Clark v City of New York

[*1] Clark v City of New York 2009 NY Slip Op 52032(U) [25 Misc 3d 1211(A)] Decided on September 30, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Supreme Court, Kings County

Anthony Clark, Plaintiff,

against

The City of New York, Keyspan Energy Corporation and Consolidated Edison Company of New York, Inc., Defendants.



The City of New York, Third-Party Plaintiff,

against

Verizon New York Inc., Vanessa Construction Inc., Westmoreland Construction Inc., Queens Network Cable Corp., and Abovenet, Inc., f/k/a Metromedia Fiber Network, Inc., Third-Party Defendants.



3233/03



The plaintiff is represented by Steven Lee Zaslav, Esq., the defendant the City of New York is represented by Michael A. Cardozo, Esq., by Porsha Requel Johnson , Esq., of counsel, the defendant Keyspan Energy Corporation is represented by Cullen & Dykmann, LLP, by Dawn C. Wheeler, Esq., and the defendant Westmoreland Consultants Inc. is represented by Hawkins Feretic & Daily, LLC.

Robert J. Miller, J.

In this action, plaintiff Anthony Clark (Clark) brings suit against the City of New York (City), Keyspan Energy Corporation (Keyspan) and Consolidated Edison Company (Con Ed) for injuries sustained on November 10, 2001 when his motorcycle "ran over a dangerous, hazardous and otherwise defective manhole cover..."

Third-party actions were started against various other companies including Verizon New York, Inc. (Verizon) but these actions as well as the action against Con Edison have previously been dismissed by prior orders of the court granting summary judgment. [*2]

The City now moves for summary judgment on the ground that "plaintiff has failed to comply with the prior written notice provision of §7-201 of the Administrative Code of the City of New York".

It is undisputed that on February 5, 2001, a telephone call was received by the City which reported a "DEP box below grade on roadway". A Service Request Inspection Detail report was completed by a City employee which detailed the phone call and indicated the results of the inspection of the site as follows:

"02/06/01 1:40 - 2:05 Nuzzi/ S Grizzi TR No.262

Alexis 11:05. Found no DEP manhole sunken

at location. Found telephone M/H Sunken. N/F/A."

The deposition testimony of a City witness indicated that N/F/A meant "no further action".

The City argues that this written acknowledgment is not notice because:

...upon inspection Mr. Sgrizzi not did not

find a "DEP Box Below Grade,"and

determined that the condition complained

of did not belong to the City of New York.

Mr. Sgrizzi determined that the sunken manhole

cover belonged to a telephone utility and that no

further action on behalf of the City was necessary.

The Court of Appeals in Bruni v City of New York, 2 NY3d 319 (2004) held:

While the purpose of the acknowledgment provision

is not explained in the legislative history, we interpret

it as permitting a lawsuit where there is documentary

evidence showing, as clearly as written notice to DOT

would show, that the City knew of the hazard and an

opportunity to remedy it. That purpose is fulfilled by a

written acknowledgment from the responsible agency

showing that it had knowledge of the condition and the

danger it presented. The purpose is no less served

in the exceptional case where the responsible agency is one

other than DOT.

The City argues that under Bruni an acknowledgment is only sufficient to establish notice where the acknowledgment shows " that the City agency responsible for repairing the condition had first hand knowledge of the condition". Here, the City argues that since a City employee [*3]determined that the sunken manhole was a telephone manhole and not a City manhole that therefore the "agency responsible" for the repair did not have knowledge of the condition.

The deposition testimony of the City supervisor states that since a City worker determined that the sunken manhole was not owned by the City that a "Kill Ticket" was issued which means "no further action" required. The Court is constrained to observe that the term utilized aptly describes what the result of the City policy may cause. In addition, apparently it is not the policy of the City to notify the allegedly responsible party, in this instance, Verizon, of the alleged hazardous condition.

On February 8, 2008, this Court granted Verizon's motion, for summary judgment dismissing the third- party complaint against Verizon. In support of its motion, Verizon submitted the affidavit of Aaron Crawford sworn to October 15, 2007. Mr. Crawford stated as follows:

Verizon New York, Inc., ("Verizon") maintains a system

of manholes and underground conduits in Kings County.

Annexed hereto a Exhibit A is the map that depicts all of

Verizon's manholes and underground conduits on Tillary St.

from Clinton St. to Bridge Street. This map depicts the

Verizon conduits and manholes as they existed on

November 10, 2001. As is clear from the map, on

November 10, 2001 and prior to, Verizon did not own,

control, or lease any manholes or manhole covers on Tillary St.

between Jay St. and Bridge St. More specifically, on or before

November 10, 2001, Verizon did not own, maintain, control, or

lease any manholes on Tillary Street 150 feet east of Jay St.

In opposition to Verizon's motion, the City submitted the affirmation of Andrew Mchan, Esq., dated January 2, 2008. Nowhere in that affirmation does the City claim that the manhole at issue is owned by Verizon (i.e. "telephone M/H). Inexplicably, the Service Request Inspection Detail submitted in support of the City's instant motion which purports to show that the manhole was owned by Verizon was not provided to the Court in opposition to Verizon's motion

The Court in considering the City's motion may take Judicial Notice of the affidavit of Mr. Crawford previously filed in this action (Friedman v Carey Press Corp., 117 AD2d 568 [1st Dept 1986].) Under these circumstances, there are clear issues of fact as to whether the manhole was a "Telephone M/H" as reported by the City employee or whether it was a City manhole that the City neglected to repair. If it was a City manhole, the City had notice under Bruni. Moreover, even if it was a non-City

[*4]Clark

v

The City of New York et. al.

Index No.3233/03

____________________________________________________________________ ________________

manhole cover, where, as here, the City receives notice of an allegedly dangerous condition on a public roadway that the City is required to maintain, the written acknowledgment is sufficient to give the City notice of the condition. To hold otherwise would allow the City license to ignore dangerous street conditions[FN1]

Accordingly, the City's motion for summary judgment is denied

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

September 30, 2009 Footnotes

Footnote 1:. At oral argument, the City argued for the first time that the City had no obligation to repair the manhole because of the "12 inch rule". There is no support in the record to establish that the defect was limited to 12 inches.