Rivera-Irby v City of New York

[*1] Rivera-Irby v City of New York 2009 NY Slip Op 52727(U) [26 Misc 3d 1216(A)] Decided on February 26, 2009 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2009
Supreme Court, Bronx County

Lourdes Rivera-Irby and Kareem Irby, Plaintiffs

against

City of New York and New York City Department of Parks and Recreation, Defendants



15242/2005



For Plaintiffs

Jean M. Prabhu Esq.

Burns & Harris

233 Broadway, New York, NY 10279

For Defendants

Johan A. Hernandez, Assistant Corporation Counsel

198 East 161st Street, Bronx, NY 10451

Lucy Billings, J.

I.BACKGROUND

Plaintiffs sue to recover for personal injuries and loss of services sustained November 13, 2004, when plaintiff Lourdes Rivera-Irby fell in St. James Park in Bronx County, property owned by defendant City of New York and maintained by its Department of Parks and Recreation. Defendants move to dismiss or for summary judgment dismissing the complaint, C.P.L.R. §§ 3211(a)(7), 3212(b), on the ground that they received no prior written notice of a defect where Rivera-Irby fell and therefore are not liable for plaintiffs' injuries. Plaintiffs cross-move for summary judgment on defendants' liability. C.P.L.R. § 3212(b) and (e). Upon oral argument and after attempts to settle the action, the court denies defendants' motion and denies plaintiffs' cross-motion except to the extent set forth, each for the reasons explained below.

II.SUMMARY JUDGMENT STANDARDS

Although defendants seek dismissal based on the pleadings, C.P.L.R. § 3211(a)(7), as well as summary judgment, defendants consistently rely on evidence outside the pleadings that may be considered only in the context of a summary judgment motion. Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); Leon v. Martinez, 84 NY2d 83, 87-88 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 AD2d 128 (1st Dep't 2001); Ladenburg Thalmann & Co. v. Tim's Amusements, 275 AD2d 243, 246 (1st Dep't 2000). To obtain summary judgment, the moving parties, whether defendants or plaintiffs, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384 (2005); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). Only if the moving parties satisfy this standard, does [*2]the burden shift to the opponents to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d at 315; Darby & Darby v. VSI Intl., 95 NY2d 308, 315 (2000); Judith M. v. Sisters of Charity Hosp., 93 NY2d 932, 933-34 (1999). Even if the opposition is insufficient, the court still must deny summary judgment if the moving parties fail to meet their initial burden. Cuevas v. City of New York, 32 AD3d 372, 373 (1st Dep't 2006); Vaughn v. 1720 Unico, Inc., 30 AD3d 315, 316 (1st Dep't 2006); Bowie v. 2377 Creston Realty, LLC, 14 AD3d 457, 459 (1st Dep't 2005); Prenderville v. International Serv. Sys., Inc., 10 AD3d 334, 338 (1st Dep't 2004).

III.DEFENDANTS' MOTION

New York City Administrative Code § 7-201(c)(2), the "Pothole Law," imposes a condition precedent to actions against the City for personal injury from a defect in any street, sidewalk, or crosswalk, requiring plaintiffs to plead and prove that the City received prior written notice of the defect, unless the City negligently created the defect. Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 520 (2008); Speach v. Consolidated Edison Co. of NY, Inc., 52 AD3d 404 (1st Dep't 2008); Belmonte v. Metro Life Ins. Co., 304 AD2d 471, 474 (1st Dep't 2003); Baez v. City of New York, 278 AD2d 83, 86 (1st Dep't 2000). See Roldan v. City of New York, 36 AD3d 484 (1st Dep't 2007); Hunter v. City of New York, 23 AD3d 223, 224 (1st Dep't 2005). The written notice requirement applies to the stairs leading from a public park where Rivera-Irby fell. Woodson v. City of New York, 93 NY2d 936, 937 (1999).

Plaintiffs may establish prior written notice of a defect through maps prepared and served on the City by the Big Apple Pothole & Sidewalk Protection Committee. Katz v. City of New York, 87 NY2d 241, 243 (1995); Frank v. City of New York, 240 AD2d 198 (1st Dep't 1997); Acevedo v. City of New York, 128 AD2d 488, 489 (2d Dep't 1988). See Espinosa v. JMG Realty Corp., 53 AD3d 408, 409 (1st Dep't 2008). Defendants claim not that plaintiffs have failed to plead prior written notice, C.P.L.R. § 3211(a)(7), but only that no evidence demonstrates such notice. See Aff. of Johan A. Hernandez, Ex. B ¶¶ 40-41. In the context of defendants' motion for summary judgment, however, defendants bear the burden of demonstrating their lack of notice in the first instance. C.P.L.R. § 3212(b); Yarborough v. City of New York, 10 NY3d 726, 727 (2008); Marshall v. City of New York, 52 AD3d 586, 587 (2d Dep't 2008).

Eileen Brown, defendant Department's Deputy Chief of Administration, attests that she "initiated a search" for reports of an incident November 13, 2004, involving Rivera-Irby and for work orders or complaints relating to the area where she fell for two years before. Hernandez Aff., Ex. E ¶¶ 2-3. "No records were found." Id. This search was conducted at 1 Bronx River Parkway," Bronx County, but Brown does not identify the significance of the facility there. Id.

Brown does not indicate that she personally searched for the records and that the search results are her own findings. Insofar as her affidavit is based on information from unidentified employees regarding the absence of records relating to the site, that information is insufficient to demonstrate a lack of notice, because Brown neither identifies those employees, nor produces the records searched. Castro v. New York Univ., 5 AD3d 135, 136 (1st Dep't 2004); Dempsey v. Intercontinental Hotel Corp., 126 AD2d 477, 479 (1st Dep't 1987); Anderson v. Livonia, Avon & Lakeville R.R. Corp., 300 AD2d 1134, 1135 (4th Dep't 2002). See Flick Lbr. Co. v. Breton Indus., 223 AD2d 779, 780 (3d Dep't 1996). Nor do those employees themselves provide affidavits. Donovan v. City of New York, 239 AD2d 461 (1st Dep't 1997).

Vincent White, District Park Supervisor, testified at his deposition that he inspected parks in his district, including St. James Park, three times per week, noted conditions needing repair in a notebook, and then filled out a work order in triplicate at his office. White discarded the notebooks when they were full. He further testified that work orders were generated for patchwork of park stairs and were stored at Harris Field, but admitted he did not search Harris Field for records. White was unaware if the Department's masonry unit, which performed repairs, maintained the unit's own records. [*3]

White thus makes clear that he did not search all sources of defendant Department's records relating to repairs, complaints, or other incidents in the area of Rivera-Irby's fall and also raises a question whether Brown searched all those sources. He also makes clear that he destroyed Department records, his notebooks, that may have recorded notice regarding a defect in the area of Rivera-Irby's fall and raises a question whether other Department records of such notice were discarded. Even if his notebooks or the Department's other records were discarded, defendants still may have received written notice before the records were discarded. In sum, rather than absence of written notice, defendants' evidence shows defendants did not search all sources of recorded notice, and at least one source of such a record was destroyed.

Brown and White also failed to attest whether they searched the records of other agencies, such as the Department of Transportation, which may have maintained records of park stairs repairs. Since any City agency would qualify as a recipient of written notice to the City, a search of other agencies' records is necessary to establish defendants' lack of notice. N.Y.C. Admin. Code § 7-201(c)(2); Bruni v. City of New York, 2 NY3d 319, 324 (2004); Vertsberger v. City of New York, 34 AD3d 453, 455 (2d Dep't 2006). In fact White testified specifically that complaints were made via telephone to 311, which were recorded; and that St. James Park was refurbished from 2002 to 2004, which likely generated construction and renovation records; and that he did not search either source of records. Nor did Brown specify that the search at 1 Bronx River Parkway encompassed those records.

Regardless of any lack of written notice, however, defendants utterly fail to address whether they created the condition that caused Rivera-Irby's fall, let alone eliminate the factual issues defendants' witness White raises regarding their creation of a hazardous condition through patchwork repair or refurbishing of the park stairs area. Their creation of a hazard is, of course, an alternative basis for their liability. Santana v. City of New York, 56 AD3d 295 (1st Dep't 2008). See Speach v. Consolidated Edison Co. of NY, Inc., 52 AD3d 404. Therefore, for each of the above reasons, the court denies defendants' motion to dismiss the complaint or for summary judgment. C.P.L.R. §§ 3211(a)(7), 3212(b).

IV.PLAINTIFFS' CROSS-MOTION

Plaintiffs cross-move to preclude defendants from introducing evidence supporting their lack of written notice or opposing their receipt of written notice and, in the absence of such evidence, for summary judgment on their liability or at least on their receipt of written notice. In orders dated August 4, 2005, and February 8, 2007, the court (Victor, J.) directed defendants to produce incident reports; maintenance, repair, and complaint records regarding the injury site; the address of defendants' masonry records keeper; and a witness identified in depositions. Plaintiffs claim defendants' failure to provide that court ordered disclosure mandates preclusion.

Although defendants did not produce the information and witness ordered, plaintiffs filed a note of issue over four months before making their current cross-motion. Because plaintiffs' filing of the note of issue waived deficiencies in disclosure responses provided by defendants, it would have been more prudent for plaintiffs to move for penalties for noncompliance with required disclosure before filing the note of issue. Melcher v. City of New York, 38 AD3d 376, 377 (1st Dep't 2007); Escourse v. City of New York, 27 AD3d 319 (1st Dep't 2006); Iscowitz v. County of Suffolk, 54 AD3d 725 (2d Dep't 2008); Simpson v. City of New York, 10 AD3d 601, 602 (2d Dep't 2004). See Gilitz v. Latham Process Corp., 258 AD2d 391 (1st Dep't 1999); Brown v. Veterans Transp. Co., 170 AD2d 638, 639 (2d Dep't 1991). On the other hand, where defendants have admitted destruction or loss of evidence sought in disclosure, plaintiffs have no expectation of compelling the disclosure. Realizing disclosure is as complete as it ever will be, they have no alternative but to certify their readiness for trial. At minimum, however, plaintiffs still could have qualified their certificate of readiness with the claimed destruction or loss of evidence. Simpson v. City of New York, 10 AD3d at 602.

Even if, when plaintiffs are caught in this predicament, their waiver of disclosure deficiencies does not extend to waiving remedies for destruction or loss of evidence requested in disclosure, plaintiffs, in seeking penalties that amount to a default judgment on liability, C.P.L.R. [*4]§ 3126(3), bear the burden to demonstrate defendants' intent to frustrate disclosure. Gonzalez v. City of New York, 39 AD3d 367 (1st Dep't 2007); Tsai v. Hernandez, 284 AD2d 116, 117 (1st Dep't 2001). The extreme remedy plaintiffs seek is warranted only if they clearly show that defendants have acted wilfully, contumaciously, or in bad faith regarding disclosure. C.P.L.R. § 3126(3); Gonzalez v. City of New York, 39 AD3d 367; Austin v. Coin Devices Corp., 234 AD2d 155 (1st Dep't 1996); Iscowitz v. County of Suffolk, 54 AD3d 725; Simpson v. City of New York, 10 AD3d at 602. Although defendants' destruction or loss of the requested records is clear from their admission, plaintiffs have not clearly established defendants' destruction or loss of material evidence in this action wilfully, contumaciously, or in bad faith. E.g., Lamanna v. Wing Yuen Realty, 256 AD2d 80 (1st Dep't 1998); Weber v. Harley Davidson Motor Co., Inc., 58 AD3d 719, 722 (2d Dep't 2009); Kirschen v. Marino, 16 AD3d 555, 556 (2d Dep't 2005). See Kirkland v. New York City Hous. Auth., 236 AD2d 170, 175-76 (1st Dep't 1997); Carroway Luxury Homes, LLC v. Integra Supply Corp., 52 AD3d 1187, 1188 (4th Dep't 2008); Abulhasian v. Uniroyal-Goodrich Tire Co., 14 AD3d 900, 902-903 (2d Dep't 2005); Miller v. Meyerhaeuser Co., 3 AD3d 627, 628-29 (3d Dep't 2004).

Nor have plaintiffs established that without the records, plaintiffs are bereft of the means to prove all the elemnets of plaintiffs' claims, such as the hazard and its causation of Rivera-Irby's claimed injuries. Melcher v. Apollo Med. Fund Mgt., L.L.C., 52 AD3d 244, 245 (1st Dep't 2008); Metropolitan NY Coordinating Council on Jewish Poverty v. Bush Term., 1 AD3d 168 (1st Dep't 2003); Tommy Hilfiger, USA v. Commonwealth Trucking, 300 AD2d 58, 60 (1st Dep't 2002); Weber v. Harley Davidson Motor Co., Inc., 58 AD3d at 722. See Carroway Luxury Homes, LLC v. Integra Supply Corp., 52 AD3d at 1188. Therefore the court denies plaintiffs' cross-motion insofar as it seeks to preclude defendants from introducing any evidence supporting their nonliability or opposing their liability for plaintiffs' injuries and to relieve plaintiffs of their burden to establish defendants' liability at trial.

Nevertheless, defendants' admitted destruction of records and their failure to search diligently and comprehensively for records regarding the condition of the stairs on which Rivera-Irby fell has deprived plaintiffs of the means to prove defendants' receipt of written notice. This proof is an essential element of plaintiffs' claim unless plaintiffs prove their alternative claim that defendants created the hazardous stairs. Standard Fire Ins. Co. v. Federal Pac. Elec. Co., 14 AD3d 213, 218-19 (1st Dep't 2004); Amaris v. Sharp Elecs. Corp., 304 AD2d 457, 458 (1st Dep't 2003); Herrera v. Matlin, 303 AD2d 198 (1st Dep't 2003); Squitieri v. City of New York, 248 AD2d 201, 203-204 (1st Dep't 1998). The consequent prejudice to plaintifffs warrants a lesser sanction. Adrian v. Good Neighbor Apt. Assoc., 277 AD2d 146, 147 (1st Dep't 2000); Weber v. Harley Davidson Motor Co., Inc., 58 AD3d at 722. See Metropolitan NY Coordinating Council on Jewish Poverty v. Bush Term., 1 AD3d 168; Tommy Hilfiger, USA v. Commonwealth Trucking, 300 AD2d at 60; Koehler v. Midtown Athletic Club, LLP, 55 AD3d 1444, 1445 (2d Dep't 2008); Conderman v. Rochester Gas & Elec. Corp., 262 AD2d 1068, 1070 (4th Dep't 1999).

To restore balance to the litigation, the court grants plaintiffs' cross-motion to the following extent. Ortega v. City of New York, 9 NY2d 69, 80 (2007). The court precludes defendants from introducing evidence supporting their lack of notice or opposing their receipt of notice and relieves plaintiffs of their burden to establish defendants' receipt of prior written notice of the condition plaintiffs claim caused Rivera-Irby's injury. C.P.L.R. § 3126(2). E.g., Adrian v. Good Neighbor Apt. Assoc., 277 AD2d at 147; Donovan v. City of New York, 239 AD2d 461; Weber v. Harley Davidson Motor Co., Inc., 58 AD3d at 722-23; Mylonas v. Town of Brookhaven, 305 AD2d 561, 563 (2d Dep't 2003). The court resolves defendants' receipt of prior written notice of that condition in plaintiffs' favor. C.P.L.R. § 3126(1); Martin v. New York City Tr. Auth., 294 AD2d 267 (1st Dep't 2002); Jackson v. City of New York, 185 AD2d 768, 770 (1st Dep't 1992). See Hotel 57 LLC v. Harvard Maintenance, Inc., 29 AD3d 462, 463 (1st Dep't 2006). Defendants still may defend against their liability, however, on the grounds that the condition was not hazardous or did not cause Rivera-Irby's claimed injuries. [*5]

V.CONCLUSION

As discussed above, the court denies defendants' motion to dismiss the complaint or for summary judgment. C.P.L.R. §§ 3211(a)(7), 3212(b). Except to the extent delineated above, the court also denies plaintiffs' cross-motion for partial summary judgment. C.P.L.R. §§ 3126, 3212(b) and (e). This decision constitutes the court's order. The court will mail copies to the parties' attorneys.

DATED: February 26, 2009

_____________________________

LUCY BILLINGS, J.S.C.