Opinion
121395/1995.
Decided September 7, 2007.
Jonathan M. Rivera, Esq., Maneul A. Romero, P.C., Brooklyn NY, for the Plaintiff.
Michael A. Cardozo, Esq., Corporation Counsel of City of New York, By: Tanisha Joy Byron, Esq., New York NY, for Defendant/Third-Party Plaintiff.
The City of New York moves for summary judgment and dismissal of the complaint pursuant to CPLR 3212 and/or CPLR 3211(a)(7). The third-party defendant, Consolidated Edison (Con Ed), did not submit papers on the motion. For the reasons which follow, the motion is denied.
Facts
On May 31, 1994, while riding his bicycle on the roadway of West 35th Street and Eighth Avenue, plaintiff fell and suffered personal injury when his bike struck a metal plate on the street which allegedly had become a dangerous condition (Not. of Mot. Ex. A, Notice of Claim). According to the verified complaint, defendant City, its agents or contractors, were doing construction and roadway work "at Eighth Avenue near its intersection with 35th Street" (Not. of Mot. Ex. B, Ver. Compl. ¶¶ 8-9). Plaintiff timely served a Notice of Claim upon the City and a 50-H hearing was held on October 31, 1994 (Not. of Mot. Ex. F). Thereafter he commenced this action. In November 2005, the City commenced a third-party action against Con Ed (Not. of Mot. Ex. D, Aff. of Serv.).
At the 50-H hearing, plaintiff testified in relevant part that he was a bike messenger, that he was riding "north" on Eighth Avenue "in the middle of the right lane," and noticed the plate, which was lying lengthwise in the right lane on Eighth Avenue, when he was about 15 feet away from it (Not. of Mot. Ex. F, 50-H Hearing, pp. 2, 4, 7, 8). Plaintiff believed there was street repair work underway but did not notice if there were any workers in the roadway and stated that there were no warning signs or barricades (Not. of Mot. Ex. F., 50-H Hearing p. 10). At the time of his fall, he was "on the roadway" at "35th and Eighth Avenue," on "Eighth Avenue" (Not. of Mot. Ex. F, 50-H Hearing p. 4).
According to the City's records witness, Cynthia Howard from the NYC Department of Transportation (DOT), her office found three work permits for the area where plaintiff fell were issued to Con Ed within the two-year period prior to plaintiff's accident (Not. of Mot. Ex. G, Howard EBT of 4/21/2004 [hereinafter Howard EBT] 9, 13-14, 16, 18; Ex. H). She was unable to tell from the DOT records whether the excavation work was actually performed (Howard EBT 15, 17, 19). She also produced a "Big Apple Map" of the area (Howard EBT 10; Not. of Mot. Ex. I). The map was issued on September 9, 1993 (Howard EBT 19). She testified that the DOT does not send its employees out to observe the areas covered by the Big Apple Maps (Howard EBT 11).
Con Ed produced a records witness who was questioned about the permits (Aff. in Opp. Ex. 5, EBT of Mario Smith of 10/31/2006 [hereinafter Smith EBT]). He explained that the permit of May 12, 1994 was for a cut 18 feet from the curb of Eighth Avenue between 35th and 36th Street, and 50 feet north of 35th Street (Smith EBT 13-14). Another permit was for work 16 feet away from the curb on Eighth Avenue between 35th and 36th Street, with cuts14 feet north of West 35th Street and 18 feet north of West 36th Street (Smith EBT 16-17). The third permit was for a gas leak on the roadway on Eighth Avenue between 35th and 36th Street (Smith EBT 19, 20).
The City additionally produced John Boduch, associate inspector of highways and sewers for the DOT's Highway Inspection Quality Assurance unit (HIQA) in Queens (Aff. in Opp. Ex. 4, Boduch EBT of 8/31/2006 [hereinafter Boduch EBT] 6, 7). He testified that copies of the permit applications were forwarded to HIQA where they were regularly handed out to inspectors who would then inspect the active work sites and make a written report (Boduch EBT 25). The inspectors "might" inspect the locations during the work or after the work was completed (Boduch EBT 8-9). His office has the "goal" of inspecting "as much work as we possibly can, for every permit that is obtained" (Boduch EBT 14:5, 13-17). In1994 there was a DOT procedure to inspect a site while work was ongoing (Boduch EBT 24-25). His office wants to inspect sites once while active; this inspection differs from that conducted after the work was completed (Boduch EBT 26). He did not know whether the policy to inspect after the work was complete was mandatory, but "we definitely try to." (Boduch EBT 28). He admitted that while the HIQA office had as a goal the inspection of every permit site, it was not possible due to insufficient personnel (Boduch EBT 29). Under the "public service rules," utility companies such as Con Ed are routinely given permission to open the street to make repairs and provide service (Boduch EBT 11).
When shown photographs of the metal plate at issue, Budoch stated that it was not in compliance as it was not pinned to the roadway or ramped to the asphalt to make a smooth transition from the roadway surface to the height of the plate (Boduch EBT 22, 23). He knew that Con Ed uses these kinds of plates (Boduch EBT 22).
The City also produced a Highway and Sewer Inspector for the DOT who was an apprentice in the Department in 1994 (Aff. in Opp. Ex. 7, EBT of Dean Mojica 12/14/2004 [hereinafter Mojica EBT] 6, 7). Dean Mojica testified that in 1994, the City had regulations for use and placement of steel plates on city streets (Mojica EBT 7). When he was inspecting a site, he would check to see if the contractor had properly pinned and ramped any steel plates on the streets (Mojica EBT 12-13). The contractor is responsible for securing the plate (Mojica EBT 30). If a plate were improperly secured, he would issue a correction request (Mojica EBT 31). In "some cases," he would issue a violation if the condition were not corrected (Mojica EBT 32). According to Mojica, the City's Department of Highways excavates of the city streets, however it uses barricades rather than steel plates to protect traffic and pedestrians from open work sites (Mojica EBT 33, 41). He was unsure whether the DOT did excavation work (Mojica EBT 35).
Timeliness of the Motion
The note of issue was filed on December 19, 2006. The motion was filed February 20, 2007. At the time, local rule provided for 60 days after the filing of a note of issue to file summary judgment motions. While it is true 63 day elapsed before the motion was filed, given that the 60th day fell on a three-day holiday weekend, the motion was filed the next business day on which court was open. The motion is therefore timely.
Legal Analysis
The City seeks dismissal of the complaint based on lack of prior written notice of the defective condition and because it did not cause or create the condition. Plaintiff argues in opposition that there are questions of fact as to whether the City failed to inspect the roadway or maintain the street in proper repair, whether it created the dangerous condition, and whether it had written notice of the defect (Aff. in Opp. ¶ 9).
Summary judgment is proper only when there are no issues of triable fact ( Alvarez v Prospect Hospital, 68 NY2d 320, 324). Issue finding rather than issue determination is its function ( Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395). It is appropriate when there is no genuine issue as to any material fact and the disposition of the causes of action may be decided as a matter of law ( Security Pacific Bus. Credit, Inc. v Peat Marwick Main Co., 79 NY2d 695, rearg denied 80 NY2d 918). The evidence will be construed in the light most favorable to the one moved against ( Weiss v Garfield, 21 AD2d 156 [3rd Dept 1964]).
To prevail on a summary judgment motion, the movant must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor ( GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial ( Kosson v Algaze, 84 NY2d 1019). The opposing party must demonstrate by admissible evidence the existence of a material issue of fact requiring a trial ( Zuckerman v City of New York, 49 NY2d 557, 563).
Section 7-201(c)(2) of the New York City Administrative Code, colloquially called the "pothole law," states in part that no civil action can be maintained against the City for personal injury sustained as a result of a street in need of repair, or unsafe, dangerous or obstructive, unless written notice of the condition was "actually given" to the City's DOT. Thus, prior written notice of the defect is a condition precedent which a plaintiff is required to plead and prove in order to maintain an action against the City, and the failure to demonstrate prior written notice will result in the dismissal of a plaintiff's negligence suit against the City ( Katz v City of New York, 87 NY2d 241, 243, citing Poirier v City of Schenectady, 85 NY2d 310, 313; Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633-634).
A notation marked on the Big Apple Map (formally titled Big Apple Pothole Sidewalk Protection Corporation map), serves to provide the City with prior written notice of an alleged defect ( Vertsberger v City of New York, 34 AD3d 453, 455 [2nd Dept. 2006], citing Katz v City of New York, 87 NY2d at 243; Cassuto v City of New York, 23 AD3d 423, 424 [2nd Dept. 2005]; Almadotter v City of New York, 15 AD3d 426, 427 [2nd Dept. 2005]; Quinn v City of New York, 305 AD2d 570, 571 [2nd Dept. 2003]; see also D'Onofrio v City of New York, 41 AD3d 235 [1st Dept. 2007]). Plaintiff relies on the contents of the September 1993 Big Apple Map to establish that the City had notice of the metal plate on the street. He includes a partial copy of the Big Apple Map denoting Eighth Avenue from 34th to 36th Streets, along with the key to interpreting the symbols (Aff. in Opp. Ex. 1). Notably, he highlights a marking on the far left side (the west side) of the Eighth Avenue in the intersection of Thirty-Fifth Street that indicates the existence of a "pothole or other hazard."
As argued by the City, this marking does not correspond to the location of the metal plate as described by plaintiff who testified he was traveling north in the middle of the "right" lane of Eighth Avenue, i.e., the east side of the avenue. Even though the testimony and other evidence, which seems to suggest the accident occurred either at or near the intersection of 35th Street and Eighth Avenue, plaintiff made it abundantly clear that he was caused to fall by a plate located on the right side, not the left side, of the Eighth Avenue roadway while traveling north. Accordingly, the Big Apple Map does not serve to provide notice to the City of any road defect which caused plaintiff to fall and suffer injury.
Nor does the fact that the City's DOT issued permits to Con Ed for work at the location suffice to establish notice. Contrary to plaintiff's contention, the issuance of a work permit does not establish that the City had notice of a defect ( Bolanos v City of New York, 29 AD3d 455, 456 [1st Dept. 2006]).
The courts recognize two exceptions to pothole law, first "where the locality created the defect or hazard through an affirmative act of negligence," and second where "a special use' confers a special benefit upon the locality" ( Oboler v City of New York, 8 NY3d 888, 889-890, quoting Amabile v City of Buffalo, 93 NY2d 471, 474). The affirmative act exception is limited to situations where the City's work results in the immediate creation of a dangerous condition ( Oboler, citing Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005]).
Plaintiff argues that the City may have itself created the hazard in carrying out work at the location, and that even if it did not do the work, it had a duty to inspect the site based on the testimony of the HIQA witness. Neither argument is persuasive. His argument that the City may have caused or created the defect is sheer speculation, given that the only records found by the City's search for work records and permits for work at that location, pertain to permits requested by Con Ed. Suspicions, surmises, or unsubstantiated allegations are insufficient to rebut a motion for summary judgment ( Zuckerman v City of New York, 49 NY2d, at 557). Similarly, plaintiff's suggestion that the City had notice of the street's condition and the metal plate because the New York City Department of Environmental Protection twice responded to complaints in March 1993 and March 1994 concerning flooding catch basins at the location in question, is pure speculation. There is nothing in the documents attached to the opposition papers as Exhibit 6, to suggest that a metal plate was placed on the street when the area was cleaned. Furthermore, although plaintiff argues that the testimony of HIQA's John Boduch establishes that the City affirmatively took on the duty to inspect all repair sites, and was thus negligent in failing to discover the improper placement of the metal plate at issue, in fact Boduch's testimony speaks only of the aspiration or goal of inspecting all sites. He admitted that it was not possible given personnel issues. Plaintiff does not include copies of any official regulations that required either the DOT or HIQA to inspect work sites, even though Boduch seemed to indicate there are such rules. Indeed, a regulation requiring the City to inspect all work sites seems to contradict the "pothole law" which creates liability only where the City has had written notice of a particular defect.
As plaintiff has not established that the City had prior written notice of the hazardous metal plate, or that the City created the condition or had a duty to repair it, summary judgment and dismissal of the complaint is warranted. It is therefore
ORDERED that the motion for summary judgment and dismissal of the complaint is granted; and it is further
ORDERED that upon proof of service of a copy of this order upon all parties with notice of entry, the Clerk of Court shall enter judgment dismissing the complaint with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
This constitutes the decision and order of the court. The court has mailed copies of this decision to counsel on the motion.