Wittorf v. the City of New York

Full title: RHONDA WITTORF, Plaintiff, v. THE CITY OF NEW YORK, Defendant

Court: Supreme Court of the State of New York, New York County

Date published: Jul 14, 2009

2009 N.Y. Slip Op. 31606 (N.Y. Sup. Ct. 2009)

Opinion

103233/06.

July 14, 2009.

Dansker Aspromonte Associates, By Paul Dansker, Esq., New York, NY, for Plaintiff.

New York City Corporation Counsel, By Ashley Hale, New York, New York, for Defendant S. Difazio Sons.

DECISION ORDER

HON SALIANN SCARPULLA, J.

Papers considered in review of this motion for summary judgement:

Papers Numbered

Notice of Mot. and Affirm. in Supp............... 1 Affirm. in Opp................................... 2 Reply Aff. in Further Supp....................... 3

Defendant the City of New York ("The City") moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff Rhonda Wittorf's ("Wittorf") complaint arising out of an accident due to a roadway defect. The accident occurred while Wittorf was riding a bicycle with her boyfriend on November 5, 2005. Right before entering the 65^th Street transverse going eastbound through the Central Park, Wittorf and her boyfriend approached two employees of the Department of Transportation ("DOT") and asked them whether they could ride through the transverse. Donald Bowles and Frank Rivera, the two DOT workers, were in the process of securing the area in preparation of the day-long repair work on a defective condition in the roadway when Wittorf and her boyfriend approached them. As Bowles testified, he and Rivera, not paying much attention to the cyclists, told them they could go ahead. While maneuvering between the holes in the roadway, Wittorf fell into a large hole about 3 feet wide and 4 feet long under the second overpass on the 65^th Street transverse.

The City argues that summary judgment is warranted here because (1) the City did not have sufficient prior written notice of the alleged defect, as required by New York City Administrative Code § 7-201(c); (2) the City did not cause or create the allegedly defective condition; and (3) repairing potholes is a governmental function for which the City cannot be found liable as no special duty existed between the City and Wittorf. In opposition, Wittorf argues that there are material issues of fact with regard to written notice, the City's affirmative creation of the defective condition and the existence of a special duty owed to Wittorf.

Discussion

Under CPLR 3212(b), summary judgment "shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The motion must be supported by (1) an affidavit, (2) by a copy of the pleadings and (3) by other available proof, such as depositions and written admissions. CPLR 3212 (b). To warrant a court's directing judgment as a matter of law, it must clearly appear that no material issue is presented for trial. Epstein v Scally, 99 A.D.2d 713 (1^st Dep't 1984). When a party has made a prima facie showing to entitle it to summary judgment, the burden shifts to the opposing party to show by evidentiary facts that the defense is real and can be established at trial. Indig v Finkelstein, 23 N.Y.2d 728 (1968); see also Vogel v Blade Contr. Inc., 293 A.D.2d 376, 377 (1^st Dep't 2002). Conclusory allegations or denials are insufficient to either warrant or defeat summary judgment. McGahee v Kennedy, 48 N.Y.2d 832, 834 (1979).

Administrative Code § 7-201(c)(2) lists three alternative prerequisites to an action maintained against the City for an injury caused by, among other things, a roadway being out of repair, unsafe, dangerous or obstructed: (1) "written notice of the defective, unsafe, dangerous or obstructed condition was actually given to the commissioner of transportation" or his designee; (2) "previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency"; or (3) "written acknowledgment from the City of the defective, unsafe, dangerous, or obstructive condition." In this case, Wittorf emphasizes the applicability of the "written acknowledgment" clause.

The Court of Appeals in Bruni v City of New York, 2 N.Y.3d 319 (2004) held that an 'acknowledgment' sufficient to satisfy the Pothole Law is a written statement showing that the city agency responsible for repairing a condition had first-hand knowledge both of the existence and the dangerous nature of the condition. Bruni, 2 N.Y.3d at 326-27.

In Bruni, the "written acknowledgment" clause of § 7-201 was satisfied by the report and work order from the agency responsible for addressing a particular condition, and therefore these internal documents referencing a cave in, generated by an employee of the Department of Environmental Protection ("DEP"), were deemed satisfactory as it was DEP's responsibility to repair the cave in. Bruni, 2 N.Y.3d at 325.

In contrast, the issuance of a work permit or a street opening permit does not satisfy the § 7-201 notice requirement, because these permits do not in any way reference a specific defect and contain only general language. DeSilva v City of New York, 15 A.D.3d 252, 253 (1^st Dep't 2005); see also Levbarg v City of New York, 282 AD2d 239, 242 (1^st Dep't 2001). In addition, citizens' prior oral complaints, standing alone, do not constitute prior written notice, even if reduced to writing by the City. See Lopez v Gonzalez, 44 A.D.3d 1012 (2^nd Dep't 2007) (finding that the citizen's complaints and two work orders insufficient to give notice, where the accident happened about a month after the repairs were done); Khemraj v City of New York, 37 A.D.3d 419 (2^nd Dep't 2007) (concluding that "the 'FITS report' from 1999, which reflected only that a pothole repair had been made to the subject area approximately 1½ years prior to the plaintiff's fall", was insufficient to constitute written notice to the City).

To be sufficient as written acknowledgment, the City's internal document must also be adequately specific as to the character and the location of the defect. See Walker v City of New York, 34 A.D.2d 226, 227 (1^st Dep't 2006) (finding insufficient a repair order stating that a pothole was somewhere in the intersection). The awareness of one defect in the area is inadequate notice of a different particular defect which caused the accident. Roldan v City of New York, 36 A.D.3d 484 (1^st Dep't 2007).

Here, Wittorf has submitted numerous documents referencing the allegedly defective condition on the 65^th Street transverse. In addition to five FITS reports of complaints of defects in the area, Wittorf submits five MOSAIC indexes/reports, respectively dated July 13, 2005, July 13, 2005, July 14, 2005, October 24, 2005, and October 28, 2005. MOSAIC indexes are compilations of written notices of defects that the City maintains in compliance with the Administrative Code § 7-201(c)(3), with certain notations subsequently made by the City of any actions taken on the complaint. Each MOSAIC index/report is interconnected with a particular FITS report that triggered it.

The City reasons that because both the MOSAIC and FITS reports contain only the minimal amount of information about the location and description of the defective condition, they are insufficient to give actual notice of the particular defective condition which caused Wittorf's accident. The reports indicate, however, that the physical location was adequately described as being close to the yellow dividing line, or under an overpass, on the 65^th Street transverse.

In addition, unlike a small pothole complained to be somewhere in a large intersection in Walker, the defective condition here was uniquely conspicuous. The first FITS and MOSAIC reports, dated July 13, 2005, indicate that the defect was located under an overpass on the 65^th Street transverse. DOT witness Bowels testified that, given the appreciable size and scope of the hole, Bowels' crew was immediately able to recognize the condition upon arrival at the 65^th Street transverse, without having to check under every underpass on the transverse. Under the subject underpass, almost the entire lane was broken up and certain spots had been broken out within the larger hole, creating a series of deep depression pockets close to the middle portion of the roadway that was coming apart. Bowles further testified that he saw Wittorf, all covered in blood, resting next to the defective condition right after the fall. In light of the specific documents and testimony of the DOT witness, there is an issue of fact as to whether the FITS and MOSAIC reports/indexes are written acknowledgment of the defect and its location.

The City also argues that it was never provided adequate notice because the FITS and MOSAIC reports indicated that the defect was either repaired or found restored. See Khemraj v City of New York, 37 A.D.3d 419 (2^nd Dep't 2007). The City points out that considering that the complaints were all closed before Wittorf's accident, none of the reports could have alerted the City to the need of repair at that subject location.

However, while the FITS and MOSAIC reports indicate the defect listed therein was repaired and closed often the day or several days after the record was generated, there were no gang sheets describing the repair work done. This is significant as Bowles testified that on the field level, gang sheets are the paperwork generated by construction crews reflecting any repair work performed at a particular location. Bowles further testified that when he arrived at the 65^th Street transverse, he did not observe any signs of prior repairs and could not explain why the system indicated that the condition was restored and the complaints closed. Bowles referred to it as a "mystery." Bowels' testimony and the missing gang sheets raise an issue of fact as to whether the defects set forth in the FITS and MOSAIC reports were actually repaired.

Taken together, the FITS and MOSAIC reports tracing back to July 13, 2005, about four months predating the accident, as well as the testimony of the DOT witness, raise an issue of fact as to whether the City had adequate written notice or acknowledgment in compliance with the Administrative Code § 7-201(c)(2). Considering that the Court finds that a trial is warranted on the issue of prior written notice, the Court does not address the parties' additional arguments concerning exceptions to the Administrative Code § 7-201(c)(2). In accordance with the foregoing, it is

ORDERED that the motion by defendant the City of New York for summary judgment dismissing plaintiff's complaint is denied; and it is further

ORDERED that counsel for plaintiff shall serve a copy of this decision upon the Clerk of Trial Support (60 Centre St., Rm. 158), who shall schedule this matter forthwith for a date in Part 40 for jury selection and a trial.

This constitutes the decision and order of the Court.