Opinion
113690/2006.
Decided December 30, 2010.
John E. Boneta, Esq., McMahon, McCarthy Verrelli, Bronx, NY, for Plaintiffs.
Michael A. Cardozo, Corporation Counsel of the City of New York, BY: Annette Bertulfo, Esq., New York, NY, for the City of New York.
Wallace D. Gossett, Esq., By: Jane Shufer, Esq., Brooklyn, NY, for defendants New York City Transit Authority, Metropolitan Transportation Authority, and Manhattan and Bronx Surface Transit Operating Authority.
In this trip and fall action, defendant City of New York moves to dismiss the complaint pursuant to CPLR 3211 (a) (7), for failure to state a cause of action. The City also seeks an order against defendant New York City Transit Authority (NYCTA) granting the City immediate indemnification and defense.
BACKGROUND
Plaintiffs commenced this action on September 22, 2006 against NYCTA, the "Metropolitan Transit Authority," MABSTOA, the New York City Department of Transportation (DOT), and the City of New York. The City and DOT apparently answered the complaint on or about December 28, 2006. NYCTA, MABSTOA, and the Metropolitan Transportation Authority (collectively, the Authorities) apparently answered the complaint on or about September 6, 2006.
The notice of claim alleges that
"At approximately 1 pm on September 22, 2005, Claimant Yudith Ortiz was walking west on Grand Street at its intersection with Essex Street, when she was caused to fall in a pothole surrounding the manhole cover located at approximately 20 feet from the southeast corner of Grand Street and Essex Street and 25 feet from the southwest corner of Grand and Essex Street. . . .Claimant was caused to fall and sustain serious injuries as herein alleged due to the negligence of the defendants . . . in their ownership, operation, maintenance, management, and control of the aforesaid street site."
Bertulfo Affirm., Ex A. According to the notice of claim, the manhole cover was labeled "NYRT" and "RTS." Id.
Plaintiffs filed the note of issue on April 8, 2010. According to an affidavit of service, the City and DOT made their motion on August 6, 2010. The Authorities moved to strike the note of issue, among other things, which motion was resolved by a so-ordered stipulation dated August 19, 2010. The stipulation provided that "NYCTA and City are to have their times extended to move for summary judgment to 60 days after completion of all IMEs. Good cause is shown for the extension because the nature and extent of the injuries may bear on the mechanism of the injuries, thus, bearing liability."
DISCUSSION
The City's Motion to Dismiss and for an Order of Indemnification and Defense against NYCTA
Pursuant to CPLR 3211 (a) (7), the City moves to dismiss the complaint, arguing that plaintiffs did not plead in their notice of claim that the City had caused and created the alleged roadway condition, that there is no testimonial or documentary evidence to establish that the City affirmatively created the subject roadway condition, and that the City had no duty to repair the alleged defective condition.
Although the notice of claim does not specifically allege that the City caused or created the alleged pothole in the street surrounding a manhole that caused Ortiz to fall, the allegations of the notice of claim, which are quoted above, are sufficiently detailed to encompass such a "cause and create" theory of liability. Plaintiffs allege that the Ortiz was cause to fall "due to the negligence of the defendants . . . in their ownership, operation, maintenance, management and control of the aforesaid street site."
The City's remaining arguments that it did not create the roadway condition, and that it had no duty to repair the alleged pothole by virtue of 34 RCNY § 2-07 (b) (1), are factual arguments that may not be considered on a motion to dismiss. To establish that 34 RCNY § 2-07 (b) (1) would apply in this case, the City would have to submit factual evidence that the alleged defect is within 12 inches of the manhole cover at issue in this litigation, and that the Authorities owned the manhole cover in the street.
34 RCNY § 2-07 (b) (1) states:
"The owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware."
The notice of motion indicates that an order dismissing the complaint and all cross claims as against the City was sought "pursuant to CPLR § 3211 (a) (7)." The second branch of the City's motion, which seeks an order, did not cite any CPLR provision. The words "summary judgment" do not appear anywhere in the City's moving papers, and the City does not cite the standards of summary judgment. Therefore, the Court concludes that the City clearly intended the first branch of the motion to be a motion to dismiss, not a motion for summary judgment.
Were this Court to convert this motion to dismiss to a motion for summary judgment (which would be permissible on notice to the parties [CPLR 3211 (c)] within the Court's discretion), summary judgment would have to be denied because of apparent triable issues of fact as to whether the City had created the alleged pothole surrounding the manhole. Plaintiffs submit photographs apparently depicting a manhole cover stamped NYRT, with a pothole around the manhole cover, and the photographs apparently show that the manhole cover is below the grade of the roadway. Boneta Affirm., Ex 6. Plaintiffs contend that the pothole was created during repaving of the street, due to the City's alleged failure to raise the manhole cover at issue to the level of the roadway. To support their contention, plaintiffs rely upon the deposition testimonies of Tonya Palmer and Joseph Ajar.
At her deposition, Palmer testified that she was currently employed as a Highway Repairer in DOT's Arterial Division, and that, prior to about May 6, 2006, she held the title of Assistant Highway Repairer and Highway Repairer in DOT's Street Maintenance Division, the division which, according to Palmer, was responsible for filling in potholes in streets. Boneta Affirm., Ex 9 [Palmer EBT], at 8-10. According to Palmer, the Street Maintenance Division would work together with the "Ring Gang," another part of DOT "responsible for lifting manhole cover heads." Id. at 23. Palmer testified that "if it [the manhole] needed to be raised for the height of asphalt, they would raise it by using aluminum rings." Id.
At his deposition, Joseph Ajar testified that he previously served as a supervisor in the Street Maintenance Division when Ortiz's alleged trip and fall occurred. Boneta Affirm., Ex 8 [Ajar EBT], at 8. Ajar testified that he was shown a photograph before his deposition, purportedly of the manhole cover where Ortiz claimed to have tripped and fallen. Ortiz testified,
"Well, it looked like it could have possibly been a ring missing out of it or it could have been damaged, and it appeared to be lower than the existing roadway.
Q.And if you could please explain what you mean by a missing ring.
A.Well, inside a casting for a utility, there is a ring that gives whoever needs to get in there accessbility. Over the years, if the street is paved, what they have to do is, they have to raise the casting. Sometimes they would raise the casting by breaking the whole area out and reblocking the casting with concrete blocks. That's one way of doing it.
Another way of doing it is to simply pull the manhole cover out and inserting what they call a ring. Basically it looks like a ring you would put on your finger, and they come in different heights from one inch to two inches. And that ring would be inserted into the casting, and the head [the access cover] would be put back on so when they paved the street they would be able to be flush with the roadway."
Id. at 10-12. At his deposition, Ajar also looked at a photograph of a manhole cover stamped "NYRT," and testified:
"We don't have anything this small in all my years of working in Street Maintenance. We never had a ring that would accommodate a manhole of this diameter . . . Therefore, we could never raise this by inserting a ring in it, and we never chop the area out and raise it with bricks like I mentioned earlier. We don't do that. We never have done that.
Usually in a case like this, when we pave, if we come across a utility that we can't put a ring in, whether it's because we don't have a ring or the casting that that manhole head itself sits in, we would put a brick in there on top of it to mark it and we would bury it. By burying it, we would pave right over it. And the utility would be notified, and they would be given the measurements and the location of where it is located, and it would be their responsibility to come out and to raise it to the grade of the new pavement."
Id. at 15-16. Given the deposition testimonies of Palmer and Ajar, and the photographs depicting the manhole cover stamped NYRT with a pothole around it, the Court would have found a triable issue of fact as to whether the City did not raise the manhole cover during repaving of the street in question. Although plaintiffs have not demonstrated that pothole itself occurred during street repaving, the Court would not have been able to determine from the record that the height differential between the manhole cover and the roadway that could have been created during City's successive street repaving was, as a matter of law, not a substantial factor in causing Ortiz's alleged fall.
Turning to the other branch of the City's motion, the City seeks an order granting the City "immediate indemnification and defense" from NYCTA pursuant to a lease dated June 1, 1953, as amended, between the City and NYCTA (Lease). Section 6.8 of the Lease states:
"The Authority covenants that, during the term of this Agreement, it shall be responsible for the payment of, discharge of, defense against, and final disposition of, any and all claims, actions or judgments, including compensation claims and awards and judgments on appeal, resulting from any accident or occurrence arising out of or in connection with the operation, management and control by the Authority of the Leased Property."
Bertulfo Affirm., Ex H, at 13. Section 1.3 of the Lease defines "Leased Property" as "the transit facilities and any other materials, supplies, and property incidental to or necessary for the operation of such transit facilities referred to in Section 2.1 of Article II hereof. . ." Id. at 2.
Here, the City contends that the manhole cover is property that is incidental to transit facilities, and that NYCTA maintains the manhole cover. At his deposition on January 16, 2009, Vincent Valenti, a General Superintendent of Electrical for NYCTA, confirmed that NYRT is an abbreviation for "New York Rapid Transit System." Bertulfo Affirm., Ex G [Valenti 1/16/09 EBT], at 25. During the deposition, Valenti looked at a photograph of a ten-inch manhole cover marked as Defendant's Exhibit B dated January 22, 2008. When asked, "Can you tell from that picture whether or not that's a manhole cover maintained by the New York City Transit Authority?", Valenti answered, "Yes, it is." Id.
The City also cites 34 RCNY § 2-07 (b) (1), which, as previously mentioned, states:
"The owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware."
It is undisputed that at least part of a pothole starts from the edge of a manhole cover stamped "RTS" and "NYRT," and therefore some part of the pothole is within a 12 inch area extending from the manhole cover. See Boneta Affirm., Ex 6.
The Authorities contend that there were two 10 inch manhole covers in the vicinity of the intersection of Essex and Grand Streets, and contend that Valenti did not know which manhole belonged to the Authorities, based on his further deposition testimony taken on April 6, 2009. Boneta Affirm., Ex 4 [Valenti 4/6/09 EBT]. At this deposition, Valenti reviewed a "duct assignment line diagram" that "runs along Essex from Hester to Broome." Id. at 56. Valenti was asked,
"What process did you use by which to determine that you believe this manhole cover or manhole symbol labeled DMB876N is the manhole in question in this lawsuit
A.By the instructions given to me of where it was, Grand and Essex.
Q.But you had indicated that there are two manhole covers in this vicinity. How did you rule out the one that's labeled DMB8755 (indicating)?
MR. SMITH: Indicating the lower manhole cover on the diagram.
A.Because according to the description, you said it was on Essex and Grand. So, this manhole DMP876 is on Grand, and Essex is the cross street, where this on 875[5] is on Essex, it's actually before Grand Street. Without physically actually going there and physically ID'ing it with the print, that's how I would gauge."
Id. at 58. Later in the deposition, Valenti was asked,
"During your process of elimination in determining which of these schematics pertain to the manhole cover in question, is there any way that you can tell for sure it's DMB876N or DMB8755?
A.From this picture, no."
Id. at 61. The Authorities essentially argue that, because Valenti could not "tell for sure" that the manhole cover at issue in this action was DMB876N (as plaintiffs claim), Valenti therefore did not know whether the manhole at issue belonged to the Authorities.
The Court is not persuaded that Valenti's later deposition testimony on April 6, 2009 indicates that he did not know that the manhole at issue in this lawsuit was either the manhole identified as DMB876N or DMB8755. Valenti testified that he ruled out DMB8755 as the manhole cover at issue because DMB8755 is "actually before Grand Street." Id. at 58. It is undisputed that the manhole cover at issue here is within the crosswalk at the intersection of Grand and Essex Streets, not before Grand Street. That Valenti could state this with complete certainty — i.e., "tell for sure" — is not sufficient, under these particular circumstances, to raise a factual question as to whether Valenti misidentified the manhole cover at issue in this action as manhole DMB876N.
Nevertheless, this branch of the City's motion is denied. As discussed above, plaintiffs have submitted evidence to support their theory that the manhole cover at issue sits below the level of the roadway, because the manhole cover was not raised to the level of the roadway during the City's repaving of this street. The Authorities contend that the City never informed NYCTA that it could not raise the manhole cover, based on results of a search for any complaints or work orders regarding the manhole cover among the records of NYCTA's cable and electrical department and the Stations Maintenance Department. Boneta Affirm., Ex 5. To grant the City immediate indemnification and defense at this time therefore raises the possibility that NYCTA would be called to indemnify and defend the City for its own negligence.
As an initial matter, the Court notes that the City seeks indemnification and defense from NYCTA, but Section 6.8 of the Lease does not actually use the specific word, "indemnify." Insofar as the City does not argue that there is a substantive difference between an agreement to indemnify and an agreement to defend, it is well settled that
"[C]ontracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. That is not to say that the indemnity clause must contain express language referring to the negligence of the indemnitee, but merely that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement, and the surrounding facts and circumstances. When the intent is clear, an indemnification agreement will be enforced even if it provides indemnity for one's own or a third party's negligence."
Sherry v Wal-Mart Stores East, L.P. , 67 AD3d 992 , 994-995 (2d Dept 2009) (internal citations and quotation marks omitted).
Given the language and purpose of the Lease between the City and NYCTA, the Court does not find that Section 6.8 of the Lease expresses the parties' clear intention that NYCTA pay and defend all claims, actions or judgments resulting from any accident or occurrence arising out of or in connection with the operation, management and control by the Authority of the Leased Property, if the accident or occurrence resulted, in whole or in part, from the City's own negligence. Accordingly, it would premature to grant the City immediate indemnification and defense, because there exists an unresolved question as to whether the City could be found negligent in causing an unsafe condition around the manhole cover.
Therefore, this branch of the City's motion is denied.
CONCLUSION
Accordingly, it is hereby
ORDERED that motion by defendants New York City Department of Transportation and the City of New York is denied.