Opinion
161877/2014
07-30-2020
Joanne MULLEN, Plaintiff, v. The CITY OF NEW YORK, Defendant.
The following e-filed documents, listed by NYSCEF document number, were read on this motion to dismiss: 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47.
Plaintiff Joanne Mullen commenced this action against the City of New York (the "City") to recover for injuries allegedly sustained on September 4, 2013 when Plaintiff tripped and fell on a "large gap between the stone and cement portions" of the sidewalk located at the northeast corner of the intersection of Nassau and Liberty Streets, New York, New York (the "Defect"). The City now moves: (1) pursuant to CPLR 3211(a)(7), to dismiss for failure to plead prior written notice; more specifically, the City argues that it was only informed via a NYC.gov complaint of a defect at the intersection generally, not the specific corner where Plaintiff fell; and (2) pursuant to CPLR 3212, for summary judgment dismissing the Complaint, arguing that the City did not receive prior written notice of the Defect, and did not cause or create the Defect. Plaintiff opposes, and cross-moves, pursuant to CPLR 3025(c), to amend the Complaint to conform to the evidence; that is, to reflect that prior written notice of the Defect had been submitted via NYC.gov. For the reasons below, the Court denies the City's motion, and grants Plaintiff's cross-motion to amend.
BACKGROUND
On February 10, 2014, Plaintiff appeared for a General Municipal Law (GML) § 50-h hearing (NYSCEF 27/City Exh E ["50-h"] ). Plaintiff testified that on September 4, 2013, she fell when her foot became caught in a wide gap in the curb line of the northeast corner of Nassau and Liberty Streets, in front of the Federal Reserve building (50-h 11, et seq.). Based on Plaintiff's pleadings and testimony, the City conducted a Department of Transportation ("DOT") sidewalk record search for the location of Liberty Street between Nassau and William Streets, and for Nassau Street between Liberty Street and Maiden Lane in the two years prior to the subject incident (NYSCEF 29-30/City Exhs F, G ["DOT Search"] ). Henry Williams, a DOT employee, personally conducted a two-year search for permits, applications, corrective action requests, notices of violation, inspections, contracts, maintenance and repair orders, complaints, resurfacing and milling records, and Big Apple Maps, which resulted in the production of numerous records (NYSCEF 31/City Exh H ¶¶ 3-5 ["Williams Aff"] ). Another DOT employee, Danny Garcia, also conducted a two-year search for maintenance, inspection, repair, work order, and complaint records for "the pedestrian ramps located at Liberty Street and Nassau Street (Corner of 19 Liberty Street)" (NYSCEF 32/City Exh I ¶ 3["Garcia Aff"] ). Garcia's search produced three complaints (Garcia Aff ¶ 3; NYSCEF 33). One such complaint was an anonymous NYC.gov complaint submitted on August 6, 2013, approximately a month before Plaintiff's September 4. 2013 fall, regarding a "broken pedestrian ramp" at the intersection of Liberty and Nassau Streets (SRNo. 1-1-878853091; NYSCEF 42). The NYC.gov complaint was not investigated further because, according to the notes, "[DOT] requires an in-front of street address or an intersection corner direction to perform an inspection" (id. ). DOT record searcher Alison Boles testified for DOT regarding both searches (NYSCEF 34/City Exh K ["Boles EBT"].
CONTENTIONS
In support of its motion, the City argues: (1) that the Complaint fails to plead that the City received prior written notice of the Defect; (2) that the City established its prima facie burden because its record searches did not reveal prior written notice of the Defect; and (3) that no issue of fact exists as to whether the City caused or created the Defect. In opposition and in support of the cross-motion, Plaintiff argues that the City has not met its prima facie burden, and that amendment of the Complaint to allege prior written notice should be permitted to conform to the evidence produced in discovery. In reply, the City argues that amendment should be rejected as untimely because it was not asserted prior to the motion for summary judgment, and that neither the Complaint nor Street View photos submitted by Plaintiff constitute prior written notice.
DISCUSSION
I. City's motion to dismiss ( CPLR 3211 )/Plaintiff's motion to amend ( CPLR 3025 )
The City first argues that the Complaint should be dismissed because it fails to plead that the City received prior written notice of the Defect, and cannot be asserted for the first time in opposition to a motion for summary judgment. Indeed, no action may be maintained against the City for injuries arising from a dangerous, defective, unsafe, or obstructed condition on City streets or sidewalks unless the City received prior written notice of such condition and failed to repair it within 15 days of such notice ( N.Y.C. Admin. Code § 7-201 [c] [2] ). "Failure to ‘plead and prove’ such prior written notice requires dismissal of the complaint" ( Kales v. City of NY , 169 A.D.3d 585, 585 [1st Dept. 2019], citing Katz v. City of NY , 87 N.Y.2d 241, 243 [1995] ).
Plaintiff essentially concedes a failure to plead that the City received sufficient prior written notice of the defect by cross-moving to amend the pleadings to conform to the evidence: (1) Plaintiff's 50-h testimony that she fell at the northeast corner of Nassau and Liberty Streets (50-h 7:14-18); (2) photos introduced at the 50-h hearing which depict the Defect (NYSCEF 44/Pl Exh B); (3) an anonymous complaint submitted on the City's website referencing a defective pedestrian ramp at Liberty and Nassau Streets; and (4) two apparently identical Google Maps/Street View images depicting the subject intersection and alleged defect — one before the subject incident in August 2012 and the other in July 2018 (NYSCEF 43/Pl Exh D).
The City closed this complaint as lacking sufficient information (e.g. an in-front of street address or intersection corner direction) (NYSCEF 42/Pl Exh C)
Under CPLR § 3025(b), a party may amend a pleading "at any time by leave of court", and "[l]eave shall be freely given upon such terms as may be just" ( CPLR 3025[b] ). Moreover, "[o]n a motion for leave to amend a pleading, movant need not establish the merit of the proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit" ( Cruz v. Brown , 129 A.D.3d 455 [1st Dept. 2015], citing Miller v. Cohen , 93 A.D.3d 424 [1st Dept. 2012] ). Similarly, under CPLR 3025(c), "[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances."
In considering a motion to amend, courts "consider such factors as the delay in moving, surprise, and significant prejudice, the latter being the foremost consideration" (see Rothstein v. City Univ. of New York , 194 A.D.2d 533, 534 [2d Dept. 1993], citing Murray v. City of NY , 43 N.Y.2d 400, 405 [1977] ). "Absent prejudice, courts are free to permit amendment even after trial" ( Murray , 43 N.Y.2d at 405 ). "Prejudice is more than the mere exposure of the party to greater liability" ( Kimso Apartments, LLC v. Gandhi , 24 N.Y.3d 403, 411 [2014] ). "Rather, there must be some indication that the party has been hindered in the preparation of the party's case or has been prevented from taking some measure in support of its position" (id. ). The party opposing amendment bears the burden of establishing prejudice (id. ).
Courts have, as late as trial, permitted minor amendments to, for example, correct misnomers or misidentified parties ( Perrin v. McKenzie , 266 A.D.2d 269, 270 [2d Dept. 1999] [curing a misnomer in description of defendant]; see also Castro v. Woolworth Corp. , 298 A.D.2d 216, 216 [1st Dept. 2002] [permitting substitution of subsidiary] ). Courts have also permitted evidence supporting new theories of liability, but only where "such proof necessarily flows from the information conveyed in the pleadings" and, importantly, "the defendants should have been aware of the basis thereof"—for example, if a related theory had been raised before in a different form which should reasonably have alerted the defendant (see e.g. Boyer v. Kamthan , 130 A.D.3d 1176, 1178 [3d Dept. 2015] [permitting evidence at trial in support of theory, not explicitly set forth in the complaint or the bill of particulars, that employee erroneously interpreted CT scan where complaint "generally alleges" that the employer was directly and vicariously negligent, and where plaintiff's expert disclosures and affidavit in opposition to summary judgment motion referenced CT scan ]; cf Assante v. City of NY , 173 A.D.2d 430, 431 [2d Dept. 1991] [affirming denial of amendment where plaintiff attempted, during trial, to introduce "second collision" theory based on lack of seatbelts instead of originally-pleaded theory alleging lack of safety features such as a "tripping mechanism"]; cf Monmasterio v. NY City Hous. Auth. , 39 A.D.3d 354, 356 [1st Dept. 2007] [dismissing new inadequate security claim, held to "differ substantially" from existing inadequate lighting claim] ). Most relevant here, a party has been granted leave to amend pleadings on the eve of trial to allege prior written notice, "where such amendment did not prejudice or surprise defendant" ( Reyes v. City of NY , 63 A.D.3d 615, 616 [1st Dept. 2009] [plaintiff alleged actual notice in initial pleadings, and served notice to admit attaching Big Apple Map at least five years prior to trial] ).
While the City correctly argues in reply that new theories of liability are generally not permitted after the expiration of the statute of limitations, and therefore that Plaintiff's attempted amendment is untimely, prior written notice is not a new theory of liability where prior pleadings allege actual notice ( Cruzado v. City of NY , 80 A.D.3d 537, 538 [1st Dept. 2011] [finding no prejudice or surprise where notice of claim, complaint, and bill of particulars alleged actual notice] ). Here, Plaintiff invokes actual notice in the Bill of Particulars (NYSCEF 26 ¶¶ 19, 25).
Moreover, Plaintiff's attempted amendment can hardly come as a surprise; in most if not all of its motions for summary judgment relating to sidewalk trip-and-fall cases, the City—as it must—regularly argues a lack of prior written notice and that the City did not cause or create the defect, the latter serving as an exception to the former (see e.g. Konstantinidis v. The City of NY , NY County Index No. 150612/2018, NYSCEF 31 [City Affirm ]; 2020 NY Slip Op 30459[U] ; see also Wald v. City of NY , 115 A.D.3d 939, 940-41 [2d Dept. 2014] ["Since the plaintiffs alleged in their complaint that the City created the alleged defect, the City was obligated to establish, as part of its prima facie showing, both that it did not receive prior written notice of the alleged defect, and that it did not create the alleged defect through an affirmative act of negligence."] [emphasis added] ). Indeed, the City, as the actual keeper of such notices pursuant to N.Y.C. Administrative Code § 7-201(c)(3), is the entity best positioned to verify whether such notice was received. Accordingly, Plaintiff's cross-motion to amend is granted and, consequently, the branch of the City's motion seeking to dismiss pursuant to CPLR 3211(a)(7) is denied.
II. City's motion for summary judgment ( CPLR 3212 )
Summary judgment is a "drastic remedy" and will only be granted in the absence of any material issues of fact (id. ). To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact ( Zuckerman v. City of NY , 49 N.Y.2d 557 [1980] ; Jacobsen v. New York City Health and Hospitals Corp. , 22 N.Y.3d 824 [2014] ; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320 [1986] ). The movant's initial burden is a heavy one; on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party ( Jacobsen , 22 N.Y.3d at 833 ). If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers ( Winegrad v. New York Univ. Med. Center , 4 N.Y.2d 851, 853 [1985] ). However, if the moving party meets its burden, the burden shifts to the party opposing the motion to establish, by admissible evidence, the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for the failure to do so ( Zuckerman , 49 N.Y.2d at 560 ; Jacobsen , 22 N.Y.3d at 833 ; Vega v. Restani Construction Corp. , 18 N.Y.3d 499, 503 [2012] ).
The City argues that it established its prima facie burden because its record searches did not reveal prior written notice of the Defect. In opposition, Plaintiff argues that an August 6, 2013 anonymous NYC.gov complaint, (NYSCEF 42 ), constitutes prior written notice under the Pothole Law ( N.Y.C. Admin. Code § 7-201 ). In reply, the City argues that the NYC.gov complaint does not satisfy the statutory "prior written notice" requirement because it does not specify the precise location of the Defect.
To the extent that Plaintiff does not dispute the City's initial argument that permits, corrective action requests, inspections, and Big Apple maps did not reveal anything which could constitute prior written notice, the Court, like Plaintiff, focuses only on the NYC.gov complaint. However, by failing to oppose the City's factual showing of lack of prior written notice as to everything except the NYC.gov complaint, plaintiff is "deemed to have admitted the facts in the moving papers, and, in effect, made a concession that no question of fact exists as to the City's lack of liability as to the other documents" (Esponda v. Ramos-Ciprian , 179 A.D.3d 424, 426 [1st Dept. 2020] ).
A. Whether any NYC.gov complaint can constitute prior written notice
N.Y.C. Admin. Code § 7-201 [c] [2] provides that
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, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, 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 or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.
As an initial matter, the Court disagrees with the City's contention that a complaint made through NYC.gov cannot serve as "prior written notice." It is true that citizen complaints, complaints to the City's 311 system, and telephonic complaints, even if reduced to writing, do not constitute prior written notice under the Pothole Law ( Lopez v. Gonzalez , 44 A.D.3d 1012, 1012 [2d Dept. 2007] ; Kapilevich v. City of NY , 103 A.D.3d 548, 549 [1st Dept. 2013] ; Dalton v. City of Saratoga Springs , 12 A.D.3d 899, 901 [3d Dept. 2004] ). Nevertheless, as one court has summarized, this is "simply the result of the duty imposed upon courts to strictly interpret the language of the prior written notice provision, which in the case of [NY C. Admin Code] § 7-201 requires ‘written notice of the defective, unsafe, dangerous or obstructed condition’ " ( Perez v. City of NY , 43 Misc 3d 1217(A) [Sup. Ct. NY County 2014], affd sub nom. Epperson v. City of NY , 133 A.D.3d 522 [1st Dept. 2015] ).
However, as Plaintiff argues in reply, and as at least one other New York court has discussed, the State Technology Law (STL) defines "electronic record" as "information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities," and that "[a]n electronic record shall have the same force and effect as those records not produced by electronic means" [STL §§ 302(2); 305(3) ]. Such an electronic record is admissible in evidence [ Civil Practice Law & Rules § 4518(a) ; Sheikh v. City of NY , 53 Misc 3d 1214(A) [Civ Ct Richmond County 2016] ). Indeed, in recent litigation regarding the City's compliance with the recordkeeping provisions of the Pothole Law, "[t]he City assert[ed] that it converted to electronic databases which are a sufficient alternative system for determining whether prior written notice was received by it" (Epperson , 133 at 522). Thus, the NYC.gov complaint constitutes a "writing" which, depending upon its substance, could constitute "prior written notice" under the Pothole Law.
B. Whether this NYC.gov complaint constitutes prior written notice
The Pothole Law does not explicitly define the required specificity of the prior written notice. Generally, "the awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident" ( Vargas v. City of NY , 172 A.D.3d 552, 553 [1st Dept. 2019] [defendant's alleged negligent repair of other defects on the same road did not raise an issue of fact as to whether defendant had prior notice of the subject defect]; Jagopat v. City of NY , 110 A.D.3d 507, 508 [1st Dept. 2013] [Complaints about "missing grates on other parts of Bruckner Expressway will not establish that [the City] had the required written notice of the specific defect alleged in the notice of claim to have caused her injury"] ). However, "since the prior notice law is in derogation of the common law and must be strictly construed against the City, a notice is sufficient if it brought the particular condition at issue to the attention of the authorities" ( Almadotter v. City of NY , 15 A.D.3d 426, 427 [2d Dept. 2005] ; Holt v. Tioga County , 95 A.D.2d 934, 935 [3d Dept. 1983] ["While the local law is silent as to the specificity required of the prior notice, it should at the very least be such that it would probably have brought the particular condition at issue to the attention of the authorities "] [emphasis added]; cf Galassi v. County of Nassau , 6 Misc 3d 136(A) [App Term 2005] ["a generalized complaint about the condition of the roadway is insufficient to constitute prior written notice of a specific defect."] ).
Generally speaking, factual disputes as to whether a document constitutes sufficient notice of a particular defect are for a jury ( Yousef v. Kyong Jae Lee , 103 A.D.3d 542, 543 [1st Dept. 2013] ["The Big Apple map submitted by the City includes symbols reflecting an extended section of broken, misaligned, or uneven curb, and an extended section of raised or uneven sidewalk in the area where plaintiff allegedly fell . Factual disputes as to whether the map gave notice of the particular defect that caused the accident are for a jury."] [emphasis added]; accord Reyes v. City of NY , 63 A.D.3d 615, 615 [1st Dept. 2009] ["Although the awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident, where there are factual issues as to the precise location of the defect that caused a plaintiff's fall and whether the defect is designated on the map , the question should be resolved by the jury."]; Quinn v. City of NY , 305 A.D.2d 570, 571 [2d Dept. 2003], as amended [Sept. 26, 2003] [holding that where there was conflicting testimony as to whether the defect noted on the Big Apple map.., a "raised portion of sidewalk significant to cause hazard" corresponded with the defect described by the injured plaintiff and her grandson, trial court properly left it to the jury]; Alexander v. City of NY , 59 A.D.3d 650, 651-52 [2d Dept. 2009] ["Where the nature and location of the roadway defect that caused the plaintiff's injuries are disputed, the issue of whether the defendant had prior written notice is for the jury to decide."] ). The salient issue is whether a jury could reasonably conclude that the City was made aware, in writing, of a defect "in the vicinity of where plaintiff fell" ( Sondervan v. City of NY , 84 A.D.3d 625 [1st Dept. 2011] ["Disputes as to whether the location and nature of the defect are sufficiently portrayed so as to bring the condition to the municipality's attention involve factual questions appropriately resolved at trial."] ).
Here, the location of Plaintiff's fall and the defect alleged to have caused it are not in dispute; rather, the parties dispute only whether the NYC.gov complaint's failure to name a specific intersection renders it too vague to serve as sufficient notice to the City (see Donnellan v. City of NY , 112 A.D.3d 780, 781 [2d Dept. 2013] ["To the extent that there are factual disputes regarding the precise location of the defect that allegedly caused the plaintiff's fall, and whether the alleged defect is designated on the site inspection report, the question should be resolved by a jury."] ).
There are no precise boundaries for a written notice's particularity; some courts have held—and this Court agrees—that a notice should, at minimum, reasonably enable the City to conduct a geographically-limited investigation for a particular type of defect (see e.g. De Luca v. City of NY , 182 Misc 583, 584 [Sup. Ct. Kings County 1944] [notice specifying place of accident as "the 17th Street station of the Fourth Avenue Line in the Borough of Brooklyn, City and State of New York" rather than proper name (Prospect Avenue Station) was sufficiently specific to permit investigation]; Freligh v. City of NY , 265 AD 967 [2d Dept. 1942] [notice provided "practical certainty as to satisfy purpose of [notice statute]," even where it erroneously listed premises on St. Marks Avenue, where notice identified southwest corner of Vanderbilt and St. Marks Avenues, because "of the small area covered by the places mentioned in the notice"); cf Marino v. City of NY , 277 AD 1003, 1003 [2d Dept. 1950] [notice too vague and fails to permit the municipal authorities to locate the correct location where notice identified a defect "at or about Canal Street Station" in Manhattan "where said station consists of three separate and distinct train levels, each level carrying trains of separate lines, each level with platforms to accommodate trains operated in two directions, running under different streets, and distance from one such station to another is almost three blocks"] ). Indeed, even outright errors have been excused so long as authorities can reasonably identify the location ( Schwartz v. City of NY , 250 NY 332, 334 [1929] [notice sufficient where it identified St. Mary's Park, despite listing the wrong intersection for the park]; Weinreb v. City of NY , 193 A.D.2d 596, 597 [2d Dept. 1993] [holding that Big Apple maps gave the City of New York sufficient notice even where the maps incorrectly designated the property known as 1448 58th Street as 1450 and 1452 58th Street, which do not exist, because the City, "upon inspection, would have been able to locate the defective condition which caused the plaintiff's injuries by comparing the location with the Big Apple map."] ).
The NYC.gov complaint here can be differentiated from notices which, for example, "merely stated that the accident occurred at First Avenue between 105th and 106th Streets in New York City" ( Mitchell v. City of NY , 131 A.D.2d 313, 315 [1st Dept. 1987] ). Whereas such a notice was held deficient "in view of the lack of reference to any address on the street, which side of the street the accident occurred on, or even if the accident occurred in the street or on the sidewalk," the universe of possible defects was massive, the notice having ambiguously described the accident occurring "while plaintiff was debarking from a bus" and the defect(s) as "dangerous, defective and trap-like conditions of the public street" ( Mitchell v. City of NY , 131 A.D.2d 313, 315 [1st Dept. 1987] ; see also Ortsman v. Town of Oyster Bay , 178 A.D.2d 588, 589 [2d Dept. 1991] [Prior notice of claim for another action indicating defective condition on basketball court did not constitute prior written notice of plaintiff's injuries on same basketball court where prior defect "could have been anywhere on the basketball court."]; cf Harper v. City of NY , 129 A.D.2d 770, 771 [2d Dept. 1987] [description of "Crown Street and New York Avenue" failed to describe the location of the alleged defect with sufficient particularity to enable the defendant to conduct a proper investigation and otherwise assess the merits of the plaintiff's claim, and plaintiff, over a multi-year period, provided three different descriptions of the defect] ).
There were fewer possibilities here: a "broken pedestrian ramp"—in other words, a very particular type of defect—at one of only a few possible locations: the four corners of Nassau and Liberty Street in Manhattan, each a short distance from, and within view of, the other. The basis for DOT's unilateral determination that it required "an in-front of street address or an intersection corner direction to perform an inspection," and therefore its refusal to conduct that inspection, is not clear from this record, and in any event that determination has no impact upon whether the complaint itself constitutes prior written notice. Because that judgment is best left to a jury, summary judgment on that issue is denied. Finally, because the City has failed to demonstrate that it lacked prior written notice, it would be inappropriate, at this juncture, to address an exception to the prior written notice requirement: whether the City caused or created the Defect.
CONCLUSION/ORDER
For the reasons above, it is
ORDERED that the City's motion to dismiss and for summary judgment is DENIED ; and it is further
ORDERED that Plaintiffs cross-motion to amend is GRANTED , and the Complaint is deemed amended to assert that the City had prior written notice of the subject defect by virtue of the NYC.gov complaint in Plaintiff's Exhibit C (NYSCEF 42 ); and it is further
ORDERED that Plaintiff shall, within 30 days, e-file and serve a copy of this order with notice of entry upon the City; and it is further
ORDERED that within 60 days, the parties shall confer on outstanding discovery and e-file a discovery stipulation to be so-ordered and/or request a discovery conference with the Court.
This constitutes the decision and order of the Court.