Tucker v City of New York
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Tucker v City of New York 2009 NY Slip Op 33280(U) June 17, 2009 Supreme Court, New York County Docket Number: 101463/04 Judge: Karen Smith Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. _y SCANNED ON 612412009 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: KAREN S. SMITH PART 62 Justice CARLTON TUCKER and ANTOINETTE TUCKER 101463/04 INDEX NO. 6118/09 MOTION DATE -v003 MOTION SEP. NO, THE CITY OF NEW YORK MOTION CAL. NO. The following papers, numbered 1 o 3 were read on this motion to summary IudQment t c: F Notice of Cross Motion -Affidavits Answering Affidavits - Exhibits - Exhlblts ...Memorandum - Memorandum 0 Yes YPER~NUMBERED 1 2 Replying Affidavits - Memorandum Cross-Motion: ~t, E 3 u No Upon the foregoing papers, It Is ORDERED that thls motion by defendant City of New York for summary judgment dismissing plaintiff 8 complaint pursuant to CPLR 5 3212, is granted for the reasons stated more fully below. Plaintiff brought this action to recover for injuries he allegedly suffered after he was thrown from his bicycle as a result of a defect In a tree well. The parties appeared for a final compliance conference on November 20, 2008, after whlch defendant City of New York made this motion seeking summary judgment dismissing plaintlff's complaint pursuant to CPLR 5 3212. As an initial matter, plaintiff contends that thls motion Is untimely and should be denied without consideration. Plalntlff flied the Note of Issue on or about March 3 , 2 0 0 6 , however additional discovery Issues arose and the partles continued to appear for compliance conferences, notwithstanding the Note of Issue. When the partles appeared on June 12,2008, the Court ordered that dispositive motions be made no more than 60 days from the date of the final compllance conference. The last conference was held on November 20,2008. Plaintiff argues that the motion was required to be made no later than January 1 9 , 2009, whlch Is exactly 60 days from November 20, 2008. As defendant points out in its reply papers, however, January 19,2009 was a legal holiday and, therefore, the motion was timely made on January 20, 2009. According to plaintiff, on May 2, 2003 he was riding his bicycle on the sidewalk on 13gth Street In Manhattan, New York, when he was forced to swerve to avold pedestrians. HIS blcycle entered the tree pit located in front of the premises known as 118 West 13gth Street, New York, New York. Plaintiff alleges in his Notice of Claim that there was a height differential of approximately three inches between the floor of the tree plt and the surrounding sidewalk. In addltlon, plaintiff testified that at the time of the accident, there were black plastic bags at the base of the tree, whlch allegedly obstructed his ability to see the tree or the dirt In the tree well. Although the Notice of Claim states that plalntlff was caused to "trlp" by the allegedly defective condition, at his EBT, plaintiff testified that he was caused to be thrown from his bicycle, suffering serious physical Injuries.' '. Antoinette Tucker, Carlton'c wife, alEo asserts a derivative claim. Page 1 of 4 [* 2] Defendant City of New York now moves for summary judgment dismissing plaintiff s complaint, pursuant to CPLR § 3212. The proponent of a motion for summary judgment must make a prlma facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact. (Alvarex v Prospect Hosp., 68 NYPd 320 [1987]). Once the movant has made such a showing, the burden then shifts to the opposing party to produce evldence in admissible form sufficient to establish the existence of any material issues of fact requirlng a trial of the actlon. (Zuckerman v City of New York, 49 NY2d 557 [1980]). However, where the moving party falls to make a prlma facie showing, the motion must be denied regardless of the sufficlency of the opposing party s papers. (See Winegrad v New York Univ. Med. Cfr.,64 NY2d 851 [1985]). According to the City of New York, plaintiffs complaint must be dismissed because there is no evldence that the Clty caused or created the condition, or that the Clty was given prior written notice of the alleged defect, which notice is required by NYC Adminlstratlve Code 5 7-201(~)(2). At the tlme of the plaintiffs accident, the premises at 118 West 13gthStreet, New York, New York was owned by the City of New York. The building was part of a program run by the New York City Housing Preservation and Development Agency wherein the tenants were permitted to manage the building through a tenant assoclation. Adrice Miles, who was employed by the City as a building coordinator assisting the tenant association, testifled that he never received or saw any complaints about defects regarding the sldewalk, nor did he or anyone else associated with the building engage any contractor to work on the sidewalk since 2001. The City of New York also submits the EBT transcript of William Steyer, Director of Forestry forthe New York City Parks Department In Manhattan. Steyer testified that the Department s Street Tree Division plants most trees, and the Forestry Department prunes dead trees, removes stumps, conducts emergency removal of fallen trees and hanging branches, and sometimes plants trees. Tree wells, according to Steyer, can be Installed privately or by contractors hired by the City. The Forestry Department only does inspections In response to a cornplaint about a tree well. Steyer conducted a search for complalnts regarding the subject tree well, and found none. He also testified that there was no record of inspections being done. Barbara Nickels testified on behalf of the Street Tree Division. She also searched for complaints regarding the subject tree well and found none. Flnally, the City of New York submits the affidavit of Pearline Clark, a Department of Transportation employee. Clark states that she conducted a search of the Department s records for complaints, permits, repair orders, violations, contracts, and other documents for the subject tree well for two years prior to and including the date of plalntlffs accident, and no documents were found. Clark did locate a map created by the Big Apple Map Corporation whlch was flied with the Department on October 25, 2002, which the City submlts on this motlon, whlch does not indicate any defects In the sidewalk abutting 118 West 13gthStreet, New York, New York. Plaintiff opposes the motlon, contending that Administrative Code 7-201(c)(2), the prior written notice statute, does not apply to a defect In a tree well, as the tree well is not part of a street or a iisldewalk , citing to Vucetovic vEpsom Downs, Inc., 2008 NY Slip Op 04901 (April 17,2008). According to Administrative Code § 7-201(W), No clvll actlon shall be maintained against the City for damage to property or injury to person or death sustained In consequence of any street, highway, bridge, wharf, culvert, sidewalk, or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous, or obstructed, unless it appears that written notice of the. . . condition was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice. . . . Plaintiff points out that the Vucetovic court found that the tree well falls outslde the deflnltlon of sldewalk after an examination of several sections of the Administrative Code, and argues that finding otherwise here would lead to a bizarre result. In Vucetovic,the plaintiff was Injured when he tripped and fell over raised portions of a tree well while walking down the sidewalk in Manhattan. Prior to September 14,2003, the City of New York was generally liable for accidents caused by a sidewalk defect, and a property owner could only be held liable under certain conditions, lncludlng when It caused or created the defect. Administrative Code 5 7-210, which became effective Page 2 of 4 [* 3] on September 14,2003, shifted liabllity for accidents caused by sidewalk defects to the abutting property owner and Imposed a specific duty on the owner to maintain the The trial court In Vucetovic analyzed the relevantsectlons of the Adminlstratlon Code which deflned the term sidewalk to determine whethera tree well should be considered part of the sidewalk for purposes of this shift in liability to the abutting property owner.3 Justice Gische held that a tree well is not part of the sidewalk for purposes of § 7-210, writing, Had the legislature Intended to shift responsibllity (and therefore tort Ilabillty) to the property owner for anything that is part of, or located on, a sidewalk (such as a tree well) It could and should have so articulated. (2006 NY Slip Op 3021O[U], New York County, September 18, 2006). The Appellate Division, First Department afflrmed Justice Gische s declslon and order, also noting that Administrative Code 5 18-104 entrusts the Department of Parks and Recreation with exclusive management of the City s trees and noted that that section refers to the trees as in streets , and thus somethlng separate and distinct from streets. (Vucetovlc v Epsom Downs, Inc., 2007 NY Slip Op 06577 [September 6,20071; aff dat 2008 NY Slip Op 04901 [June 3,20081). Although there Is not a wealth of case law on the subject of the statutory requirement for prior written notice as it applies to defects in tree wells, It is clear that courts have applied Adminlstratlve Code 5 7-201(~)(2) to such defects. (See Blye v Manhattan & Bronx Surface Transit Operating Authority, 124 AD2d 106,108 [l 19871 [prior written notlce to City required under Admlnistrative Code 5 394a-l.O[d], later Dept J 7-201(~)(2)]). While plalntiff urges this Court to adopt the Vucetovlc court s understanding that the term sidewalk excludes tree wells, plaintiff I rnlstaken that such an excluslon would therefore exempt defects In s tree wells from the requlrernent for prior written notlce. The language of Adrnlnistratlve Code Fj 7-201(~)(2)s 1 broader than the statutes discussed in Vucetovic, and it expllcltly requires prior written notice of any defect on the sidewalk or encumbrances thereon or attachments thereto in order to hold the Clty of New York liable for same. Plaintlff cites to no case law In which it has been held that tree wells in streets or sidewalks are not subject to the provlsions of 5 7-201(~)(2). Further, other courts have applied similar prior written notlce laws to defects in tree wells. (See, e.g., Klernan v Thompson, 73 NY2d 840, 842 [I9881 [allegation of afflrmative negligence In creating defect in tree well obviates need to prove cornpllance with Ithaca s prior written notice law]); Fohrmann v City ofBlnghamton, 2006 NY Slip Op 5877, * 2 [3d Dept, July 20, 20061 [ Inasmuch as It is undisputed that the City had never received prior written notice of the allegedly defective condition (in the tree well), summary Judgment in Its favor was, therefore, properly granted. ]). There appears, therefore, no basis for constraining the appllcation of the prior written notlce law in the manner sought by plaintiff. The City of New York has made a prima fade showing of its entitlement to judgment as a matter of law, as there is no evldence that the City recelved prior written notice of the alleged defect that caused plaintiffs injuries. Plaintiff has failed to raise an issue of rnaterlal fact in thls regard through the submission of admissible evidence. Accordingly, it Is ORDERED that this motion by defendant City of New York for an order granting it summary Judgment disrnlssing plaintlfh complalnt pursuant to CPLR 3 3212,I granted; it Is further s ORDERED that defendant serve a copy of thls declsion and order with notice of entry upon all parties and upon the Clerk of the Court (60 Centre), wlthin 30 days of entry hereof; it Is further The Court notes that, as plaintiff s accident occurred on May 2, 2 0 0 3 , Administrative Code SI 7 - 2 1 0 ( c ) ( 2 ) was not yet in effect. Administrative Code 5 7-201, at iasue here, was not discussed in any of the V u c e t o v i c decisions. Page 3 of 4 [* 4] ORDERED that upon service of a copy of this decision and order with notice of entry, the Clerk of the Court I directed to enter judgment In favor of the City of New York dismissing the complaint in its entirety. s The foregoing constitutes the declslon and order of this court. Any arguments or rellef sought not address herein have nonetheless been considered and rejected. I J U N 2 4 2009 , 4 Dated: ( i June 17,2009 ,/' I ' -Lj Hon. Karen S.Smith, J.S.C. Check one: FINAL DISPOSITION Ll NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST ;1 1 REFERENCE Page 4 of 4
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