Bigman v City of New York

Annotate this Case

Download PDF

Bigman v City of New York 2012 NY Slip Op 30362(U) February 14, 2012 Supreme Court, New York County Docket Number: 116044/07 Judge: Barbara Jaffe 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. SCANNED ON 211612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ,- Index Number : 116044/2007 BIGMAN, MARLENE - id-. PART vs CITY OF NEW YORK I Sequence Number : 003 MOTlONDATE SUMMARY JUDGMENT MOTION SEQ. NO. 3 ,were read on thln motion tonor Notlce of MotlonlOrder to Show Cause - Afldavlh - Exhiblta Anlwsring Affldavltr - Exhlbltn The followlng papers, numbered 1 to ~~~~ &--A sJqr\ 7 - A1 -)IN;s). I IN O W . 3 Replylng Affldavlts Upon the fomgolng paperp, It I ordered that this motion I s s NEW YOflK COLII\ITY CLERK S OFFICE Dated: ./h//lLFEB 1 4 2 W -3 i BARB&JM , ,J.S.C. ,,/ E &N-FIk% 61SPOSITION ..................................................................... 0 CASE DISPOSED &E ND 0GRANTED IN PART OTHER 2. CHECK AS APPROPRIATE: ........................... MOTION is: 0GRANTED 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE I. CHECK ONE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 X ________~_______rr____ll___r__________r_-------~~----------------"----------- ALLISON BIGMAN, as Executor of the Estate of MARLENE BIGMAN, Deceased, Index No. 116044/07 Argued: Motion Seq. No.: Motion Cal. No.: Plaintiff, -against- 11/15/11 003 18 DECISION AND ORDER THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, and THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, FILED FEE 16 2012 BARBARA JAFFE, J.S.C.: For plaintiff: Mitchell D. Frankel, Esq. Sussman & Frankel, LLP 805 Third Avenue, 12'h Floor New York,NY 10022 212-688-8895 - . NEW YOHK For CiGPuNTY CLERK'S OFFICE Zacharie Harden, ACC Michael A. Cardozo Corporation Counsel 100 Church Street New York, NY 10007 2 12-788-0650 By notice of motion dated September 1,20 1 1, plaintiff moves pursuant to CPLR 32 12 for an order granting her summary judgment on the issue of liability. Defendants oppose. 1. RACKGROUND On June 25,2007, decedent tripped and fell on an uneven portion of sidewalk adjacent to the JHS 47 School, which is located at 225 East 23rdStreet in Manhattan. (Affirmation of Mitchell D. Frankel, Esq., dated Sept. 1,2011 [Frankel Aff.], Exh. C). On September 24,2007, decedent was examined pursuant to General Municipal Law (GML) 5 50-h, testifying that her left foot caught on a raised portion o f sidewalk running parallel to the direction in which she was walking. (Id., Exh. E). According to her, she could not see the defect before tripping on it, although nothing covered it, and the defect was approximately one to one-and-a-quarter inches higher than the adjacent portion of sidewalk. (Id.). [* 3] On or about November 26,2007, decedent commenced the instant action with the filing of a summons and verified complaint, asserting negligence claims against defendants based on their control and maintenance of the sidewalk. (Id.,Exh. B). Sometime thereafter, defendants joined issue with service of their answer. (Id). On April 1, 2008, decedent served defendants with a verified bill of particulars reflecting that the defect on which she tripped is located approximately 45-50 feet west of the curb at the [nlorthwest comer of 2Yd Street and [Second] Avenue, and approximately in the middle of the sidewalk. (Id.,Exh. C). Subsequently, decedent, through a Freedom of Information Law request, obtained three notices of claim previously served on defendants. (Id.,Exh. D). The first, served on March 21, 1996, specified that the claimant had tripped on an uneven sidewalk which resulted in a raised crack at or about a location of approximately 65 feet west of the entrance to 225 East 23rdStreet. (Id.). The second, dated December 4,1998, reflects that the claimant tripped on a very uneven) portion of sidewalk in front of the bus stop that is adjacent to the subject premises. (Id). According to the third, served on May 26, 1999, the claimant tripped on a raised portion of the sidewalk area [ ] about 1-2 inches high and 2 feet in length adjacent to the subject premises, about 10 feet west of [the] door entrance . . . and about 6 feet from [the] curb line. (Id.). Sometime before July 6, 2009, decedent passed away, and Allison Bigman, her daughter and executor of her estate, successfully moved to be substituted as plaintiff. (Id ,Exh. D . ) By affidavit dated May 19,2009, plaintiff states, in pertinent part?that she witnessed decedent s accident and that decedent tripped on andor against the raised edge of [a] sidewalk flag[]. (Id., Exh. F). 2 [* 4] By affidavit s f the same date, Scott Silbeman, a professional engineer, states that the defect on which decedent tripped, a raised sidewalk edge created by two misleveled or misaligned sidewalk flags which created a vertical grade differential of one (1) inch, constituted a tripping hazard. (Id., Exh. CY). In coming to this conclusion, he relied on a site visit, decedent s GML 0 50-h hearing transcript, plaintiffs affidavit, relevant sections of the New York City Administrative Code, other sidewalk safety publications, and good and accepted engineering practices. ( I d ) . Also, according to him, the defect was: caused and created by the owner of the sidewalk when approximately six (six) sidewalk flags were replaced sometime prior to [decedent s] accident. When the sidewalk flags were replaced[,] they were improperly and negligently placed causing the [ J one (1) inch vertical grade differential. It is also apparent that the subject sidewalk was never properly maintained or repaired after this installation , . . . thereby creating the subject defecthazard . . . , If this sidewalk was maintained properly, a safe means of egress would have been provided. (Id.). On June 28,2010, defendants responded pursuant to a March 29,2010 discovery order, providing, inter alia, an April 28,2004 notice of violation (NOV) reflecting that a New York City Department of Transportation (DOT) inspection of the subject sidewalk uncovered the following defects : broken, trip hazard, patchwork, [and] structural integrity. (Id., Exh. H). On the NOV, the DOT requires the replacement of 1 175 square feet of sidewalk. (Id). At an examination before trial held on January 2 1,201 1, DOT records searcher Roy C o m e r testified that an inquiry corresponding to the April 28 NOV reflects that defendant New York City Board of Education owns the subject premises and that the defects were never repaired. (Id., Exh.J). TI. CONTENT10NS Plaintiff claims that defendants were negligent in failing to maintain the sidewalk * 3 [* 5] pursuant to New York City Administrative Code $ 7-2 10, as the defect on which she tripped constituted a tripping hazard, and the NOV and 1996, 1998, and 1999 notices of claim provided defendants with prior written notice of same. (Id,), In any event, she asserts that Silbeman s affidavit establishes that defendants created the defect. (Id.). In opposition, defendants maintain that plaintiff has failed to establish prima facie entitlement to summary judgment, as a violation of the New York City Administrative Code merely constitutes some evidence of negligence, and no evidence was offered demonstrating that the defects identified in the NOV and the notices of claim correspond to the defect on which decedent tripped. (Affirmation of Zacharie Harden, ACC, in Opposition, dated Sept. 23,201 1). They also assert that Silberman s speculation as to the cause of the defect fails to address whether the installation of the flags immediately caused it, and plaintiff addresse3 heither causation nor decedent s comparative negligence. (Id). In reply, plaintiff contends that the NOV is specific to the subject sidewalk, as it includes a map on which the defects were identified, thereby constituting prior written notice. (Affirmation of Mitchell D. Frankel, Esq., in Reply, dated Sept. 28,201 1). In any event, she denies that Silberman s opinion is speculative as to the cause of the defect insofar as he identifies good and accepted engineering practice in concluding that the defect resulted from defendants installation of the sidewalk flags, and claims that his affidavit reflects that this installation immediately resulted in the defect. (Id.). 111. ANALYSG A party seeking summary judgment must demonstrate, prima facie,entitlement to judgment as a matter of law by presenting sufficient evidence to negate any material issues of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [19SS]). If the movant meets - 4 [* 6] this burden, the opponent must rebut the prima facie showing by submitting admissible evidence, iy demonstrating the existence of factual issues that require trial. (Zuckerman v Ct of New York, 49 NY2d 557,562 [1980]; Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872 [1980]). Otherwise, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 NY2d at 853). a e To establish a prima facie case of negligence, a plaintiff must show duty, breach, and proximate cause. (Kenney v C t ofNew York, 30 AD3d 261,262 [lst Dept 20061). Pursuant to iy New York City Administrative Code 8 7-2 10, and subject to certain exceptions not pertinent here, the owner of real property abutting a sidewalk has the duty to maintain such sidewalk in a reasonably safe condition and is liable for injuries arising from its failure to do so. (Vvcetovic v Epsom Downs,Inc., 10 NY3d 517,520-21 [2008]). In order to demonstrate entitlement to summary judgment on the issue of liability, a plaintiff must not only establish aprima facie claim of negligence but also must demonstrate that there exist no triable factual issues as to whether she was comparatively negligent. (Thoma v Ronai, 82 NY2d 736 [1993]; CaIcano v Rodriguez, -AD3d -, 2012 NY Slip Op 110 [lSt Dept, Jan. 12,20121). Here, having failed to address decedent s comparative negligence, or offer any evidence reflecting her freedom from same, plaintiff has failed to demonstrate entitlement to summary judgment. B m Prior written notice Pursuant to New York City Administrative Code 6 7-20 1(c)(2), no civil action may be maintained against City arising from a dangerous or defective condition on a sidewalk unless - 5 [* 7] plaintiff demonstrates that City received prior written notice of the condition. A plaintiff must demonstrate that City received such notice regardless of whether City owns the property abutting the sidewalk where her accident occurred. (Sondervan v Ct ofNew York, 84 AD3d 625 [l iy Dept 201 11). Here, although the NOV reflects that the subject sidewalk was broken and contained or constituted a trip hazard, and although plaintiff asserts that it was accompanied by a map illustrating the location of these defects, no such map has been provided, and the NOV itself does not indicate where on the sidewalk the defects were located. Moreover, although the notices of claim reflect that portions of the sidewalk were uneven, they contain different descriptions of the defects locations, and plaintiff offers no evidence demonstrating that they refer to the defect on which she tripped. Therefore, she has failed to demonstrate that no triable factual issues exist as to whether defendants obtained prior written notice. (See Ortsrnan v Town ofoyster Bay, 178 AD2d 588 [2d Dept 19911 lpreviously served notice of claim that failed to specify exact location of defect did not constitute prior written notice, as [tlhere is absolutely no indication from the prior notice of claim that the defective condition in that case, which could have been anywhere on the basketball court, was the same defective condition involved in this case ]; see also Sondervan, 84 AD3d 625 [where City admitted that Big Apple Map showed defect within vicinity of accident site, [dlisputes as to whether the location and nature of the defect are suficiently portrayed so as to bring the condition to the municipality s attention involve factual questions appropriately resolved at trial ]). C. Cause or create Where City has not received prior written notice of a defect, it may still be held liable if plaintiff demonstrates that the defect immediately resulted from City s performance of repairs or - 6 [* 8] that City put the sidewalk to a special use. (Yarborough v City oflvew Yorkl 10 NY3d 726 [2008]; Amabile v City of Bujlaalo, 93 NY2d 471 [ 19991; Bielecki v City of New York, 14 AD3d 301 [lBt Dept 20051). Here, although Silbeman opines that the defect was caused or created when the sidewalk flags were installed, his opinion is wholly conclusory absent evidence as to City s installation of same or any indication as to the basis for his opinion. Moreover, as he claims that the defect also resulted from the sidewalk owner s failure to maintain the sidewalk, his affidavit does not demonstrate that the defect immediately resulted from City s installation of the sidewalk flags, Thus, absent any allegation that City put the sidewalk to a special use, even if plaintiff had demonstrated that she was not comparatively negligent, she would still not be entitled to summary judgment. In light of this determination, the parties contentions as to whether a violation of the New York City Administrative Code constitutes negligence and whether plaintiff established causation need not be considered. IV,CONCJLJSION Accordingly, it is hereby FILED F 16 2012 B ORDERED, that plaintiffs motion for summaryjudgment is denied. ENTER: DATED: February 14,20 12 New York, New York FEB 1 4 20Q \TI h NEW YORK CQUNTY CLERKS OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.