Summary
rejecting FITS reports as insufficient where it was unclear whether any of the repaired potholes included the pothole that caused plaintiff's fall
Summary of this case from Webster v. City of New YorkOpinion
13716, 111382/09
12-23-2014
Sandra HAULSEY, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant, Consolidated Edison Company of New York Inc., Defendant, Nico Asphalt Paving, Inc., Defendant–Respondent.
Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon of counsel), for appellant. Bader Yakaitis & Nonnenmacher, LLP, New York (Jesse Young of counsel), for Sandra Haulsey, respondent. McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for Nico Asphalt Paving, Inc., respondent.
Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon of counsel), for appellant.
Bader Yakaitis & Nonnenmacher, LLP, New York (Jesse Young of counsel), for Sandra Haulsey, respondent.
McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for Nico Asphalt Paving, Inc., respondent.
SWEENY, J.P., DeGRASSE, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Opinion Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered August 19, 2013, which denied the motion of defendant City of New York for summary judgment dismissing the complaint and cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The City established its entitlement to judgment as a matter of law in this action where plaintiff was injured when, while walking within a crosswalk, her foot became stuck in a pothole causing her to fall. The City showed that it was not provided with prior written notice of the subject pothole (see Administrative Code of City of N.Y. § 7–201[c][2] ), and the remaining defendant's contention that plaintiff's 311 calls, permits issued to Consolidated Edison, and repair orders (FITS reports) regarding potholes in the vicinity of the accident 19 months earlier satisfied the “written acknowledgment” alternative under Administrative Code § 7–201(c)(2), is unavailing (see e.g. Bruni v. City of New York, 2 N.Y.3d 319, 778 N.Y.S.2d 757, 811 N.E.2d 19 [2004] ).
Plaintiff's 311 calls were insufficient to satisfy the statutory requirement, even if her complaints were reduced to writing (see Gorman v. Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009] ), and permits issued to other parties do not show notice of the defective condition (see Kapilevich v. City of New York, 103 A.D.3d 548, 960 N.Y.S.2d 39 [1st Dept.2013] ). The FITS reports were also insufficient because it was unclear whether any of the potholes that were repaired 19 months prior to the accident was the pothole that caused plaintiff's fall. Furthermore, there was no evidence that the City's repairs “immediately result[ed] in the existence of a dangerous condition” (Bielecki v. City of New York, 14 A.D.3d 301, 301, 788 N.Y.S.2d 67 [1st Dept.2005] ; see also Rosenblum v. City of New York, 89 A.D.3d 439, 931 N.Y.S.2d 326 [1st Dept.2011] ).