Doumbia v City of New York

[*1] Doumbia v City of New York 2009 NY Slip Op 52792(U) Decided on August 25, 2009 Supreme Court, Bronx County Victor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 25, 2009
Supreme Court, Bronx County

Mahamadou Doumbia, Plaintiff(s),

against

The City of New York, and THE NEW YORK CITY TRANSIT AUTHORITY, JJC CONSTRUCTION CORP., Defendant(s).



26920/1999

Paul A. Victor, J.

Plaintiff Mahamadou Doumbia [hereinafter plaintiff] moves for renewal of the motion by defendant JJC Construction Corp.[ hereinafter defendant], dated January 6, 2006, which had granted summary judgment in favor of that defendant.

FACTUAL BACKGROUND

On July 13, 1999, at approximately 11 p.m., the pedestrian plaintiff was struck by a vehicle while he was walking in the roadway on the Grand Concourse near its overpass with Tremont Avenue. At the time of the accident, defendant JJC was involved in reconstruction of the roadway and bridge pursuant to its contract with the New York City Department of Transportation. Under the terms of the City's Revised Maintenance and Protection of Traffic Plan (MPT) a corridor had been set up for pedestrians which contained concrete barriers on each side and a metal fence on top. There were also traffic cones placed in the street running along the outer barrier.

Immediately prior to the accident, the plaintiff exited from an underground subway station and walked along the Grand Concourse between the traffic cones and the outside concrete divider. As he did so, he was struck from behind by a vehicle.

THE PRIOR MOTION

At the conclusion of discovery, all defendants moved for summary judgment and [*2]dismissal of the complaint against them. The motions by the New York City Transportation Authority, and the City of New York were denied on the grounds of untimeliness. The motion by defendant JJC was granted. In its decision , dated January 4, 2006, the Court stated: "The motion by defendant JJC is granted. It is evident that the plans and specifications provided by the City set forth in detail the safety requirements of the project, and JJC was entitled to rely on those plans and specifications. Aerial photographs indicate that the pedestrian walkway was not, on its face, so imperfectly designed as to put the defendant on notice that the work was dangerous and likely to cause injury".

THE PRESENT MOTION

Contentions of Plaintiff Mahamadou Doumbia

Plaintiff claims that renewal should be granted based upon "newly discovered evidence". Specifically, he alleges that after the prior motion for summary judgment was granted, his attorney was preparing the matter for trial against the remaining defendants. In the course of that preparation, the attorney met with Donald Zanfardino, the principal of JJC. In the course of their conversation, Zanfardino supposedly told them that he was sympathetic to the plaintiff's claims; that the pedestrian walkway which was previously believed to have been open at the time of the accident was not; that the MPT, which envisioned that the job would be performed in one-quarter increments could not be accomplished in that manner; and that he was aware of several other pedestrian accidents in that area due to the poorly revised MPT Plaintiff's counsel alleges that at the time of the original summary judgment motion, he was unaware that the walkway was actually closed, and that he was therefore not able to argue that point in the original motion. Plaintiffs counsel also claims that, after his meeting with Zanfardino, his claims against the remaining defendants were dismissed by the trial court, which indicated that the decision on the summary judgment motion was the "law of the case" that the MPT was not negligent in its terms. Since Zanfardino "admitted" that the MPT was, in fact, unworkable, counsel seeks renewal on the summary judgment motion since this new information would effect not only the original summary judgment decision, but also the decision made by the trial court as to the "law of the case".

In support of its motion, plaintiff also supplies an affidavit from a traffic safety engineer, Nicholas Bellizzi. He concluded that, based upon his own review of the revised MPT and "in the light of Mr. Zanfardino's admissions to [plaintiff's counsel]" work was being done in both the Northwest and Southwest quadrants of the construction site at the time of the accident, and the pedestrian walkway could therefore not have been opened. He also alleges, based upon his review of the logs maintained during the course of the construction, that the work being undertaken at the time of the accident would have necessitated shutting down the pedestrian walkway, and that there was no alternative pedestrian walkway open at the time.

Plaintiff also supplies an affidavit from Jose Roberto Lagos, which states that the photographs of the scene of the accident referred to in the motion papers were taken "no later than July 21 1999, 8 days after the plaintiff's accident".

Contentions of Defendant JJC Construction

Defendant JJC argues that the plaintiff has provided no basis for renewal, since his entire [*3]motion is premised on a conversation plaintiff's counsel supposedly had with Zanfardino which would be hearsay, and is not presented in admissible form. Indeed, the defendant supplies an affidavit from Zanfardino where he denies the statements which plaintiff's counsel attributed to him; reiterates that the protected way at the construction site was open for pedestrian traffic until approximately 1 week after the plaintiff's accident; and states that the photographs attached to plaintiff's motion; (which have also been utilized on the prior motion and were referred to in the court's summary judgment decision) must have been taken later than the day of the accident, based upon his view of the progress of the work relative to the condition of certain concrete bridge slabs.

The defendant also argues that, without admitting the veracity of the statements which plaintiff's counsel attributed to Zanfardino, the plaintiff's counsel has failed to demonstrate why he was unable to obtain this information during the discovery process when he had access to all witnesses, and was clearly in possession of the work logs and photographs which he utilizes in the motion to renew. The defendant also contends that the plaintiff did not testify at his examination before trial that the walkway was closed (thereby forcing him to walk in the street between the cones and the outer concrete barrier), but that he walked in the roadway because he saw others doing the same thing, and that he claimed there was inadequate signage in the area directing which way pedestrians should walk.

The Hearing

Because of differing claims raised with reference to the alleged statements made by Zanfardino, as well as the additional evidence presented, this court ordered that a hearing be held. At the hearing, testimony was given by two witnesses: Elliot Lewis and Donald Zanfardino.

Elliot Lewis testified that he is an attorney employed by the firm which represents the plaintiff. He assumed responsibility for the handling of this file after the motion for summary judgment was granted. He acknowledged that, after the motion for summary judgment had been granted as to JJC, a notice of appeal was filed but not perfected. In preparation for trial of the matter he appeared at several court conferences, and ultimately, in the fall of 2007, began to make trial preparations. He spoke to the photographer, Jose Lagos, who had taken the pictures used in the motions, and established that he took photographs on two separate occasions after the accident: on July 21, 2007 and July 30, 2007. He also spoke to Nicholas Bellizzi, who the plaintiff intended to use as an expert witness, in the spring of 2007. At that time, Bellizzi had all of the deposition transcripts and discovery previously exchanged in the case.

In September of 2007, Lewis signed trial subpoenas which were served on various facilities and witnesses. In response to the subpoena served upon him, he received a phone call from Donald Zanfardino. The phone call resulted in their agreement to meet at a restaurant in the Bronx for lunch. At this meeting, Lewis showed Zanfardino most of the photos of the scene contained in his file, and also discussed with him the revised MPT. He claims that Zanfardino told him at the meeting that the walkway in question was closed at the time of the plaintiff's accident, and that the revised MPT was unworkable because it envisioned the work being done in quadrants in a manner that was impossible to achieve. He denied that, during the discussion, Zanfardino asked to see copies of the work logs to verify the dates of the specific work being undertaken at various points. Supposedly, Zanfardino also admitted to him that both the original [*4]and revised versions of the MPT were dangerous because they did not provide for a pedestrian walkway to be opened when the western side of the construction site was being worked upon, and that he was aware of other accidents that occurred in that area where pedestrians were injured by passing vehicles.

Donald Zanfardino testified that he was the principal of defendant JJC Construction Corporation. He admitted that he had received a subpoena from the plaintiff's office in September of 2007 to appear at an upcoming trial in the matter. He telephoned the plaintiff's attorney, and spoke to Elliot Lewis, and expressed concern that he was going to have to spend an undue amount of time in court since he was the sole proprietor of his business. Lewis indicated to him that he merely wanted Zanfardino to authenticate the revised MPT plan, and if they were to meet before hand to discuss it the time spent at the meeting would result in a decrease the amount of time that Zanfardino would have to spend in court. Zanfardino said that they met at a restaurant for lunch, and that during that meeting he indicated to Lewis that the original MPT Plan had been dangerous since it did not accommodate pedestrian traffic in the area (including several elementary schools), but that the revised MPT eliminated the problems with the original version. He admitted that there had been a prior "stop work order" because of the original deficiencies in the MPT, but stated that once the revised MPT was put in place, work was resumed. He was shown several photographs of the area at the time of this meeting, and Lewis asked him if they depicted the pedestrian walkway as being closed. Zanfardino said he could not tell from looking at the photographs, and needed to look at the work logs. Zanfardino denied telling Lewis that he was aware of several fatalities involving pedestrians at the construction site, but indicated that he was aware of other pedestrian accidents that had occurred outside of the construction zone. He denied ever telling Lewis that the plan for doing the work in "quadrants" in that area was unworkable.

During the course of the hearing, Zanfardino was questioned extensively by plaintiff's counsel regarding the construction site, the configuration of the temporary pathways, and when the pedestrian walkway was closed . Zanfardino went through the work logs beginning on June 29, and based upon the work indicated on each of the days noted in the logs, stated that the walkway could not have been shut down earlier than July 15 (two days after the plaintiff's accident), and was probably closed sometime between July 15 and July 17. There was no specific mention in the log however, as to the precise date that the walkway was closed to pedestrians.

APPLICABLE LAW

CPLR Rule 2221, entitled, "Motion affecting prior order," provides in pertinent part: (d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or

misapprehended by the court in determining the prior motion, but shall not

include any matters of fact not offered on the prior motion... (e) A motion for leave to renew:

1. shall be identified specifically as such; [*5]

2. shall be based upon new facts not offered on the prior motion that would

change the prior determination or shall demonstrate that there has been a

change in the law that would change the prior determination...

While related to each other in purpose to some degree, motions to reargue and to renew are distinct in that the motion to reargue is based on no new proof; it is merely an attempt to get the Court to change its mind about a previous decision. In comparison, the motion to renew is based on proof not used in the previous motion. However, courts are lenient in terms of considering a motion that is improperly labeled . For instance, if a motion is based upon new proof but is labeled as one for reargument, the courts will treat it as one to renew. Turkel v. IMI Warp Knits, Inc. 50 AD2d 543 (1st Dept. 1975). While a motion to reargue must be made within the time to appeal from the original decision, a motion to renew can be made at any time.

A motion to renew is based upon the discovery of material facts which existed at the time the prior motion was made, but were not then known to the party seeking renewal, and for that reason not disclosed to the court. (Foley v. Roche, 68 AD2d 558 [1st Dept. 1979]; Sanatass v. Consolidated Investing Co., Inc., 2009 WL 1018123, 2009 NY Slip Op 50698U, 1 (NY Sup. Ct. 2009).

Renewal is not, however, a second chance given to parties who have not exercised "due diligence" in making their first factual presentation (Rubinstein v Goldman, 225 AD2d 328[1st Dept 1996], quoting Matter of Beiny, 132 AD2d 190 [1st Dept 1987]; Chelsea Piers Management v Forest Elec. Corp., 281 AD2d 252 [1st Dept 2001]); Boudreau v. Broadway Houston Mack Dev., LLC, 21 Misc 3d 1131[a], 2008 NY Slip Op 52291U[ 2008].

While hearsay evidence may be admissible in opposing a motion for summary judgment, there must be an acceptable excuse for failure to tender the proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065[1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [ 2d Dept. 2000]).

Although hearsay may be used to oppose a summary judgment motion, such evidence is insufficient to warrant denial of summary judgment where it is the only evidence submitted in opposition (Navarez v NYRAC, 290 AD2d 400 [1st Dept. 2002]. For example, alleged new evidence consisting of unsworn statements made in taped telephone conversations have been held to be inadmissible and therefore insufficient to create an issue of fact to defeat the motion for summary judgment (See, Gomes v Courtesy Bus Co., 251 AD2d 625 [ 2d Dept. 1998] ; Adams v Alexander's Dept. Store, 226 AD2d 130 [1st Dept. 1996]; Jacobs v Schleicher, 124 AD2d 785[ 2d Dept. 1986]; Dan's Supreme Supermarkets, Inc. v. Redmont Realty Co., 261 AD2d 35 [2d Dept. 1999].

Purported "new evidence" relied upon in a motion to renew will be insufficient if solely presented through hearsay statements in an attorney's affidavit (see, Marine Midland Bank v Hall, 74 AD2d 729 [4th Dept 1980]). Likewise, an affidavit from an expert premised on inadmissible hearsay would likewise be insufficient to defeat a motion for summary judgement.( Briggs v. 2244 Morris, L.P., 30 AD3d 216 [1st Dept. 2006][plaintiff's expert affidavit on the [*6]issue of negligence of defendant plumbing company lacked any probative value since it was based on assumptions that lacked evidentiary support]; see also, Quinn v Artcraft Constr., 203 AD2d 444 [ 2d Dept.1994].)DISCUSSION

The plaintiff's motion for renewal is based upon the alleged statements made by Donald Zanfardino at his meeting with Elliot Lewis in September of 2007, during which Zanfardino is reported to have said that the pedestrian walkway was closed at the time of the plaintiff's accident, and that the revised MPT was dangerous. These alleged statements were placed before the court in the instant motion through the affidavit of Elliot Lewis, and via testimony provided by Lewis at the hearing conducted herein. Although these are out of court statements submitted for the truth of their contents, they would also constitute an "admission against interest" by Zanfardino, and therefore would be exceptions to the hearsay rule. Consequently, they constitute proof in an admissible form for a motion to renew.

The court is aware that Zanfardino has denied ( in his affidavit and by testimony) making the statements Lewis attributed to him. However, his denials go to the weight of the testimony, not its admissibility. Thus, the credibility issues raised should be resolved by the trier of fact.

If the court had been aware at the time of its prior decision of a statement from Zanfardino to the effect that the walkway was closed at the time of the plaintiff's accident, it would not have granted the motion for summary judgement, which specifically referred to the plaintiff choosing not to utilize the protected pedestrian walkway. Likewise, a statement from Zanfardino casting doubt on the effectiveness of the revised MPT would also have led this Court to deny JJC's motion for summary judgment. Indeed, if Zanfardino had stated that the revised MPT was dangerous, then a question of fact would have been created as to whether the plans and specifications were "so apparently defective that an ordinary contractor who utilized ordinary prudence would have been put on notice that the work was dangerous and likely to cause injury".

By this decision, this Court makes no finding as to whether or not the revised MPT was defective, whether JJC should have relied upon it, or whether the revised MPT contributed to the happening of the accident. This court's finding is that, in light of the contested admissions made by Zanfardino, questions of fact now exist as to all of these issues. "[T]here is a judicial preference to decide cases on their merits". See, Frank v. Martuge, 285 AD2d 938 [3d Dept. 2001];Lucas v United Helpers Cedars Nursing Home, 239 AD2d 953 [3d Dept. 1997]; Hann v Morrison, 247 AD2d 706 [3d Dept. 1998]. It is this Courts belief that it is preferable for parties to have their claims and defenses heard and decided at trial, by a jury, except in those rare cases where issues may be decided as a matter of a law.

Accordingly, the motion to renew is granted. Upon renewal, the Court reverses its prior decision and denies the motion for summary judgment made by defendant JJC. This constitutes of the decision and order of the court.

Dated: August 25, 2009___________________________ [*7]

Hon. Paul A. Victor