Opinion
2014EF4886
05-15-2018
Jeffrey SIMPSON, Plaintiff, v. SYRACUSE SIGNAL SYSTEMS, INC., Defendant.
SIDNEY P. COMINSKY, LLC, By: Sidney P. Cominsky, Esq., Attorneys for Plaintiff, 709 State Tower Building, Syracuse, NY 13202 SUGARMAN LAW FIRM, LLC, By: Kevin R. Van Duser, Esq., Attorneys for Defendant, 211 West Jefferson Street, Syracuse, NY 13202
SIDNEY P. COMINSKY, LLC, By: Sidney P. Cominsky, Esq., Attorneys for Plaintiff, 709 State Tower Building, Syracuse, NY 13202
SUGARMAN LAW FIRM, LLC, By: Kevin R. Van Duser, Esq., Attorneys for Defendant, 211 West Jefferson Street, Syracuse, NY 13202
James P. Murphy, J.
Before the Court is the motion of Defendant Syracuse Signal Systems, Inc. ("Defendant" or "Signal") dated October 2, 2017, seeking an Order dismissing the Complaint of Plaintiff Jeffrey Simpson ("Plaintiff").
By way of background, this action was commenced by the e-filing of a Summons and Complaint on December 8, 2014. See , Attorney Affirmation of Kevin R. Van Duser, dated September 30, 2017, Exhibit C. The Complaint was initially brought against the City of Syracuse ("the City" or "City of Syracuse"). It alleged in the Complaint that on March 31, 2014, at approximately 1:00 p.m., Plaintiff in an attempt to cross the street to get to the southwest corner of the intersection of West Fayette Street and South Salina Street, tripped in a hole, an unmarked area of sunken brick, or indentation and/or hazard in the pavement in front of the Rite Aid Pharmacy on South Salina Street. Plaintiff alleges that he fell and suffered serious injuries.
On January 11, 2016, Plaintiff filed a Summons and Complaint against Defendant Syracuse Signal Systems, Inc. Plaintiff's Complaint alleges that Signal was retained by the City of Syracuse between 2008 and 2009 to repair defective traffic poles at five intersections in Syracuse, including the intersection of West Fayette Street and South Salina Street, the scene of Plaintiff's alleged injury. See , Van Duser Aff., Exhibit AA.
In support of Defendant's motion, Attorney Van Duser submits the Affidavit of James French ("French"). See , Van Duser Aff., Exhibit X, Affidavit of James French, sworn to on November 16, 2015. Mr. French states that Signal worked on this project from August, 2008, until April 30, 2009. In replacing the defective traffic poles, Signal installed temporary wooden poles while the permanent poles were shipped. Signal had to cut the sidewalk to accommodate the wooden poles. When the permanent traffic poles were installed, Signal was contractually responsible for repairing the holes left in the sidewalk from the temporary poles.
After installing the new traffic poles and repairing the sidewalk, the City of Syracuse's Superintendent of Traffic Services, James French, conducted site inspections. See , French Aff., ¶ 16. The inspection of the intersection of West Fayette Street and South Salina Street occurred no later than April 30, 2009. Id. at ¶ 17. French performed a visual inspection of the structural integrity and levelness of the sidewalk; he averred that he found Signal's work "satisfactory, level, and without defect." Id. at ¶ 19. French stated that there was no evidence of any defect, unevenness, sinking, or any other irregularity at the intersection where Plaintiff fell. Id. at ¶ 20. He asserted that he would not have approved the work if there was any such evidence. Id. Based upon French's inspection and Affidavit, Signal argues that it performed its work in "an acceptable and satisfactory manner and in accordance with all plans and specifications," and is thus entitled to judgment as a matter of law. See , Van Duser Aff., ¶ 47.
In opposition to Signal's motion for summary judgment, Plaintiff argues that Signal merely, without any support, asserts that it complied with the plans and specifications for backfilling. Plaintiff claims French is not qualified to testify as to the adequacy of Signal's repairs of the sidewalk, especially backfilling, as he did no more than visually observe the intersection surface areas. Plaintiff points to French's testimony in which he admits that he has no training in masonry work, and had no way of determining whether the foundation was proper for the laying of brick. See , Van Duser Aff., Exhibit M, Deposition Testimony of James French, p. 33. French testified that he merely made visual inspections, and relied on Signal to determine whether the foundation was adequate and whether the bricks were properly placed. Id. at pp. 33-34.
In further opposition, Plaintiff offers testimony from their expert, Gary Wright. See , Affidavit of Gary Wright, sworn to on January 20, 2016, and Affidavit of Gary Wright, sworn to on November 20, 2017. Wright contends that, quite simply, Signal did not properly backfill the hole. Reviewing the City of Syracuse's specifications for backfilling (which Wright called "customary procedure in construction"), Wright described the process as follows: "Suitable materials must be used to fill a given hole. The hole is to be filled in incrementally with 8 inches of material being placed and compacted at a time until the hole is completely filled." See , Wright Aff., sworn to on January 20, 2016, ¶ 13. Given the alleged sinking, or the depression in the area of the sidewalk where Plaintiff fell, Wright concluded that the backfill was not done correctly. Id.
With a motion for summary judgment, the burden rests on the movant to demonstrate they are entitled to judgment as a matter of law. See , C.P.L.R. § 3212 (b) ; see also , Zuckerman v. City of New York , 49 NY2d 557, 560 (1980). Thus, a movant must show evidence demonstrating an absence of any material issues of fact. See , Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 (1985). Failure to show such an absence of material issues requires a denial of the motion. Id.
Once a movant has made a showing that there are no disputes of material fact, the burden shifts. See , Indig v. Finkelstein , 23 NY2d 728, 729 (1968) ; see also , Mason v. U.E.S.S. Leasing Corp. , 96 NY2d 875, 878 (2001). The party opposing the summary judgment motion must then "submit evidentiary facts or materials, by affidavit or otherwise, rebutting" movants' demonstration that they are entitled to judgment as a matter of law. See , Indig, supra , at 729. Summary judgment is improper where there are issues of material fact. See , Winegrad, supra , at 853.
"As a general rule, a builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow." See , Nachamie v. County of Nassau , 147 AD3d 770, 774 (2d Dept. 2017). This is true unless the plans are so defective "as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous." Id. (quoting West v. City of Troy , 231 AD2d 825, 826 (3d Dept. 1996) ).
In Nachamie , although the defendant contractors submitted an affidavit from a senior project manager who asserted that the construction was done in accordance with the plans and specifications supplied by the County, the Court held this was not enough to show entitlement to judgment as a matter of law. Id. at 775. The Court found the affidavit unpersuasive, and was not convinced by the evidence provided that the plans and specifications were in fact abided by. Specifically, the Court found the affidavit problematic as it made no reference to "records relating to the construction, inspection, or maintenance." Id.
Here, Defendants arguably rely on less than the defendants in Nachamie . In support of its motion to dismiss the complaint, Defendant relies almost entirely upon French's Affidavit, and his visual inspection of the intersection of West Fayette Street and South Salina Street after Signal completed its work. No reference is made to how Signal filled the hole created by the temporary traffic pole, and none of the evidence in this record accounts for the process. Though Defendant generally described the process for repairing the holes, it did not specifically provide evidence as to the method that was actually used here (or the method it was required to use by the City of Syracuse). Thus, under Nachamie , Defendant has failed to meet its burden of showing it is entitled to judgment as a matter of law.
In a case factually similar to this case, the First Department considered a contractor's liability when a plaintiff stepped into a hole in the street next to a sidewalk and was injured. See , Corprew v. City of New York , 106 AD3d 524, 524 (1st Dept. 2013). The contractor had been hired by the city to install pedestrian ramps in the sidewalks in various locations. Plaintiff fell in a hole at one such location, four months later. On the defendant contractor's motion for summary judgment, the Court in Corprew determined that the defendant "was required to establish prima facie that it did not cause or create the hole that allegedly caused plaintiff's fall." Id. The contractor argued that because the city signed off on its work, it was free of liability. The Court found defendant's argument unavailing, and held it was not entitled to summary judgment. Id. at 525.
Like the defendant in Corprew , Signal's argument is based on French's (the City's) inspection of the intersection where Plaintiff fell and was injured. The First Department found the argument unavailing there, and likewise it should not succeed here. Given French's testimony regarding his lack of knowledge in examining the foundation for laying bricks, and his inability to testify as to the process for backfilling, his visual inspection of the project area is insufficient to establish that Signal is entitled to judgment as a matter of law.
Defendant relies on a line of cases which granted summary judgment to contractors upon their showing of reliance on plans and specifications prepared or agreed upon by municipalities or the State. See , Nichols-Sisson v. Windstar Airport Serv., Inc. , 99 AD3d 770 (2d Dept. 2012) ; see also , Gee v. City of New York , 304 AD2d 615 (2d Dept. 2003). In each of these cases, however, the Court found that the Defendant proved its reliance "upon the plans and specifications which he has contracted to follow." See , Nachamie, supra , at 774. Specifically, in Gee , defendants provided "signed daily inspection reports [from the New York State Department of Transportation], along with its final acceptance letter of the project." See , Gee, supra , at 616. Here, there is no such specific showing. Though there is documentation of the quotes and invoices sent between the City and Signal, records of the kind relied upon in Gee are missing.
Here, both parties have submitted in support and in opposition numerous photographs of the area wherein Signal was replacing the poles and the location where Plaintiff fell. While both parties somewhat dispute the exact distance of where Plaintiff fell in relation to the wooden replacement pole that Signal installed, the undisputed facts show that Plaintiff fell on depressed brick pavers which were located in very close proximity to the area in which Signal had dug up. Plaintiff's expert, Gary Wright, opined that "the sunken brick pavers and the pit formation were the result of Syracuse Signal failing to properly backfill the hole that it created as part of its work for the City of Syracuse." See , Wright Aff., sworn to on November 20, 2017, ¶ 10. Defendant's expert, James French, conceded that he lacks knowledge in examining the foundation for laying bricks, and that he has no background on this subject. See , Van Duser Aff., Exhibit M, French Tr., pp. 32-33. He further was unable to testify as to the process for backfilling the hole dug by Signal for the replacement pole. Given all of this testimony, the Court finds that Signal has failed to meet its burden in establishing that they did not create the depression where Plaintiff fell. The Court further finds that at the very least, even if Defendant met its burden, Plaintiff has submitted proof sufficient to create a question of fact.
Accordingly, based on all the foregoing, the Court denies Defendant's motion seeking summary judgment to dismiss the Complaint commenced against it. The above constitutes the Decision of the Court. Plaintiff's counsel shall electronically file a proposed Order, on notice to Defendant's counsel, within fifteen (15) days of the date of this Decision.