Opinion
113953/00.
Decided June 10, 2004.
Shafran Mosley, P.C., New York, New York, for Plaintiffs.
Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, New York, New York, for Defendants.
Defendant City of New York moves for summary judgment dismissing the complaint.
Plaintiff, Augustine Velez was the Director of Facilities of The Central Park Conservancy from 1998 until 2000, during which time he oversaw maintenance and safety at Central Park. Plaintiff alleges that he contracted cryptococcus on June 29, 1999 when he inhaled aerosolized pigeon feces containing cryptococcus spores during a two hour visit to the City's Five Borough Technical Facility (FBTF) located on Randall's Island. Plaintiff claims he went to get a truck stored at a "new vehicle compound" located under the Triborough Bridge, and that the compound, and the truck stored there, were heavily covered in pigeon droppings. Plaintiff alleges that the premises were negligently maintained, that the City failed to warn plaintiff that the pigeon dropping harbored cryptococcus and that the City knew or should have known that plaintiff would be exposed to a dangerous cryptococcus infection. Plaintiff also alleges that the City failed to provide him with a safe place to work.
The standard under Labor Law § 200 is that of common law negligence; plaintiff still must show that the City had notice.
Plaintiff was diagnosed in October 1999. It is undisputed that cryptococcus neoformans is an organism present in the air, soil and plants; humans are frequently exposed to this organism, but rarely infected by it. Nor is it disputed that 80% to 90% of people diagnosed with this condition are immunodeficient due to HIV/AIDS, sarcoidosis or diabetes. Plaintiff's medical records show a prior diagnosis of sarcoidosis, which plaintiff denies. Plaintiff admits he has diabetes.
In support of this motion, the City asserts, inter alia, that it had no actual or constructive notice that the pigeon droppings at the subject site contained cryptococcus in June 1999. At his deposition, Dan Froehlich, Deputy Chief of Operations for the New York City Parks and Recreation Department testified as follows:
Froelich worked out of the FBTF in June and July 1999. The new vehicle compound is a fenced in area, paved with asphalt, with the capacity for about 50 vehicles under the Triborough Bridge. Inside the compound are two small structures, one for tools and one for staff that has two desks. He never saw large groups of pigeons at the new vehicle compound. On occasions, he saw pigeon droppings on vehicles, but not an excess amount on any car. He is not aware of any pigeon nests over the new vehicle compound. No one ever reported that to him and no one has complained about pigeon dropping on vehicles they picked up. There have been no written or oral complaints about the cleanliness of the new vehicles.
At his deposition, Gary Gradowitz, a City auto mechanic employed at the new vehicle compound, testified as follows:
Since 1995, Gradowitz has worked at the new vehicle compound on Randall's Island. The new vehicle compound is the distribution point for all new Parks vehicles. Gradowitz's job responsibilities are to inspect the new vehicles, interpret the contract, and enforce the contract. The Parks Department does not maintain the underneath portion of the bridge at all. No one from the new vehicle compound ever made any complaints about the bridge and he never observed any pigeons roosting in the underside of the bridge and he never worked there. While working in the new vehicle compound since 1995, he did not observe pigeons or pigeon droppings. No complaints have ever been made to him about pigeon dropping on new vehicles. He has observed dirt, salt, and debris from the bridge fall onto the new vehicles. The bridge deck is old and at times, concrete peels off the deck and adheres to the vehicles.
In opposition to this motion, plaintiff asserts that the City had actual knowledge of the danger to public health from pigeons and their droppings based on a Department of Transportation document entitled "2002 Bridges and Tunnels Annual Condition Report." The Court notes that the Triborough Bridge is not owned or operated by the City, but rather by the Metropolitan Transportation Authority and the Triborough Bridge and Tunnel Authority; those entities are not parties to this action. In any event, the report made no reference to the Triborough Bridge. Significantly, plaintiff does not set forth any basis demonstrating that the City had actual or constructive notice that this specific location had pigeon droppings that contained cryptococcus spores. Plaintiff submits no results of testing or sampling performed at the subject location for cryptococcus. Thus, plaintiff has failed to raise a triable factual question that would preclude summary judgment. The fact that the City issued warnings about possible exposure to cryptococcus at other locations does not impute actual or constructive knowledge to defendants concerning this location.
By decision and order dated April 19, 2001, the court (Friedman, J.) denied plaintiff's motion for leave to serve a late notice of claim against Triborough Bridge and Tunnel Authority and Metropolitan Transportation Authority. Accordingly, even though those entities were originally named in this action, and apparently served, no claim against them is viable. None of the papers before the Court lists those entities in the caption.
Additionally, plaintiff submits New York City Department of Health and Mental Hygiene "Guidelines on Assessment and Remediation of Fungi in Indoor Environments." This document, relevant only to indoor environments, is dated after plaintiff's alleged exposure. Finally, plaintiff submits two pages of a design criteria outline referencing the "DDC" (New York City Department of Design and Construction), which mentions biological contaminants in buildings undergoing renovation. None of the document constitutes notice to the City that pigeon droppings at the subject location contained cryptococcus on June 29, 1999.
Given the large population of feral pigeons and their droppings in the New York City environment, human contact with pigeon droppings in inevitable, random and virtually uncontrollable. To sustain this claim would make the owner of any public or private premises an insurer for any human contact at premises where pigeon droppings are present. The Court notes that plaintiff worked in Central Park from 1997 until November 1999 but does not allege that he was exposed to pigeon droppings in Central Park.
Accordingly, since the City has demonstrated entitlement to judgment as a matter of law; it is
ORDERED that the City's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
This decision constitutes the decision and order of the Court.