Opinion
01 Civ. 5932 (GEL)
October 31, 2003
Michael J. Olley, Coffey Kaye, Bala Cynwyd, PA, for Plaintiffs
Beth N. Alson, (Michael A. Cardozo, Corporation Counsel for the City of New York, on the brief), New York, NY, for Defendant City of New York
Joseph Miller, Cullen and Dykman Bleakley Platt LLP, Brooklyn, NY, for Defendants KeySpan Corporation and KeySpan Energy Delivery, Inc.
OPINION AND ORDER
Plaintiff Hindley Mendelsohn, a New Jersey resident, tripped and fell while crossing a street in Brooklyn. (City Rule 56.1 Stmt. ¶ 1.) He sued the City of New York ("City"), KeySpan Corporation, and KeySpan Energy Delivery, Inc. (collectively, "KeySpan"), alleging that the City negligently failed to maintain that street and that unspecified construction activities of KeySpan created the dangerous condition that caused his fall. (Compl. ¶¶ 20-28.) The City and KeySpan now bring separate motions for summary judgment. Both motions will be granted and the action dismissed.
Plaintiff Gerry Mendelsohn is Hindley Mendelsohn's wife, and her sole cause of action for loss of consortium is entirely derivative of her husband's claims. (See Compl. ¶¶ 29-33.) For ease of reference, the Court will refer to Mendelsohn or plaintiff in the singular.
BACKGROUND
On June 22, 2000, at about 2:15 p.m., Mendelsohn tripped and fell "in the vicinity of 1029-31 Lorimer Street" in Brooklyn (City Rule 56.1 Stmt. ¶ then a public thoroughfare owned by the City. (Id. ¶ 2; KeySpan Rule 56.1 Stmt. ¶ 9.) Mendelsohn Acknowledges that he fell in the street, not on the sidewalk, "approximately nine feet from the western curb and 167 feet from the southwest corner of Meserole Avenue and Loriner Street." and provides a photograph of the accident site clearly depicting a crack in the roadway. (P. Opp. Brow City Mot. 2 Ex. C.) On September 13, 2000, he filed a notice of claim with the City (Comm. ¶ 15; Alson Decl., Ex. A), and about one year later, he sued the City and KeySpan. invoking . . . jurisdiction and alleging causes of action under New York State law. The communication does not allege that the City received written notice of any defect on Lorimer Street at or near the site where he fell. (City Br. 2.)
On June 21, 2000, Mendelsohn's counsel wrote to the Cir requesting copies of "all prior notification[s] concerning the street including all complaints and maps for the subject area" and "all permits, contracts and cut-outs issued for this section of Lorimar [sic] Street from January 1, 1999 through June 22, 2000." (P. Opp. to KeySpan Mot., Ex. A.) In response, the City supplied counsel with, inter alia, a map delivered to it by the Big Apple Pothole and Sidewalk Protection Corporation and a permit that the City gave KeySpan Energy Delivery, Inc., authorizing work on Lorimer Street between Norman and Meserole Avenues for the one-month period from November 19 to December 18, 1999. (Id., Ex. B.)
"The Big Apple Pothole and Sidewalk Protection Committee is an organization founded by a group of plaintiffs' attorneys to comply with [New York City's] Prior Written Notice Law. The Committee sends individuals to make inspections and mark maps with alleged sidewalk and crosswalk defects and files the maps with the Prior Notification Unit of [the New York City] Department of Transportation." (City Br. 7 n. 1.)
Walter S. Stone, an employee of KeySpan, testified at his deposition that after learning of this lawsuit, KeySpan asked him to search its records for "job control reports, paving orders, and New York City permits." (Id., Ex. C at 4, 6.) Stone found that the City had issued KeySpan a permit, which expired on December 21, 1999, for work on Lorimer Street between Norman and Meserole Streets. (Id. 9-10.) He explained that according to KeySpan's records, all the actual, as opposed to merely authorized, work done by KeySpan in the vicinity of Lorimer Street where Mendelsohn fell had been on the sidewalk. (Id. 22-23.) Stone subsequently testified that "[n]one of the excavations made [by KeySpan] in 1999, under the two permits in question, were made in the roadway of Lorimer Street where plaintiff allegedly fell because the [gas] main that was being worked on was under the sidewalk, not the roadway of Lorimer." (Stone Reply Aff. ¶ 5.) No evidence indicates that KeySpan created the pothole that allegedly caused Mendelsohn's fall. (See KeySpan Br. 2; KeySpan Mot., Ex. D.)
ANALYSIS
I. Standard for Summary Judgment
Summary judgment must be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law"; an issue of fact is genuine where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 248 (1986). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor. Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).
To defeat summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated assertions" will not suffice. Scotto v. Almenas, 143 F.3d 105. 1142d Cir. 1998). Rather, the nonmoving party must "set forth specific facts showing that there as a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there no genuine issue for trial.'") (quotingFirst Nat'l Bank v. Cities Service Co., 391 U.S. 253. 25)).
II. The City's Motion
New York State law, which binds the Court in a diversity action.Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996), as construed by the New York Court of Appeals, the decisions of which bind the Court as to issues of state law. West v. Am. Tel. Tel. Co., 311 U.S. 223, 236-37 (1940), unequivocally requires that plaintiffs who sue the City for personal injuries allegedly caused by defects or hazardous conditions in municipal streets and sidewalks plead and prove that the City received prior written notice of those defects or conditions. N.Y. City Admin. Code § 7-201(c)(2); Katz v. City of New York. 87 N.Y.2d 241, 243 (1995); see also Woodson v. City of New York, 93 N.Y.2d 936, 937 (1999) (dismissing complaint after a jury verdict in plaintiffs favor where "plaintiff did not allege that the City had prior written notice of the defect" for which it was found liable). Mendelsohn concedes that his complaint does not allege that the City received prior written notice of the pothole that allegedly caused his fall, but seeks leave to replead to cure this defect. (Katz Decl. ¶ 2.)
N.Y. City Admin. Code § 7-201(c)(2) provides in relevant 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 . . . 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. . . .
While leave to replead should be "freely given when justice so requires," Fed.R.Civ.P. 15(a), leave may be denied where repleading would be futile. O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002); Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). Here, plaintiffs failure is not merely one of pleading but of proof. Discovery has been completed, and plaintiff can cite no evidence that the City received prior written notice of the alleged defective condition. Accordingly, the City moves not only for dismissal of the complaint because of a technical pleading defect, but also for summary judgment based on the absence of evidence of the required notice.
Herbert Stempel, an employee of the City's Department of Transportation, testified that his search of the Department's records for the "location in the roadway in front of 1029-1031 Lorimer Street . . . revealed no records whatsoever of the alleged defect at the accident location." (Stempel Aff. ¶ 4-5.) Under New York law, that alone may suffice to entitle the City to summary judgment. Cf.Greenberg v. McLaughlin. 662 N.Y.S.2d 100, 101 (2d Dep't 1997) (affidavits of the village clerk and superintendent "indicating that the Village had never received prior written notice of the alleged defective sidewalk" entitled the Village to summary judgment); accord, West v. Village of Mamoroneck, 570 N.Y.S.2d 985, 986 (2d Dep't 1991). But in any event, after more than two years of litigation and despite substantial disclosure by the City, Mendelsohn cannot identify any evidence that the City received prior written notification of a defect at the site of his accident. While the City produced maps, permits, and repair records for areas near the accident site, none of these reveal a defect at the spot on Lorimer Street where Mendelsohn fell (see Stempel Aff. ¶¶ 6-9), and as a matter of law, neither constructive notice nor written notice of defects near the accident site suffices to fulfill the notice requirement imposed by N.Y. City Admin. Code § 7-201(c)(2). See, e.g., Amabile v. City of Buffalo, 93 N.Y.2d 471, 475-76 (1999) (constructive notice insufficient as a matter of law); Brill v. City of New York, 759 N.Y.S.2d 346, 346 (2d Dep't 2003) ("`Big Apple' map indicating defects in the sidewalk adjacent to the area of the accident" insufficient as a matter of law: Levbarg v. City of New York, 723 N.Y.S.2d 445, 448 (1st Dep't 2001) (permit for street excavation insufficient as a matter of law); Fraser v. City of New York, 640 N.Y.S.2d 607. 607-08 (2d Dep't 1996) (repair order indicating holes in a 400-foot-long stretch of roadway insufficient as a matter of law). In fact, careful examination of the Big Apple map and the interdepartmental work orders on which Mendelsohn primarily relies confirms the conclusions in the case law cited above. The maps contain no symbols to mark roadway defects such as the one allegedly responsible for the injuries in this case, and the work orders reflect defects that were identified and corrected, and cannot be construed as written notice of existing defects.
The cases cited by Mendelsohn in opposition to the City's motion involved situations where factual disputes remained about where the relevant accidents happened and whether the prior written notices received by the City corresponded to the places so identified.E.g., Quinn v. City of New York, 761 N.Y.S.2d 231, 233 (2d Dep't 2003) (denying summary judgment where "there was conflicting testimony as to whether the defect noted on the Big Apple map . . . corresponded with the defect described by the injured plaintiff); David v. City of New York, 700 N.Y.S.2d 235, 236 (2d Dep't 1999) (reversing and remanding jury verdict for plaintiff for a new trial where factual disputes existed as to whether the Big Apple map submitted by plaintiff identified "the precise location of the defect" and "whether the alleged defect was the broken curb designated by the map"); cf. Weinreb v. City of New York, 597 N.Y.S.2d 432, 433-34 (2d Dep't 1993) (holding that even though the Big Apple map submitted by plaintiff mislabeled the precise area of the sidewalk where he fell, it sufficed to bring "the particular condition at issue to the attention of the authorities" and therefore provided the City with sufficient notice) (citations omitted). Here, Mendelsohn stated definitively that he fell somewhere on Loirmer Street, not on the sidewalk or anywhere else, and he identified the location with considerable precision. (Alson Decl., Ex. A.) The evidence he provided, including the Big Apple map, does not show a defect in the area of the roadway he identified. (Stempel Aff. ¶¶ 5-9.)
Because leave to replead would clearly be futile, the Court declines to grant it. Absent an allegation that the City received prior written notice of the defect that caused Mendelsohn to fall, or any evidence that would permit a reasonable factfinder to conclude that such notice had been received, his complaint against the City must be dismissed. See Woodson, 93 N.Y.2d at 937.
III. KeySpan's Motion
Mendelsohn sued KeySpan because before he initiated this action, he received documents from the City pursuant to the Freedom of Information Act indicating that the City issued KeySpan a "protected street opening permit" for the block on Lorimer Street where he fell. (P. Opp. to KeySpan Mot., Exs. A-B.) Now, some two years later, no evidence apart from that permit exists to suggest that KeySpan ever did any construction work in the roadway on Lorimer Street. Moreover, KeySpan has offered uncontradicted testimony that due to the location of the gas lines for whose repair the permit was issued, no opening of the roadway was required or performed. Mendelsohn argues that summary judgment should nonetheless be denied because
there is a material issue of fact presented based upon the City of New York's computerized records which specifically indicate that a street opening permit was issued for the protected street of Lorimer Street between Meserole Avenue and Norman Avenue for major gas installations to take place in November and December, 1999.
Stone testified that "[a] protected street is a street that was recently paved and restored by the City." (P. Opp. to KeySpan Mot., Ex. C at 10.)
(P. Opp. to KeySpan Mot. ¶ 12.)
The mere issuance of a permit does not provide sufficient evidence from which a rational trier of fact could conclude that KeySpan in fact performed work on the relevant area of Lorimer Street, let alone that it did so negligently and created the defect that allegedly caused Mendelsohn to fall. No testimonial or documentary evidence supports these inferences. The permit alone creates no more than the bare possibility that KeySpan negligently performed construction work that caused a defect in the roadway where Mendelsohn fell. Matsushita Elec. Indus. Co., 475 U.S. at 586. No rational trier of fact could find KeySpan liable based solely on its existence, particularly because Stone's uncontroverted testimony establishes that the work done by KeySpan pursuant to that permit involved opening only the sidewalk on Lorimer Street, not the roadway where Mendelsohn tripped and fell. (See P. Opp. to KeySpan Mot., Ex. C at 23; Stone Reply Aff. ¶¶ 3-5.) Even assuming that the existence of the permit would permit a finder of fact to disbelieve KeySpan's testimony, there is no evidence whatsoever from which a reasonable jury could conclude that KeySpan did the work negligently, or that KeySpan, rather than others who received permits to work on that street (Fegan Reply Aff. ¶ 15), or some other cause, was responsible for creating the crack over which plaintiff allegedly tripped. Hence, "there is no `genuine issue for trial,'"Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968)), and KeySpan's summary judgment motion must be granted.
Mendelsohn makes much of the existence of two permits and Stone's evident ignorance of the second one at the time of his deposition. (See P. Opp. to KeySpan Mot. ¶¶ 8-11). In his reply affidavit, Stone thoroughly explains the reason for his initial failure to discover the second permit. (Stone Reply Aff. ¶¶ 2-10.) Mendelsohn introduced no evidence to call that explanation into doubt, and the argument merits no further discussion.
It should be noted, moreover, that wholly apart from this argument, the complaint would have to be dismissed against one of the KeySpan defendants, KeySpan Corporation, because it is undisputed that whatever work was done was done by KeySpan Energy Delivery, Inc. rather than by its parent company, KeySpan Corporation. Mendelsohn has provided no plausible theory of liability with respect to KeySpan Corporation.