Opinion
12908/05.
Decided August 23, 2007.
Sullivan, Papain, Block, McGrath, Plaintiff Attorney.
Corey E. Klein, Conway, Farrell, Curtin Kelly, Defendant Attorneys.
The defendants the City of Long Beach and ADJO Contracting Corp. separately move for orders pursuant to CPLR 3212 seeking summary judgment in each of their favors, and dismissing the plaintiff's complaint and any cross claims against each of them. The plaintiff opposes both motions. The underlying personal injury action arises from the plaintiff's allegation she sustained personal injury on June 5, 2004, at approximately 11:25 a.m. when the plaintiff was caused to trip and fall due to a broken up curb and metal protruding from the curb on the southern tip of a median in front of 157 Grand Boulevard within the confines of the City of Long Beach, New York.
An Assistant Corporation Counsel of the City of Long Beach states, in an affirmation dated February 9, 2007, in support of the City of Long Beach's motion, this defendant is entitled to the relief sought, as a matter of law, based on the ground no prior written notice was received pursuant to the City of Long Beach Charter § 256A(1). The Assistant Corporation Counsel of the City of Long Beach states Robert Raab, the Commissioner of Public Works, whose department is the only entity designated by law for notice to the City of Long Beach, searched his records for the prior written notice, and confirmed the search revealed no such prior written notice of the condition which allegedly caused the plaintiff's injuries, as shown in the Commissioner's affidavit dated February 9, 2007, submitted as an exhibit with the moving papers.
City of Long Beach Charter § 256A(1) (b) provides, in pertinent part:
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, highway, bridge, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrance thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless at least 48 hours before prior to the occurrence resulting in such damage, injuries or death, written notice of the defective, unsafe, dangerous or obstructed condition of such street, highway, bridge, culvert, sidewalk or crosswalk shall have been filed in the office of the commissioner of Public Works of the City, and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.
City of Long Beach Charter § 256A(1) (d) provides, in pertinent part:
The Commissioner of Public Works shall keep an indexed record in a separate book of all written notices which have been filed with the Commissioner of Public Works, as set forth in subsections b and c, regarding the existence of such defective, unsafe, dangerous or obstructed conditions, which record shall state the date of receipt of each such notice, the nature and location of the condition stated to exist and the name and address of the person from whom the notice is received. The record shall be a public record. The record of each notice shall be maintained in the department of Public Works for a period of three years after the date on which it is received and shall be preserved in the municipal archives for a period of not less than five years.
The City of Long Beach made a prima facie showing of entitlement to judgment as a matter of law on the issue of lack of prior written notice ( see Hyland v. City of New York ,
32 AD3d 822, 821 NYS2d 138 [2d Dept., 2006]). The Court of Appeals "has recognized only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a "special use" confers a special benefit upon the locality" ( Amabile v. City of Buffalo , 93 NY2d 471, 474, 693 NYS2d 77; see also Jacobs v. Village of Rockville Centre , 41 AD3d 539 , 838 NYS2d 597 [2d Dept., 2007]).
The attorney for the defendant ADJO Contracting Corp. states, in an affirmation dated March 9, 2007, in support of ADJO Contracting Corp.'s motion, there is absolutely no evidence ADJO Contracting Corp. caused nor created the defective condition that allegedly caused the plaintiff to fall, to wit a broken curb with a protruding metal band. The attorney for the defendant ADJO Contracting Corp. states ADJO Contracting Corp. was hired by the City of Long Beach in November 2002 to perform certain work which included replacing curbs along the center median where the plaintiff fell, and did complete that work to the satisfaction of the City of Long Beach in December 2002. The attorney for the defendant ADJO Contracting Corp. asserts the evidence shows the work performed by ADJO Contracting Corp. was approved by the City of Long Beach, and no complaints were ever made about the quality of the work performed as it related to the center median curbing. The attorney for the defendant ADJO Contracting Corp. avers concrete strength test results showed the concrete was in compliance with the strength requirements of the contract, and upon completion of the work done and the passage of the one year limited maintenance period relating to defective workmanship, ADJO Contracting Corp. had no contractual duty to repair the roadway nor the curbing in question. The attorney for the defendant ADJO Contracting Corp. points out the deposition testimony of the City of Long Beach shows it was the responsibility of the City of Long Beach to maintain and inspect the area in question. The attorney for the defendant ADJO Contracting Corp. contends the plaintiff has not shown any detrimental reliance upon ADJO Contracting Corp.'s performance of its duties, and the plaintiff could not recall, in deposition testimony, any work done in front of the plaintiff's house where the plaintiff lived for several years before the accident. The attorney for the defendant ADJO Contracting Corp. notes, in deposition testimony, ADJO Contracting Corp. testified neither it nor its subcontractor used the dark, possibly metal, band shown in a photograph allegedly taken by the plaintiff's brother at the time of the accident. The Court finds ADJO Contracting Corp. made a carried its initial burden of a prima facie showing of entitlement to judgment as a matter of law.
The plaintiff's attorney states, in an opposing affirmation dated May 7, 2007, the City of Long Beach, in its moving papers, never addressed the issue of whether it had created the subject defective condition, so this defendant failed to sustain its burden, and establish a prima facie case. The plaintiff's attorney points out the City of Long Beach hired ADJO Contracting Corp. to reconstruct the subject median that caused the plaintiff to trip and fall prior to the day in question. The plaintiff's attorney asserts the City of Long Beach, inter alia, prepared the contract it entered into with ADJO Contracting Corp., and provided ADJO Contracting Corp. with detailed drawings outlining the work to be performed, performed numerous visual inspections, and reported any noted damage of the work performed by ADJO Contracting Corp. The plaintiff's attorney notes the defendants are in dispute as to the material issues in this matter, and in turn, claim the codefendant is liable for the alleged occurrence. The plaintiff's attorney points to the May 10, 2007 affidavit of Thomas R. Parisi, a professional civil engineer who affirms the curing methods employed by the defendants when reconstructing the subject median departed from reasonable engineering and construction standards, thereby leading to its rapid deterioration and causing it to be a dangerous and defective condition.
An Assistant Corporation Counsel of the City of Long Beach states, in a reply affirmation dated May 14, 2007, the City of Long Beach made a prima facie showing of its entitlement to summary judgment as a matter of law by establishing it did not receive the requisite prior written notice of the alleged defect on its roadway/curb. The Assistant Corporation Counsel of the City of Long Beach states the plaintiff failed to raise a question of fact about the prior written notice or demonstrate the availability of a recognized exception. The Assistant Corporation Counsel of the City of Long Beach asserts there is no showing of any involvement by the City of Long Beach about the creation of this dangerous condition. The Assistant Corporation Counsel of the City of Long Beach contends the plaintiff's assertion is flawed that there is a triable issue of fact as to whether the City of Long Beach caused and created the dangerous condition by failing to inspect and maintain the roadway/curb. The Assistant Corporation Counsel of the City of Long Beach insists the plaintiff's argument is also faulty that the City of Long Beach, through ADJO Contracting Corp., improperly constructed the curb. The Assistant Corporation Counsel of the City of Long Beach avers a defect which evolves over a period of time is not an exception to the prior written notice requirement. The Assistant Corporation Counsel of the City of Long Beach concedes the City of Long Beach contracted with ADJO Contracting Corp. to perform road work in the subject area, and that work concluded in December 2002, or January 2003, and the City of Long Beach drew plans for this work, and during the course of the construction employees of the City of Long Beach would visit the job site and inspect work performance. The Assistant Corporation Counsel of the City of Long Beach, however, repudiates the plaintiff's assertions, and states there is no evidence that any of the activity by the employees of the City of Long Beach affirmatively created this defect or dangerous condition. The Assistant Corporation Counsel of the City of Long Beach argues the plaintiff's reliance on the affidavit to the plaintiff's expert to argue the existence of an exception to the prior written notice requirement, to wit the City of Long Beach through its agent, ADJO Contracting Corp., created the defect in question, is flawed because the expert's "rapid deterioration" theory does not stand alone. The Assistant Corporation Counsel of the City of Long Beach points out, according the plaintiff's expert, in order for this curb to fall apart, the curb was "most likely impacted by construction and/or passenger vehicles or trucks, thereby causing it to easily break and fall apart." The Assistant Corporation Counsel of the City of Long Beach notes legal precedent cited by the plaintiff, regarding the two prong theory of improper construction and impact, is misplaced. The Assistant Corporation Counsel of the City of Long Beach also points out a defect which evolves over a period of time is not an exception to the prior written notice requirement, and clearly does not raise a triable issue of fact because there must, as a matter of law, be evidence of a recent repair which immediately results in a dangerous condition which is not the situation here. The Assistant Corporation Counsel of the City of Long Beach notes appellate determinations hold the "rapid deterioration" argument does not raise a triable issue of fact under the affirmative act of negligence exception where the emergence of a dangerous condition results from wear and tear, to wit the impact of a vehicle or environmental factors. The Assistant Corporation Counsel of the City of Long Beach also observes the plaintiff's contention the defect was created as a result of improper construction of the curb and a mysterious impact within one week after the completion of the construction of this high traffic area has no basis in fact nor law, and is mere speculation which is not support by expert empirical data nor foundation facts. The Assistant Corporation Counsel of the City of Long Beach postulates the one week conclusion of the plaintiff is at odds with the plaintiff's testimony at a General Municipal Law § 50-h hearing on November 12, 2004, to wit the plaintiff, who lived right across the street for several years prior to the accident, admitted observing the defect in the curb months before June 5, 2004, when the plaintiff fell. The Assistant Corporation Counsel of the City of Long Beach points to the evidence which indicates the defect appeared a year or more after the work was completed, and the plaintiff's expert opined the cause was an impact with some type of vehicle.
The attorney for the defendant ADJO Contracting Corp. states, in a reply affirmation dated May 22, 2007, nothing in the record supports the plaintiff's conclusory and speculative arguments that ADJO Contracting Corp. caused the section of curb to be damaged where the plaintiff fell on June 5, 2004, some 18 months after ADJO Contracting Corp. worked there. The attorney for the defendant ADJO Contracting Corp. states the plaintiff's affirmation and the expert affidavit fail to raise a question of fact for a jury. The attorney for the defendant ADJO Contracting Corp. reiterates, in detail, the assertions of the defendant ADJO Contracting Corp. in the affirmation dated March 9, 2007, in support of ADJO Contracting Corp.'s motion. The attorney for the defendant ADJO Contracting Corp. challenges the plaintiff's argument that there is a question of fact whether the methods of ADJO Contracting Corp. caused and created the broken six foot span of curb where the plaintiff tripped as supported by the plaintiff's expert engineer.
Under CPLR 3212(b), a motion for summary judgment "shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 325; Andre v. Pomeroy , 35 NY2d 361). Summary judgment is the procedural equivalent of a trial ( Museums at Stony Brook v. Village of Patchogue Fire Dept. , 146 AD2d 572). Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law ( see, Whelen v. G.T.E. Sylvania Inc. , 182 AD2d 446). The court's role is issue finding rather than issue determination ( see, e.g., Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395; Gervasio v. Di Napoli , 134 AD2d 235, 236; Assing v. United Rubber Supply Co. , 126 AD2d 590). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" ( Gervasio v. Di Napoli, supra , 134 AD2d at 236, quoting from Assing v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo , 110 AD2d 616, aff'd 66 NY2d 701). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided ( see, Andre v. Pomeroy , 35 NY2d at 364; Assing v. United Rubber Supply Co., supra ).
A plaintiff opposing a motion for summary judgment is obliged to lay bare evidentiary proof in admissible form in order to show that the allegations are capable of being established at a trial. Mere conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient to defeat a motion for summary judgment ( see Zuckerman v. City of New York , 49 NY2d 557, 562.)
Compliance with local laws requiring prior written notice of a defect or dangerous condition on public ways is normally mandated in order to hold a municipal body liable for injuries to persons due to nonfeasance. Exceptions to this requirement exist where the municipality has acted affirmatively to create the dangerous condition or where there was special use and special benefit derived by the municipality [citations omitted]
Marona v. Incorporated Village of Mamaroneck , 203 AD2d 337, 337-338, 609 NYS2d 938.
The Court has carefully reviewed and considered the parties' papers on both motions. The Court of Appeal has held "the affirmative negligence exception . . . [is] limited to work by the City that immediately results in the existence of a dangerous condition [citation omitted]" ( Oboler v. City of New York , 8 NY3d 888, 889, 832 NYS2d 871). Moreover, the conclusions set forth by the plaintiff's expert are not supported by empirical data and relevant construction practices or industry standards, and the expert's affidavit does not fully explain how the expert reached the conclusions that he did ( see Delgado v. County of Suffolk , 40 AD3d 575, 576, 835 NYS2d 379 [2d Dept., 2007]). The evidence presented by the plaintiff is insufficient to raise a triable issue of fact concerning whether the City of Long Beach acted affirmatively to create the allegedly defective condition, and the special use or special benefit exception cannot be applied under the facts of this case. The Court finds there was no prior written notice of a defect or dangerous condition provided to the City of Long Beach. The Court also finds there is no question of fact whether the methods of ADJO Contracting Corp. caused and created the alleged defect where the plaintiff tripped rather there is speculation offered by the plaintiff about the condition caused by the impact of a motor vehicle more than a year after the construction site was repaired and inspected by the City of Long Beach .
Accordingly both motions are granted in accord with this decision. So ordered.