Opinion
No. 100139/05.
2012-07-31
Christopher J. LITRELL, Jr, an infant by his parents and natural guardian s, Caroline Meserve, and Christopher J. Litrell and Caroline Meserve and Christopher J. Litrell, individually, Plaintiff, v. The CITY OF NEW YORK, LT Land Development Corp, KC Sewer, Drain, Piping & Heating, Inc, Kristen D. Nicholaou, Donna J. Zadorowski, John F. Zadorowski and Joseph Gerace, Defendants.
THOMAS P. ALIOTTA, J.
The following papers numbered 1 to 5 were marked fully submitted on the 25th day of April, 2012:
+-----------------------------------------------------------------------------+ ¦Pages ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦ ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦Numbered ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦Notice of Motion for Summary Judgment by Defendants the City of New York ¦ ¦ ¦and Joseph Gerace, with Supporting Papers and Exhibits (dated February ¦1¦ ¦21,2012) ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦ ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦Affidavit of Dana F. Gumb, Jr. in Support of Summary Judgment (dated ¦2¦ ¦February 21, 2012) ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦ ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦Affirmation in Opposition by Plaintiff, with Supporting Papers and Exhibits¦3¦ ¦(dated March 22, 2012) ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦ ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦Reply Affirmation (dated April 19, 2012) ¦4¦ +---------------------------------------------------------------------------+-¦ ¦ ¦ ¦ +---------------------------------------------------------------------------+-¦ ¦Affirmation in Opposition by Defendant LT Land Development Corp (dated ¦5¦ ¦April 24, 2012) ¦ ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, the motion for summary judgment by defendants the City of New York and Joseph Gerace (collectively hereinafter the “City”) is granted in part, and is otherwise denied.
This is an action for personal injuries allegedly sustained by infant plaintiff Christopher J. Litrell (hereinafter “plaintiff”) in two separate accidents which purportedly took place on January 22, 2004. As claimed by plaintiff, the first is alleged to have occurred at approximately 4:20p.m., when he slipped and fell on ice and was then struck by a motor vehicle (i.e., a minivan) operated by defendant Kristen D. Nicholaou at the intersection of Mill Road and Aviston Street on Staten Island.
It is undisputed the this accident occurred adjacent to an open construction site operated by defendant LT Land Development Corporation (hereinafter “LT Land”). Following the collision, an FDNY ambulance responded to the scene for the purpose of taking plaintiff to the hospital. However, approximately twenty minutes later, the ambulance transporting plaintiff was struck by a vehicle operated by defendant Donna Zaborowski
The van was registered to defendant KC Sewer and Drain, Piping & Heating, Inc., a corporation owned by Nicholaou's husband.
while en route. The ambulance driver at the time in question was defendant Joseph Gerace, an EMT.
This vehicle was registered to defendant Zaborowski's husband, defendant John Zaborowski. The Zaborowski defendants have not appeared and are in default in this action.
The instant action was commenced against the operators and owners of each of the vehicles involved, as well as against LT Land and the City. Plaintiff's parents have asserted derivative claims. Plaintiff's injuries are claimed to include an open femur fracture of the right leg and tibial fracture of the left leg, each of which apparently required him to undergo multiple surgeries and the application of external fixation ( see Plaintiff's Verified Bill of Particulars).
With regard to the first collision, plaintiffs allege the City was negligent in allowing “the accumulation and ponding of snow, ice and/or water at the location”; that this defective condition was the product of improper repair and design of the roadway; and that the absence of adequate catch basins at the subject location and/or the lack of proper maintenance allowed the catch basin to flood or become blocked and inoperable ( see Notice of Claim; Verified Complaint, paras 29–41). It is undisputed that no alternative drainage system had been installed. With regard to the second collision, plaintiffs allege that the City is vicariously liable for the negligent operation of the ambulance by defendant-driver Gerace ( see Notice of Claim; Verified Complaint, paras 45–57). To the extent relevant, plaintiff testified at his deposition that he was attempting to walk his scooter across Aviston Street when the first accident occurred ( see Transcript of General Municipal Law § 50–h hearing, pp 6–7). He further stated that the weather was clear; that it was neither raining or snowing ( id. at 12); but that “[t]he whole street” from one side of the road to the other was covered in ice ( id. at 7). According to plaintiff, who lived around the corner, the ice had been there for “a very long time” and “looked ... brown [and] dirty” ( id. at 5, 7). Plaintiff claimed to have taken only two steps onto the surface of Aviston Street before he slipped and fell ( see EBT of Plaintiff, pp 12–14). At this point, plaintiff's sister called for him to “watch out”, but the minivan “just hit [him]” ( see Transcript of General Municipal Law § 50–h hearing, pp 8; EBT of Plaintiff, pp 14).
As a consequence, plaintiff was allegedly “dragged” for approximately 50 feet before coming to rest ( id. at 30).
While the transcript of plaintiff's “F50–h” hearing indicates that he had “Fgot[ten] up” after he fell, he testified at his deposition that he was unable to regain his footing ( see Transcript of General Municipal Law 50–h hearing, p. 8; EBT of Plaintiff, pp. 15–16).
Defendant Kristen Nicholaou testified at her deposition that she was driving her minivan at “about ten miles per hour because it was icy”. Both of her children were with her in the vehicle. In addition, she claimed to be unfamiliar with the subject location, never having driven there before ( see EBT of Kristen Nicholaou, pp 33–37, 50). According to Ms. Nicholaou, plaintiff “just came out from in front of [a] parked car”, i.e., “darted out right in front of my passenger side” ( id. at 44), and when she “slammed” on her brakes, the “car started sliding forward”. Admittedly, the vehicle “slid [forward] a few feet ... [as it] took a couple of seconds ... [to] stop” ( id. at 49).
The FDNY ambulance arrived minutes later, at which point plaintiff and his mother left for the hospital ( see Transcript of General Municipal Law § 50–h hearing of Caroline Meserve, p. 27). According to the deposition testimony, the ambulance had its sirens on and its emergency lights flashing when it left the accident site ( id.). Approximately five minutes later, the ambulance was struck on the front driver's side at the intersection of Hylan Boulevard and Beach Avenue by the Zaboroswki vehicle ( id. at 27–28). Although strapped to a gurney, plaintiff allegedly “slid” at the moment of impact ( id. at 28–30).
At her deposition, plaintiff's mother testified that plaintiff slid halfway “off the backboard” but does not recall if any part of his body hit anything as a result of the second impact ( see EBT of Caroline Meserve, p26).
In its motion for summary judgment, the City argues with regard to the first collision that (1) it had no notice of the icy condition which is alleged to have caused the accident; (2) it has no duty to install storm sewers; (3) defendant Nicholaou's negligence was the sole proximate cause of the accident; and (4) plaintiff's claim that the accident was caused by the accumulation of ice or water is purely speculative. Nevertheless, it is undisputed that the City was aware of “ponding” in the vicinity of the catch basin, and that there were no storm sewers in the area. The City also acknowledged its receipt of eight prior complaints that this catch basin had become “clogged” or “flooded”, as reflected in a series of Customer Service Requests ( i.e., “311” calling records) from 1999 through 2003 ( see City's Exhibit “V”, Plaintiffs' Exhibit “15”; see also April 27, 2011 EBT of Alfred Young). Also submitted for the Court's consideration was (1) an internal report by the City's Department of Environmental Protection (“DEP”) dated September 9, 2003, which indicated that the non-standard basins in the area “need to be upgraded to standard basins and additional basins need to be installed” ( see Plaintiffs' Exhibit “F4”; City's Exhibit “V”), and (2) a copy of a letter from Councilmember James S. Oddo to DEP's Deputy Commissioner, dated October 23, 2003, in which constituent concerns pertaining to the recurrent flooding of public thoroughfares in the vicinity of the accident ( i.e., Oakwood Beach) were noted ( see Plaintiffs' Exhibit “3”). Moreover, the City admitted its awareness of drainage issues affecting much of Staten Island, which are currently being addressed through a long-term “Bluebelt” project ( see City's Exhibit “Z”; see also Affidavit of Dana F. Gumb, Jr.).
The Bluebelt project involves DEP's plan to implement a new drainage infrastructure that includes natural drainage systems for storm water in the affected area ( see City's Exhibit “Z”; Affidavit of Dana F. Gumb, Jr.).
With regard to the presence of ice in the roadway, the City's search of its records produced only one complaint, made on January 8, 2004, 14 days prior to plaintiff's accident, in which a “Fleak in [the] area causing [an] icy condition” at Mill Road and Aviston Street was cited as a matter of concern ( see Plaintiffs' Exhibit “F15”). Under the comments section, the complaint read “icing problem is being caused by persistent ground water condition” ( id .). However, after an inspection on January 9, 2004, the DEP dispatcher reported that the “Fseepage basin [was] functioning as designed” ( see Plaintiffs' Exhibit “F16”).
According to the deposition testimony of Alfred Young, DEP District Supervisor of Sewer Maintenance Operations on Staten Island, there is a seepage basin at the incident location which is “designed to collect water [which,] through a period of time ... seeps into the ground” ( see June 22, 2007 EBT of Alfred Young, p. 21). There are no pipes running to or from this basin, nor is there any storm sewer system in the area ( id. at 21–23). According to the witness, the basin is inspected in response to complaints and is routinely inspected every two years ( id. at 23, 30). He further testified that “just because there is a ponding condition, doesn't mean that the basin is in disrepair ... [A] seepage basin generally takes one to two, maybe three days for the [collected] water to dissipate into the earth” ( id. at 37). In addition, it was stated that the DEP considers the area where plaintiff's accident occurred to be a “flood plain” or “Fan area that occasion[ally] floods out during rains; [n]ormally [the area] is below sea level” (April 24, 2009 EBT of Alfred Young, p. 15). More particularly, the witness indicated that this particular area “F[is] basically marsh land. The soil is not conducive to drain out as it would be in a different part of Staten Island ... [s]o the soil will retain the water a little longer depending on the volume of rain” (April 27, 2011 EBT of Alfred Young, p. 66). Finally, the district supervisor admitted that he was aware of an engineering study into possibly extending storm sewers into the area in an attempt “to alleviate any ponding and ... [make] the catch basin ... more effective” ( id. at 61).
It is well settled that a municipality is immune from liability arising out of claims that it negligently designed the sewerage system ( see Fireman's Fund Ins Co v. County of Nassau, 66 AD3d 823, 824 [2ndDept 2009] ). However, a municipality is not entitled to governmental immunity arising out of claims that it negligently maintained such a system, as these claims represent a challenge to conduct which is ministerial in nature ( id.).
In the event that dismissal is denied, the City's reply papers request leave to amend its answer to assert the defense of “governmental immunity”. The function of reply papers is to address arguments made in opposition to the motion and not to permit the introduction of new arguments or grounds in support of the requested relief ( see Matter of Allstate Ins Co v. Dawkins, 52 AD3d 826, 827 [2nd Dept 2008] ). Nevertheless, leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit ( seeCPLR 3025[b]; Turturro v. City of New York, 77 AD3d 732, 734 [2nd Dept 2010] ). The City's proposed amendment suffers from neither infirmity.
Here, it is the determination of this Court that the City has established, prima facie, that it was not negligent in the maintenance of its drainage system, and that the flooding in the area is principally due to its low-lying position and the absence of a sewerage system, for which no liability can be imposed (see Nandlal v. City of New York, 66 AD3d 653, 654 [2nd Dept 2009]; Holmes v. Incorporated Vil of Piermont, 54 AD3d 809, 811 [2nd Dept 2008]; Moore v. City of Yonkers, 54 AD3d at 397–398). Moreover, the subject catch basin had been inspected only two weeks earlier and found to be functioning properly.
Although it is well settled that a municipality is obligated to keep the streets within its geographical jurisdiction in a reasonably safe condition for travel, [t]o render a municipality liable for an injury caused by snow and ice on its streets, the plaintiff must establish that the condition constitutes an unusual or dangerous obstruction to travel and either that the municipality caused the condition or a sufficient time had elapsed to afford a presumption of the existence of the condition and an opportunity to effect its removal ( Mazzella v. City of New York, b72 AD3d 755, 756 [2nd Dept 2008], citing Gonzalez v. City of New York, 148 AD3d 668,. 670 [internal quotation marks omitted] ). In this case, the climatological data submitted to the Court suggests that there had been no significant precipitation for several days prior to plaintiff's slip-and-fall, while the temperature had fluctuated above and below the freezing mark. In addition, a DEP inspector had been at the site two weeks earlier.
In the opinion of this Court, the above facts are suggestive of the probability that the dirty ice which plaintiff alleged covered the entire surface of Aviston Street was the product of a much earlier storm which had never been adequately addressed, if at all. Under these somewhat peculiar circumstances, with repetitive freeze-and-thaw cycles occurring in the days preceding plaintiff's fall, an arguable triable issue of fact has been raised as to whether, e.g., the municipality satisfied its duty to maintain its road in a reasonably safe condition, to wit: whether sufficient time had elapsed to afford a presumption [of knowledge] of the existence of the condition and an opportunity to effect its removal (Mazzella v. City of New York, 72 AD3d at 756;see generally San Marco v. Village/Town of Mount Kisco, 16 NY3d 111 [2010] ).
Alternatively, while the January 8, 2004 complaint noted in the DEP's records might otherwise be deemed to satisfy the prior written notice requirement as a “written acknowledgment [of the hazard] from the City ( see Administrative Code § 7–201[c][2] ), it is undeniable that plaintiff's injury occurred within the 15–day grace period afforded to the City under this Administrative provision ( see Ramos v. City of New York, 55 AD3d 896 [2nd Dept 2008]; cf. Bruni v. City of New York, 2 NY3d 319 [2004] ), However, unlike the facts in Ramos, the demonstrated chain of service requests dating back to 1999 and the admitted receipt of the letter from Councilmember Oddo dated just three months prior to plaintiff's accident, are sufficient to convince this Court that a triable issue of fact as to notice has been raised ( cf. Ramos v. City of New York, 55 AD3d at 897;see generally Brown v. City of New York, 90 AD3d 591 [2nd Dept 2011][factual disputes regarding prior written notice should be resolved by a jury] ).
In either event, it is important to note that any liability to which the City may be exposed in this case would be predicated upon the failure of its traditional duty to maintain its streets in a reasonably safe condition, rather than its choice of drainage methods, to which its sovereign immunity would attach. It is not the intention of this Court to create any new substantive or procedural burdens upon municipalities.
Turning to that branch of the City's motion for summary judgment which pertains to the accident involving the FDNY ambulance, the City maintains that (1) defendant Gerace, the driver of the ambulance, had qualified immunity as the operator of an ambulance transporting plaintiff to the hospital, and (2) plaintiff has failed to show a “serious injury” pursuant to Insurance Law § 5102.Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in emergency operation ( see Mouzakes v. County of Suffolk, 94 AD3d 829 [2nd Dept 2012] ). Nevertheless, the statute neither relieves the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor does it shield the driver from the consequences of his reckless disregard for the safety of others (Vehicle and Traffic law § 1104[e]; see Mouzakes v. County of Suffolk, 94 AD3d at 930). Here, the uncontroverted deposition testimony of, e.g., plaintiff, his mother and the defendant-driver, clearly establishes that the latter had activated his siren and emergency lights prior to the accident, and slowed his rate of speed as he approached the intersection where the collision occurred.
As a result, the City has established its prima facie right to summary judgment by demonstrating that its ambulance driver was operating his emergency vehicle with proper regard for the safety of others ( see Vehicle and Traffic § 1104[c], [e]; Saarinen v. Kerr, 84 N.Y.2d 494, 501 [1984];Spencer v. Astralease Associated, Inc, 89 AD3d 530, 531 [1st Dept 2011]; cf. Elnakib v. County of Suffolk, 90 AD3d 596 [2nd Dept 2011] ). The opposing owner and operator having failed to answer and being in default on this motion, no triable issue of fact has been raised on the question of negligence in the operation of the FDNY ambulance
Pursuant to Vehicle and Traffic Law § 1104(c), the exemptions only apply when “audible signals are sounded from any [authorized emergency] vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle” and when the vehicle is equipped with at least one lighted red signal.
Defendant LT Land has adopted and incorporated the arguments made by plaintiffs in opposition to summary judgment.
Accordingly, it is
ORDERED that the motion for summary judgment by defendants the City of New York and Joseph Gerace is granted as to plaintiff's third cause of action; and it is further
ORDERED that the above cause of action and any cross claims relating thereto as against these defendants are hereby severed and dismissed; and it is further
ORDERED that the City's application for leave to amend its answer to assert the affirmative defense of governmental immunity is granted;
ORDERED that any such amended answer shall be served within 20 days after the service upon the City of a copy of this Decision and Order with notice of entry, and it is further
ORDERED that the balance of the motion for summary judgment is denied; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.