Clarke v Consolidated Edison Co. of NY, Inc.

[*1] Clarke v Consolidated Edison Co. of NY, Inc. 2009 NY Slip Op 51985(U) [25 Misc 3d 1206(A)] Decided on September 15, 2009 Supreme Court, New York County Scarpulla, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 15, 2009
Supreme Court, New York County

Margarita Osborne Clarke, INDIVIDUALLY AND AS THE ADMINISTRATRIX OF THE ESTATE OF CHARLES OSBORNE, DECEASED, Plaintiff,

against

Consolidated Edison Company of New York, Inc., EMPIRE CITY SUBWAY COMPANY, LTD., THE CITY OF NEW YORK, AND THE CITY OF NEW YORK S/H/A NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendants.



102145/02



For Plaintiff:

Michelstein & Associates PLLC

485 Madison Avenue

New York, NY 10022

For Defendant The City of New York:

Michael A. Cardozo, Corporation Counsel

100 Church Street, 4th Floor

New York, NY 10007

Saliann Scarpulla, J.

In this action to recover damages for personal injuries, defendant The City of New York ("City") moves for summary judgment dismissing the complaint and all cross claims asserted against it by plaintiff Margarita Osborne Clarke ("Clarke").

On November 16, 2000 at approximately 2:00 p.m., Charles Osborne ("decedent") fell when his motorized wheelchair drove down a pedestrian ramp into a 6-8 inch deep and 2 feet by 1 foot wide pothole located in the crosswalk at the southwest corner of 110th Street and Lexington Avenue. The defect was allegedly adjacent to the curb on the south side of 110th Street at its intersection with the west side of Lexington Avenue. Decedent sustained injuries to his left leg.

On February 8, 2001, a notice of claim was served upon the City. An action was [*2]commenced by summons and complaint dated January 23, 2002, alleging, in relevant part, that the City had notice of the defect that caused decedent's accident and was negligent in failing to properly maintain the roadway.

The City now moves for summary judgment dismissing the complaint and all cross claims asserted against it. The City argues that it had no prior written notice of the subject defect and there is no evidence that the City caused or created the subject defect.

In support of its argument, the City first submits the examination before trial testimony of Department of Transportation ("DOT") record searcher Cynthia Howard ("Howard"). Howard testified that according to the DOT response sheet, a DOT search for the roadway, crosswalks and intersection at East 110th Street and Lexington Avenue was conducted for the period of November 16, 1998 through November 16, 2000. One permit was found for work to be performed by Consolidated Edison on the roadway at East 110th Street and Lexington Avenue and one milling/resurfacing record ("Capital Project M980204") was found for work to be performed by the DOT maintenance crew on Lexington Avenue from East 96th Street to East 113th Street beginning on June 14, 1999 and ending on June 24, 1999.

According to the City, a DOT search was conducted for additional documents associated with Capital Project M980204. DOT employee Norris Powell ("Powell") testified at an examination before trial that the search returned a special assignment resurfacing request for Lexington Avenue from East 113th Street to East 96th Street. According to that request, the work was performed from May 13, 1999 through May 21, 1999. A DOT search was also conducted for Highway Inspection Quality Assurance records related to Capital Project M980204 for the southwest corner of the intersection of 110th Street and Lexington Avenue for the time period of November 16, 1998 through November 16, 2000, and according to DOT staff inspector Alonzo Jones ("Jones"), the search returned no records.

The City also conducted a search with Department of Design and Construction ("DDC") for documents pertaining to the subject location, and according to DDC engineer Ashwin Patel ("Patel"), the search returned DDC contract HWCRESF 98, which was a citywide milling and resurfacing contract with Power Concrete Co., Inc. ("Power") beginning in August 1998 and finishing sometime in 1999, but was unrelated to Capital Project M980204. That work was conducted on Lexington Avenue from East 80th Street to East 113th Street.

The City also submits a Big Apple Map for the subject location received by DOT on September 29, 1999, and alleges that the map contains no markings in the subject crosswalk.

In opposition, Clarke argues that (1) the deposition transcripts submitted by the City in support of its motion were not executed in the manner prescribed by CPLR §3116; (2) the DOT searches and the HIQA searches submitted by the City do not satisfy the City's burden because they were limited to roadways only and did not include crosswalks; [*3](3) the City had prior written notice of the subject defect as evidenced by a May 26, 1999 photograph found in DDC records referencing project HWCRESF98 and depicting the location of the decedent's fall; (4) the City is also liable for causing and creating the subject defect in that it hired Power to perform the milling and resurfacing work for project HWCRESF98 and retained supervision and control over the project, and Power improperly repaired the pedestrian ramp and improperly milled and/or paved the adjacent crosswalk, thereby creating the large and deep pothole upon which the decedent fell; (5) the DDC Inspector's Report depicts the exact location of decedent's accident, contains calculations with respect to the estimated quantity of concrete needed for sidewalk, curb and pedestrian ramps in connection with project HWCRESF98, and specifies that the ramp at the subject crosswalk on the southwest corner is to be installed or repaired; and (6) according to the affidavit of engineer Stanley Fein ("Fein"), the City and its contractors caused and created the defect upon which the decedent was injured by improperly resurfacing the roadway and in not restoring the crosswalk surface in a level fashion.

Discussion

The proponent of a motion for summary judgment 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. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Where the proponent fails to meet this burden, the motion should be denied even if the papers in opposition are inadequate. Pastoriza v. State of New York, 108 AD2d 605 (1st Dept. 1985).

Here, the City has met its burden of making a prima facie showing of entitlement to judgment as a matter of law. First, despite Clarke's argument to the contrary, the deposition transcripts submitted by the City in support of its motion may be considered on this summary judgment motion. Pursuant to CPLR §3116, a deposition transcript may be admitted as though it were signed, especially where, as here, the transcript was certified as accurate. See Zabari v. City of New York, 242 AD2d 15 (1st Dept. 1998); Tower Mineola Ltd. Partnership v. Potomac Ins. Co. of Ill., 14 Misc 3d 1238A (Sup Ct. NY Co., 2007).

In a case like this where plaintiff alleges a defect in the crosswalk of a roadway, pursuant to Administrative Code §7-201(c) (2) plaintiff must plead and prove that the City had prior notice of the defect, unless it is claimed that the City was affirmatively negligent in causing or creating the defective condition. See Elstein v. City of New York, 209 AD2d 186 (1st Dept. 1994). The affirmative negligence exception to the notice requirement is limited to work by the City that immediately results in the existence of a dangerous condition. See Oboler v. City of New York, 8 NY3d 888 (2007).

Here, the City has proven that it had no prior written notice of the subject defect and did not cause or create the defective condition. Clarke relies upon a May 26, 1999 [*4]photograph from DDC records, but this photograph does not serve as prior written notice of the defective condition. First, Clarke has failed to present any support for her argument that a photograph may constitute either "written notice" or a "written acknowledgment" within the meaning of Administrative Code §§7-201(c)(2).

Further, to satisfy the notice requirement in Administrative Code §§7-201(c) (2) , the notice must have been received by the municipal agency designated by the municipality to be responsible for repairing the alleged defect. See Gorman v. Town of Huntington, 12 NY3d 275, 295 (2009)(written requests to any municipal agent other than a statutory designee that a defect be repaired is not sufficient to satisfy the municipal notice requirement). Here, it is DOT, not DDC, that has responsibility for repairing street potholes, thus a photograph contained in DDC's files is not sufficient to show that DOT had notice of the allegedly defective condition. Finally, and in any event, the subject photograph is grainy and does not appear to show any defect.

Contrary to Clarke's argument, the DOT searches and the HIQA searches submitted by the City do satisfy the City's burden to produce the documents in its possession relative to the notice issue. Even though the DOT search request forms indicate that only roadway searches would be conducted, Howard averred that according to the search response forms, crosswalks were included in the searches. Jones also averred that, although the HIQA search form indicates that only a roadway search would be conducted, he conducted the search for the area of the subject crosswalk.[FN1]

Finally, the Big Apple maps submitted do not depict any defect at the location of decedent's fall, and Clarke has not submitted any other evidence sufficient to raise an issue of fact as to the City's prior written notice of the alleged defect..

Next, Clarke has not submitted any competent evidence from which a jury could find that the City was affirmatively negligent in causing or creating the allegedly defective condition. The evidence submitted by Clarke shows that work was performed by a contractor hired and supervised by the City at the location of decedent's fall. Also, a DDC Inspector's Report depicts the exact location of decedent's accident, contains calculations with respect to the estimated quantity of concrete needed for sidewalk, curb and pedestrian ramps in connection with project HWCRESF98, and specifies that the ramp at the subject crosswalk on the southwest corner was to be installed or repaired. However, none of this evidence addresses the crosswalk area, and does not raise an issue of fact as to whether any of this work was performed negligently and/or improperly or that any of this work created or caused the subject defect in the crosswalk.

Clarke also submits an affidavit from Stanley H. Fein, in which he opines that the City caused or created the defect by improperly resurfacing the roadway in 1999. Fein's [*5]conclusion directly contradicts Clarke's assertion on this motion that the alleged defect is shown in a photograph taken prior to the resurfacing in 1999. If the alleged defect existed prior to the resurfacing, it could not have been created as a result of negligent resurfacing. Further, Fein's conclusion has no evidentiary basis or explanation, other than his statement that he reviewed all of Clarke's file in reaching his conclusion. As Fein's conclusion is completely based on speculation, conjecture and has no evidentiary basis it is insufficient to raise a triable issue of fact as to whether the City was affirmatively negligent in causing or creating the defective condition. See generally Regan v. City of New York, 8 AD3d 462 (2nd Dept. 2004) Mollin v. County of Nassau, 2 AD3d 600 (2nd Dept. 2003).

In accordance with the foregoing, it is

ORDERED that defendant The City of New York's motion for summary judgment

dismissing the complaint and all cross claims asserted against it is granted; and it is further

ORDERED that the action is severed and shall continue with respect to the remaining defendants; and it is further

ORDERED that the Trial Support Office shall re-assign this action to a non-City General IAS Part inasmuch as the City is no longer a defendant in the action.

This constitutes the decision and order of the Court.

Dated:New York, New York

September 15, 2009

E N T E R:

_____________________________

J.S.C. Footnotes

Footnote 1: As Clarke filed a note of issue without moving for further disclosure, Clarke can not now claim that the City's disclosure was inadequate.