch Rule".
Discussion
Summary Judgment
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 absence of any material issues of fact (see Gammons v. City of New York , 24 NY3d 562, 25 N.E.3d 958 [2014], citing Alvarez v. Prospect Hospital , 68 NY2d 320, 501 N.E.2d 572 [1986] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle , 126 AD3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 NY3d 499, 965 N.E.2d 240 [2012] ).
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it ‘should only be employed when there is no doubt as to the absence of triable issues’ of material fact" ( Bonaventura v. Galpin, 119 AD3d 625, 988 N.Y.S.2d 866 [2 Dept., 2014], citing Andre v. Pomeroy, 35 NY2d 361, 320 N.E.2d 853 [1974] ). "In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party" ( Boulos v. Lerner–Harrington, 124 AD3d 709, 2 N.Y.S.3d 526 [2 Dept., 2015], citing Pearson v. Dix McBride, LLC, 3 AD3d 895, 883 N.Y.S.3d 53 [2 Dept., 2009] ). "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact" ( Vega v. Restani Const. Corp., 18 NY3d 499, supra , citing Sillman v. Twentieth Century—Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387 [1957] ["Issue-finding, rather than issue-determination, is the key to the procedure"] ).
Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh, 144 AD3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital , 68 NY2d 320, supra; see also Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 11 N.E.3d 693 [2014] ; see also Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718 [1980] ).
New York City Administrative Code § 7–201
"Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City" ( Bartels v. City of New York, 125 AD3d 583, 585, 6 N.Y.S.3d 60 [2 Dept., 2015], citing Katz v. City of New York, 87 NY2d 241, 638 N.Y.S.2d 593 [1995] ). "Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries arising from a defective roadway unless it has received written notice of the defect, or an exception to the written notice requirement applies ( Hanley v. City of NY, 139 AD3d 800, 32 N.Y.S.3d 261 [2 Dept., 2016], citing Yarborough v. City of New York, 10 NY3d 726, 853 N.Y.S.2d 261 [2007] ; see also Bartels v. City of New York, 125 AD3d 583, supra ).
"Administrative Code of the City of New York § 7–201 limits the City's duty of care over its streets and sidewalks by imposing liability only for those defects [of] which its officials have been actually notified exist at a specified location" ( Katz v. City of New York, 87 NY2d 241, supra ;see also Gorman v. Town of Huntington , 12 NY3d 275, 879 N.Y.S.2d 379 [2009], citing Poirier v. City of Schenectady, 85 NY2d 310, 624 N.Y.S.2d 555 [1995] ). New York City Administrative Code (N.Y.C. Admin. Code) " § 7—201(c) requires a plaintiff to ‘plead and prove that the City had prior written notice of a roadway defect, or dangerous or obstructed condition before it can be held liable for its alleged negligence related thereto’ [internal quotation marks omitted] ( Rodriguez v. City of NY, 130 AD3d 999, 14 N.Y.S.3d 155 [2 Dept., 2015], quoting Minew v. City of New York, 106 AD3d 1060, 966 N.Y.S.2d 476 [2 Dept., 2013] ).
"[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" ( Breest v. Long Island R.R., 140 AD3d 819, 33 N.Y.S.3d 420 [2 Dept., 2016], quoting Foster v. Herbert Slepoy Corp. , 76 AD3d 210, 905 N.Y.S.2d 226 [2 Dept., 2010] ; see also Wald v. City of New York, 115 AD3d 939, 982 N.Y.S.2d 534 [2 Dept., 2014] ). Where plaintiff alleges in the complaint that the City created the alleged defect, the City must "establish, as part of its prima facie showing, both that it did not receive prior written notice of the alleged defect, and that it did not create the alleged defect through an affirmative act of negligence" ( Wald v. City of New York, 115 AD3d 939, supra ).
N.Y.C. Admin. Code § 7–201 (c) provides that,
2. No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.
...
4. Written acknowledgement shall be given by the department of transportation of all notices received by it.
"Thus paragraph (2) of the law lists three alternative prerequisites to an action: (1) ‘written notice ... actually given to the commissioner of transportation’ or his designee; (2) ‘previous injury to person or property ... and written notice ... given to a city agency’; or (3) ‘written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition.’ " ( Bruni v. City of New York , 2 NY3d 319, 778 N.Y.S.2d 757 [2004], quoting N.Y.C. Admin. Code § 7–201 ).
The Court of Appeals in Bruni v. City of New York discussed the alternative to prior written notice-written acknowledgement ( 2 NY3d 319, supra ). In Bruni v. City of New York, the court held that a written statement showing that the city agency responsible for repairing a condition had first-hand knowledge both of the existence and the dangerous nature of the condition is an "acknowledgement" sufficient to satisfy the Pothole Law. The "acknowledgement alternative in paragraph (2) of the Pothole Law appears to be designed to make written notice to DOT unnecessary where there is documentary evidence that serves the same function—to demonstrate that the responsible city agency knew of the hazard and had an opportunity to remedy it. This purpose can be served as well by an internal document as an external one. (Id. )
In the instant case, plaintiff contends, among other things, that the City failed to meet their burden because
[i]t cannot come forward with any documents to dispute plaintiff's claims that DEP employees who responded to the scene on two prior occasions (a) did not inspect the manhole cover, (b) did not put the orange spray paint markings at the manhole cover and (c) did not have to utilize those manhole covers when they cleared the sewer blockage that was reported on two occasions at that same location directly adjacent to the happening of this accident
(Plaintiff Affirmation in Opposition at ¶ 44).
As an initial matter, plaintiff plead that the City and a municipal agency had prior written notice of the condition, that the City caused and created the condition and that there was a written acknowledgement of the condition (see Notice of Motion, Exhibit C, Verified Complaint at ¶ 30; see also Exhibit C, Verified Bill of Particulars at ¶ 19, 26, 28–29). The City's burden on summary judgment is governed by the allegations of liability made in plaintiff's pleadings (see Breest v. Long Island R.R., 140 AD3d 819, supra ; Wald v. City of New York, 115 AD3d 939, supra ). Therefore, contrary to plaintiff's contentions, for the City to meet their prima facie burden, they must establish: (1) that they did not have prior written notice of the defect; (2) there was no written acknowledgement of the defect; and (3) that they did not cause and create the defect. The City is not required to prove a negative to meet their burden (see Bentick v. City of NY , 19 Misc 3d 1128(A), 866 N.Y.S.2d 90 [Sup. Ct. 2008] ["The Court rejects plaintiff's invitation to create new law which would require the City in any case where it issued a permit, to prove a negative i.e. that it did not do an inspection. To do so would place an onerous burden on the City and would eviscerate the legislative intent behind the Prior Written Notice Law"] ).
In the instant case, the City met their prima facie burden. The City provided affidavits from a DOT paralegal, Talia Stover, and a DEP claims specialist, Yves Kedelina who conducted two year searches for records relating to the manhole cover located at 27 2nd Place. This search did not substantiate an allegation that the City caused and created the defect. DEP Supervisor Peter Galante testified that a manhole cover can sink over time due to roadway traffic. Furthermore, no records from this search provided the City prior written notice of the depressed manhole cover in question.
Plaintiff contends that CSRs 185583909 and 18543759 provided the City with prior written notice of the defect in question because they serve as an "acknowledgment" of the defect. These reports show that after 311 complaints were made regarding a sewer backup located at 43 2nd Place and the DEP responded. This occurred twice in the months prior to plaintiff's accident. Plaintiff avers that because an inspection took place at 43 2nd Place, the DEP must have inspected the manhole cover at 27 2nd Place. This assertion is based on: (1) Galante's testimony that it is the DEP's standard practice to inspect the manhole on either side when responding to a sewer back up; and (2) the seemingly short distance between the manhole cover in question located at 27 2nd Place and that located at 43 2nd Place. Plaintiff's counsel stated "[t]hus, we have clear evidence of an acknowledgement of a problem which was addressed by the very department responsible for maintaining and repairing sewer manhole covers" (Plaintiff Affirmation in Opposition at ¶ 41). Contrary to counsel's contention, this record does not "acknowledge" a sunken manhole cover located at 27 2nd Place.
Plaintiff relies exclusively on the Court of Appeals' analysis of the "acknowledgement" provision in Bruni v. City of New York (2 NY3d 319, supra ). In Bruni, the DEP responded to a complaint of a sunken and damaged catch basin. The record at issue, an internal document entitled a "Foreman's Report", reflected the investigator's personal observation that the catch basin was "caving". This report provided a suggested remedy of a "cold patch" or "coal patch", included the investigator's sketch of the problem area and the investigators opinion that the location was safe at the time. The Court of Appeals held that "the documents show beyond any question that the City was aware both that there was a hole in the street and that it was dangerous" ( 2 NY3d 319, supra ).
Similar to the facts in Bruni, there is an internal DEP document in the instant case which shows that the DEP investigated a potential defect in response to a complaint. However, the similarities end there. The complaint herein was not for defective hardware, but rather for a sewer backup. Further, unlike Bruni, the record here shows that the DEP responded to this sewer backup in a different location on 2nd Place. The record in question demonstrates that the DEP inspected the manhole cover at 43 2nd Place in response to the backup. It makes no mention of the manhole cover located at 27 2nd Place, which is the location of the defect which caused plaintiff's fall.
Plaintiff relies on the fact that the record indicated that the inspector "checked 2 sections of sewer manholes" at the time of inspection. However, this does not constitute an "acknowledgement" of a depressed manhole cover at 27 2nd Place. Even assuming, arguendo, that the DEP inspector followed their customary practice and inspected the manhole covers on either side of 43 2nd Place, the location of the backup, and even further assuming that the manhole cover in question herein must have been one of those adjacent sewers, the record is silent as to a depressed manhole cover at either location. Since the DEP records only reference a sewer back up at 43 2nd Place, this record cannot provide the DEP notice nor constitute a written acknowledgment that the manhole cover at 27 2nd Place was defective and required repair. Unlike Bruni, this documentary evidence herein does not demonstrate that "the responsible city agency knew of the hazard and had the opportunity to remedy it" (id. ). Accordingly, the City established that they had no prior written notice of the defect, that they didn't "acknowledge" the defect in a DEP record and that they did not cause and create the defect.
In opposition, plaintiff's counsel makes numerous arguments that questions of fact exist. Plaintiff first contends that a question of fact exists based on the orange spray paint that is visible on the manhole cover. The City avers that there is no evidence that the City painted the manhole cover and, therefore, it is insufficient to raise a question of fact with respect to prior written notice.
The photographs of the manhole cover, which were marked at plaintiff's 50–h hearing and at Galante's EBT, are annexed to plaintiff's affirmation in opposition. Faded orange paint is visible in the middle of the manhole cover in two of the photographs; Respondent's Exhibit C and Plaintiff's Exhibit 1 (see Affirmation in Opposition Exhibit C; see also Affirmation in Opposition, Exhibit E). Galante testified that orange paint is visible on the manhole cover and that the DEP's standard practice is to use orange paint to mark where a repair is needed. Galante further testified that the DOT also uses orange paint to mark defects. However, Galante stated that the DEP will use orange paint to mark "major defects" and a depression of approximately one inch does not qualify as "major" (see Galante EBT at 40–41, 117). Additionally, he testified that when the DEP marks defects in need of repair with orange paint they will record this on a "116" log. The City conducted a search for "116" reports/logs in the location and no records were found. Therefore, the presence of orange paint is insufficient to raise a triable issue of fact with respect to whether the City had prior written notice or that there was a written acknowledgment of a defect.
Plaintiff further contends that the DEP violated RCNY § 2–07(b) (34 NYCRR § 2–07[b] ). RCNY § 2–07(b)(1) provides that "[t]he owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware". RCNY § 2–07(b)(3) provides that "[s]treet hardware shall be flush with the surrounding street surface. Street hardware which is greater than 1/2" above or below the street surface as measured by a six foot straight edge centered on the hardware shall be replaced or adjusted at the owner's expense". Plaintiff contends that this creates a "proprietary, statutory, and non-delegable duty to maintain this utility cover" which is a "function outside of prior written notice" (see Plaintiff's Memorandum of Law at 30).
Plaintiff further provided an expert affidavit in support of this position. Professional Engineer Stanley H. Fein opined that the depressed manhole is a defective condition which requires repair and could cause a bicyclist to become injured. This expert further stated, in his professional engineering opinion, that the City failed in its duty to inspect and maintain City owned hardware pursuant to RCNY § 2–07(b). Plaintiff contends that this raises an issue of fact because "[t]he City cannot come forward with any expert proof to dispute the violation of the legal requirements of § 2–07(b). The City cannot demonstrate that the condition would not warrant the inspection, maintenance and repair called for by § 2–07(b) which applies to all owners, including the City of New York (Affirmation in Opposition at ¶ 54).
In the instant case, it is clear from the evidence submitted that the manhole cover is depressed. Even assuming, arguendo, that plaintiff is correct that the City violated RCNY § 2–07(b) by failing to maintain the manhole cover and keep it either flush or within one half inch of the surrounding street, plaintiff failed to provide any authority which would demonstrate that this obviates the requirement that the City have prior written notice of the defect prior to suit.
Plaintiff relied on Torres v Sander's Furniture, (134 AD3d 803, 20 N.Y.S.3d 630 [2 Dept., 2015] ) for the premise that the City is responsible under RCNY § 2–07(b) to maintain City owned hardware. In Torres, the plaintiff tripped and fell when his foot became lodged inside a hydrant gate valve box which was missing its cover. He commenced an action against both the owners and the tenant of the premises. Both defendants commenced third party actions against the City of New York. The defendants moved for summary judgment, arguing that the City of New York, as owner of the valve box, was responsible for maintaining the condition which caused plaintiff to fall. The Supreme Court granted both motions and the Appellate Division, Second Department affirmed. The Appellate Division, in analyzing both N.Y.C. Admin. Code § 7–210, the New York City Sidewalk Law, as well as RCNY § 2–07(b), held that the City, rather than the property owners and tenant, was the responsible party. Plaintiff's reliance on this case is misplaced here inasmuch as prior written notice of the defect was not at issue. Rather, the issue before the court was whether the City or the property owner was liable under the New York City Sidewalk Law. The court was not deciding the City's motion for summary judgment based upon the lack of prior written notice.
For the same reason, plaintiff's reliance on Flynn v. City of New York, (84 AD3d 1018, 923 N.Y.S.2d 635 [2 Dept., 2011] ) is also misplaced. In Flynn, the Appellate Division, Second Department, looked to the legislative intent of the Sidewalk Law, and held that "there is nothing in Section 7—210 of the Administrative Code of the City of New York indicating that the City Council intended to supplant the provisions of 34 RCNY 2—07(b) and to allow a plaintiff to shift the statutory obligation of the owner of the cover or grating to the abutting property owner" ( 84 AD3d 1018, supra ). Neither case discusses the interplay of the City's duty to maintain their hardware under RCNY 2–07(b) with the requirement for prior written notice.
Likewise, plaintiff's reliance on Moore v. City of Yonkers , (54 AD3d 397, 863 N.Y.S.2d 80 [2 Dept., 2008] ) and that line of cases, is misplaced. Plaintiff's proposition that "the maintenance of the sewer line and manhole cover is strictly a proprietary function outside of prior written notice" is unpersuasive (see Plaintiff's Memorandum of Law at 30). In Moore , a homeowner sued the City to recover for flood damage after the City performed construction on the catch basin in front of the driveway and drainage system. The City moved for summary judgment and the Supreme Court denied the motion. The Appellate Division, Second Department, reversed, holding that "a municipality ‘is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature’ " ( 54 AD3d 397, supra, quoting Tappan Wire & Cable Inc. v. County of Rockland, 7 AD3d 781, 777 N.Y.S.2d 517 [2 Dept., 2004] ).
"A governmental entity undertakes a proprietary role when its "activities essentially substitute for or supplement traditionally private enterprises" [citation omitted] (Wittorf v. City of New York , 23 NY3d 473, 15 N.E.3d 333 [2014] ).
Similarly, in Tappan, the Rockland County Sewer Treatment Plant lost power during a hurricane in September 1999. Sewage overflowed from the plant into Sparkill Creek, which overflowed and flooded property leased by the plaintiff. Plaintiff sued the County of Rockland and the County of Rockland Sewer District No. 1 to recover for trespass, negligence and nuisance. The Supreme Court granted the defendants motion for summary judgment as to trespass and denied the motion as to negligence and nuisance. Plaintiff cross-moved for summary judgment on the trespass cause of action and the motion was denied. The Appellate Division, Second Department, affirmed and held, in relevant part, that the County was not entitled to government immunity because their conduct was ministerial in nature ( Tappan Wire & Cable Inc. v. County of Rockland, 7 AD3d 781, supra ). These cases relate to negligent design or maintenance of a sewage system after a sewer backup caused flooding damages; they do not address a prior written notice requirement.
Prior written notice is a condition precedent to a civil suit against the City. "Neither actual nor constructive notice obviates the need for prior written notice under the Administrative Code" ( Minew v. City of NY, 106 AD3d 1060, 966 N.Y.S.2d 476 [2 Dept., 2013] ; see also Farrell v. City of NY , 49 AD3d 806, 854 N.Y.S.2d 470 [2 Dept., 2008] ). The only two exceptions to the prior written notice requirement are special use and cause and create. "Only when one of these exceptions applies is the written notice requirement obviated" ( Rodriguez v. City of NY, 130 AD3d 999, 14 N.Y.S.3d 155 [2 Dept., 2015], citing Carlucci v. Village of Scarsdale, 104 AD3d 797, 961 N.Y.S.2d 318 [2 Dept., 2013] ). In the instant case, neither exception to prior the written notice condition precedent is applicable. The records provided by the City do not show that the City caused and created the defect. There is no contention herein that the City benefits from a special use.
This Court recognizes the shortcomings of the City's pothole law. "The failure to demonstrate prior written notice leaves plaintiff without legal recourse against the City for its purported nonfeasance or malfeasance in remedying a defective sidewalk. Because this prior written notice provision is a limited waiver of sovereign immunity, in derogation of common law, it is strictly construed" ( Katz v. City of NY, 87 NY2d 241, 661 N.E.2d 1374 [1995], citing Laing v. City of New York, 71 NY2d 912, 528 N.Y.S.2d 530 [1988] ). More recently, when analyzing the pothole law, the Court of Appeals stated that
[t]he purpose of a prior written notice provision is to place a municipality on notice that there is a defective condition on publicly-owned property which, if left unattended, could result in injury. This ensures that a municipality, which is not expected to be cognizant of every crack or defect within its borders, will not be held responsible for injury from such defect unless given an opportunity to repair it. The policy behind this rule is to limit a municipality's duty of care over its streets and sidewalks "by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location" ( Gorman v. Town of Huntington , 12 NY3d 275, 907 N.E.2d 292 [2009], quoting Poirier v. City of Schenectady, 85 NY2d 310, 624 N.Y.S.2d 555 [1995] ).
This Court notes that the prior written notice provision at issue in Gorman, § 174–3, which is "similar in effect to Town Law § 65–a (2)", is not analogous to the New York City Administrative Code, specifically in that it does not include an acknowledgment provision. Notwithstanding this, or any inconsistencies in the facts here as compared to Gorman, it should not detract from the court's analysis of the purpose of the prior written notice law.
Inasmuch as there is no proof that the City had prior written notice of the defect, which is a condition precedent to suit, the City's motion must be granted.
Conclusion
Accordingly, the City's motion for summary judgment is granted. The City met their prima facie burden and demonstrated that they did not have prior written notice of the sunken manhole cover, which is a condition precedent to suit. The inspection records of an adjacent manhole cover located on the same block do not constitute a "written acknowledgment" of the defect in question. Further, there is no evidence that the City caused and created the defect. In opposition, plaintiff failed to raise a triable issue of fact. Anything not specifically addressed herein is denied.
The foregoing constitutes the decision and order of this Court.