Opinion
Index No. 514250/2016
02-10-2020
JAROSLAW MIKOLAJCZYK, Plaintiff, v. CITY OF NEW YORK, Defendant(s).
NYSCEF DOC. NO. 45 At an IAS Term, Part 7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 10th day of February 2020.
Decision & Order
MOT. Seq. 2
Hon. Rosemarie Montalbano
Recitation, as required by CPLR §2219 [a], of the papers considered in the review of defendant's motion for summary judgment:
| Papers Numbered | |
|---|---|
| Notice of Motion and Affidavit | 1 |
| Order to Show Cause and Affidavits Annexed | __________ |
| Answering Affidavits | 2 |
| Replying Affidavits | __________ |
| Other | __________ |
Defendant City of New York ("the City") moves of an order pursuant to CPLR 3212 summarily dismissing the present action as against it on the ground that plaintiff has failed to plead or prove prior written notice of the alleged sidewalk defect which plaintiff claims caused him to fall and sustain injuries. Plaintiff opposes arguing that defendant failed to meet its prima facie burden because defendant had prior written notice of and created the alleged sidewalk defect.
Procedural History
Plaintiff, Jaroslaw Mikolajczyk, seeks damages for injuries he sustained on June 10, 2015, when he tripped and fell while rollerblading on the sidewalk abutting Prospect Park West near its intersection with Vanderbilt Street, toward the entrance to Prospect Park in Kings County. On August 15, 2016, plaintiff commenced this action by filing a summons and complaint which named the City of New York as the sole defendant. The complaint alleges, inter alia, that the accident was caused because the City was negligent in its ownership, operation, management, maintenance and control of the subject sidewalk, in causing permitting and/or allowing said sidewalk to become and remain in a defective unsafe and dangerous condition. Discovery in the action proceeded. Between October 11, 2016, and May 14, 2018, several preliminary conference orders were entered into. Thereafter, on May 31, 2019, plaintiff filed his Note of Issue and Certificate of Readiness. On or about September 27, 2019, the City moved for summary judgment. Plaintiff opposed.
In support of its motion, the City submits the affidavits of Department of Transportation paralegals Albert Belfari and Ronny Guerrero. Both affidavit state that searches of Department of Transportation: corresponding record of permits, applications for permits, corrective action requests, notices of violations, inspections, contracts, maintenance and repair orders, complaints, resurfacing/milling records, and Big Apple Maps were performed, for a period of two years prior to the date of the alleged incident. Defendant points out that both affidavits maintain that no prior written notice of the allege defective condition was found. Defendant also submits that a clear reading of the Big Apple Maps demonstrate the City did not have prior written notice and that there were no Big Apple Maps submitted to the Dept. of Transportation for the sidewalk abutting Prospect Park West.
In opposition, plaintiff argues the City failed to submit evidence in admissible form to support their argument. The opposition also asserts that the Big Apple Map exchanged between the parties demonstrates several defects in the area of the defect at issue. Further that the City's motion fails to specifically refer to the alleged location of the sidewalk alleged in the complain. And lastly that, contrary to the City's assertions, permit No. B1-2014265-A51, issued on behalf of the City, "to open the sidewalk" at 147 Prospect Park Southwest is proof that work was done "exactly" where plaintiff fell.
Discussion
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v. New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Perez v City of New York, 43 Misc 3d 1217(A) [ Sup Ct 2014 ], affd sub nom Epperson v City of New York, 133 AD3d 522 [1st Dept 2015]; citing Zuckerman at 562).
Pursuant to the Administrative Code of the City of New York § 7-201[c][2], known as the "Pothole Law", no action may be maintained against the City as a result of a defect in or obstruction to a sidewalk or roadway unless it had received written notice of the condition at least fifteen (15) days prior to the occurrence and failed to remedy it. The prior notice requirement is a condition precedent which must be pled and proven to maintain an action against the City. (Stone v City of New York, 16 Misc 3d 1134(A) [ Sup Ct 2007 ]; Bruni v. City of New York, 2 NY3d 319, 324 [2004]; Min Whon Ock v. City of New York, 34 AD3d 542, 542 [2d Dept 2006]; Katz v. City of New York, 87 NY2d 241, 243 [1995].) Such prior written notice provisions are to be strictly construed (Katz, 87 NY2d at 243). "Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. ["Big Apple Maps"] and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon" (Williams v City of New York, 59 Misc3d 1213(A) [ Sup Ct 2018 ]).
The City can establish that no prior written notice was filed through an affidavit from an appropriate official, that a search of the of the Department of Transportation's records was conducted and that there was no prior written notice of the defective condition (Campisi v. Bronx Water & Sewer Service, Inc., 1 AD3d 166, 766 NYS2d 560 [1st Dept 2003]). The affidavit need only indicate that the official has caused a search of the department's records to be made and that no written notice of the defective condition was found (Cruz v City of New York, 218 AD2d 546, 547 [1st Dept 1995]; CPLR 4518, 4520; citing Goldberg v Town of Hempstead, 156 AD2d 639, 549 NYS2d 138; Wisnowski v City of Syracuse, 213 AD2d 1069, 624 NYS2d 329). The mere issuance of a permit... is not sufficient to provide the requisite written notice of a roadway defect (Marceca v City of New York, 5 Misc3d 936, 787 NYS2d 640 [ Sup Ct, Kings Co 2004 ]).
The City has established, prima facie, its entitlement to judgment as a matter of law by submitting affidavits of employees of the Department of Transportation for the City of New York stating that no corresponding for records of notices of defective conditions were found. Those affidavits aver that the Department of Transportation records show 5 permits, 2 - 3 applications, 1 Office of Construction Mitigation and Coordination, 4 inspections, 1 complaint and 3 maps. All the maps were "the most recent served maps on the DOT, which were at least fifteen days prior to the date of the incident." All evidencing that defendant did not have prior written notice of the alleged defect. The Big Apple Map(s) exchanged between the parties do not include markings that would indicate prior written notice.
The sidewalk opening permit plaintiff claims to be evidence that defendant created the subject condition is a permit to work on tree pits in front of address 147 Prospect Park Southwest. Plaintiff's claimed defect is on the sidewalk abutting Prospect Park Southwest. 147 Prospect Park Southwest is across the street from the sidewalk abutting Prospect Park Southwest and the location of the alleged defect. Moreover, "the City's issuance of a work permit does not constitute evidence of prior written notice" (Gee v City of New York, 304 AD2d 615, 617 [2d Dept 2003]; citing Levbarg v. City of New York, 282 AD2d 239, 723 NYS2d 445; Meltzer v City of New York, 156 AD2d 124, 548 NYS2d 26).
Accordingly, the City's motion for summary judgment is granted. The case is dismissed.
This constitutes the decision and order of the Court. Dated: February 10 , 2020
Brooklyn, NY
/s/ _________
Hon. Rosemarie Montalbano
J. S. C.