Opinion
23852/2013E
03-28-2018
Yasmine WILLIAMS, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants.
Counsel for Plaintiff: Law Offices of John C. Dearie (Casey Fundaro, Esq., New York, NY) Counsel for Defendants: Zachary W. Carter, Corporation Counsel (Talya Seidman, Esq.)
Counsel for Plaintiff: Law Offices of John C. Dearie (Casey Fundaro, Esq., New York, NY)
Counsel for Defendants: Zachary W. Carter, Corporation Counsel (Talya Seidman, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 read on the below motion noticed on October 30, 2017 and duly submitted on the Part IA15 Motion calendar of December 5, 2017 :
Papers Submitted Numbered
Defs.' Notice of Motion, Exhibits 1,2
Pl.'s Aff. In Opp., Exhibits 3,4
Def.s' Reply Aff. 5
Upon the foregoing papers, the defendants The City of New York and The City of New York s/h/a The New York City Department of Transportation ("Defendants") move for summary judgment, dismissing the complaint of the plaintiff Yasmine Williams ("Plaintiff"), pursuant to CPLR 3212. Plaintiff opposes the motion.
Background
This accident arises out of an alleged trip-and-fall accident that occurred on June 9, 2013, at approximately 9:00AM. Plaintiff claims that she was walking on East 180th Street near Vidalia Park in between Daly Avenue and Vyse Avenue when she tripped and fell over an uneven, cracked, and broken portion of the sidewalk. Defendants now move for summary judgment, alleging, that they had no prior written notice of the alleged defect, and none of the exceptions to the prior written notice rule apply.
Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738 [1993] ).
Applicable Law and Analysis
Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries emanating from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies ( see Amabile v. City of Buffalo , 93 NY2d 471, 474 [1999] ). Under New York City Admin. Code § 7–201(c), no action may be maintained against the City for an allegedly defective condition on a sidewalk unless the City had written notice thereof, and failed to correct the condition within 15 days of receiving the notice.
Defendant first alleges that Plaintiff did not plead prior written notice, but her complaint and notice of claim consistently allege actual notice, and thus the consideration of this theory of liability will not prejudice Plaintiff (see, e.g. , Cruzado v. City of New York , 80 AD3d 537, 538 [1st Dept. 2011] ). "Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. ["Big Apple Maps"] and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon" (see Katz v. City of New York , 87 NY2d 241 [1995] ). "[W]here 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 [Big Apple] map, the question should be resolved by the jury" (see Reyes v. City of New York , 63 AD3d 615 [1st Dept. 2009] ; see also Foley v. City of New York , 151 AD3d 431, 431–32 [1st Dept. 2017] ).
In this matter, the Big Apple Map for the accident area depicts the existence of an uneven and cracked sidewalk on the south side of East 180th Street, between Daly Avenue and Vyse Avenue, but closer to the corner of East 180th Street and Daly Avenue. Plaintiff's verified bill of particulars specified the accident location as "East 180th Street between Vyse and Daly Avenue by the BX36 and BX9 Bus, bordering Vidalia Park, in the County of Bronx, State of New York." Contrary to Defendants' contentions, there are issues of fact as to whether the Big Apple Map markings depict the condition that caused Plaintiff's accident, as the precise location of the defect cannot be determined from Plaintiff's General Municipal Law § 50–h hearing testimony. Plaintiff testified that she was walking on East 180th Street between Daly and Vyse Avenues (50–h transcript at 9:3–11). Daly Avenue was behind her, which indicates that she was walking eastbound (id at 9:11–12). She did not clearly state "how far behind" her Daly Avenue was. The relevant exchange went as follows:
Q. It was between Daly and Vyse?
A. Yes.
Q. Which one was behind you?
A. Daly Avenue
Q. How far behind you was it; was it a half a block, quarter of a block, something else?
A. It's like from one end of the road to the next end. It's not no block really. It's like the street Daly might be, um, there and Vyse might be there (indicating).
Q. Was it a normal block?
A. Yes.
Q. Were you in the middle of the block when this happened?
A. It was in the middle of the two, yeah.
Q. So you weren't closer to one than the other?
A. No.
(Pl. 50–h hearing, at P. 9–10).
The foregoing testimony does not defeat Plaintiff's claim, as it fails to indicate with specificity the precise location of the alleged defect. It is not clearly evident that the question "so you weren't closer to one than the other ," or Plaintiff's answer, is in specific reference to corners of East 180th Street and the two intersecting streets. When reviewing the testimony as a whole, it may be construed to mean, as noted by Plaintiff's counsel, that Plaintiff was merely referring to the location of the defect being somewhere between Daly and Vyse Avneue, as opposed to being precisely located at the "half-way point" between the two streets. On a motion for summary judgment, the non-movant must be afforded all favorable inferences (see Ortega v. Everest Realty, LLC. , 84 AD3d 542, 545 [1st Dept. 2011] ). There is no additional evidence on record solidifying the precise location of this accident. Even ignoring the inadmissible "Google Map" printout submitted in opposition, Defendant failed to affirmatively demonstrate that there was no defect near the "BX36 and BX9 bus bordering Vidalia Park." Defendants thus failed to eliminate all triable issues of fact as to whether the markings on the Big Apple Map denote the cracked sidewalk that allegedly caused this accident. Accordingly, Defendants' motion for summary judgment is denied without reaching Defendants' additional contentions.
The above constitutes the Decision and Order of this Court.