Hogin v The City of New York

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Hogin v The City of New York 2012 NY Slip Op 30936(U) April 9, 2012 Sup Ct, New York County Docket Number: 116990/06 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. [* 1] ZANNED 0N411012012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 6 Justice . .. . - .. INDEX NO. MOTION DATE - v MOTION SEQ. NO. MOTION CAL. NO. wThe following papers, numbered 1 to were read on thla motion to/for PAPERS NUMBERED Notice of Motion/ Order t o Show Cause 1 Answering Affidavits - - Affidavits - Exhibits Exhibits ... r - 7 L -. Replylng Affidavits Upon the foregoing papers, it is ordered that thls motion 1 FILED! /,F"? iI I! 2F12 u FINAL DISPOSITION Check if appropriate: u DO N O T POS :heck one: n SUBMIT ORDERI JUDG. 0 h r PPh Wa y pc* ; -FINAL DISPOSITION REFERENCE LI SETTLE ORDER/ JUDG. [* 2] SUPREME COIJRT 01: '1.1 IE STATE OF NEW YORK COIJNTY OF NEW YORK : PAII'I' 5 Plaintiff, Motion Subm.: Motion Seq. No.: 1/17/12 003 -against- DECISION & OHDER THE CITY OF NI;W YORK, C.WNSOLIDAl'K1) EDISON COMPANY 0 NEW YORK, NTCO 1 ASPHALT, INC:., AND MANET'I'A lNIIUWRIES, INC., ' 11 ird-P arty P 1aiiitilf, ' -against- FILED. NTCO ASPHALI', INC., ND MANETTA INDUSTRIES, INC., , , AP[{ 1 3 2Gi2 'I'hird-Pai-ty Ilefkndants. ------------__________________r_________-------~--- BARBARA JAITFE, SSC: For plaintiffs: John Downing, Jr., Esq. Downing & Peck, P.C. 17 Batlcry Pl., Ste. 709 New York, N Y 10004 212-5 14-9 190 X COUNTY CLERK'S OFFICE _ _ - I _ _ _ _ _ _ I 1 ' NEW Y O M ' . ,, ,. '. ' For City: Stacy L. Cohen, ACC Michael A . Cardozo Coiporation Counsel 100 Church Si., 4Ih FI. New York, N Y 10007-260 I 212-788-0609 By ordcr to show cause datcd December 20, 201 1, plaintiffs move fbr lcavc to rencw and/or rcargue my decision a i d order datcd October 3 I , 201 I in which I graiitcd defkndant City's [* 3] motion for summary juclgrncnt and djsmisscd the complaint against it and denied plairitiffq motion to strikc or ~01111x1. City opposcs. I. HACKGROUN13 As sct forth in the prior urdcr, on August 11, 2005 plaintifl David R. IIogin was allegcdly injured wheii he trippcd and fell in a hole in the crosswalk at thc intersection of Central Park Soutldwest 59 Slrect and Sevcnth Avcnue iii Manhattan. In dismissing the coniplaint against City, I lo ouiid as follows: I h e , City established, p i m u fucie, that it reccived 110 prior writtcn notice of the sinkhole on which plaintill allegedly tripped as the [Dcpartnient of Transportation (DOT)] records rclate only to potholes which wcre repaired bcfore plaintiffs accidenl, and thc [Department of Environmental Protcction (DEI )] rccord related to a sinkliolc reflccts that DI P inspected thc area and hound no sinkhole. There is also no evidcnce demolistrating that tlic alleged hydrant leaks caused or were related to tlic sinkhole. Plaintilf failcd to ofi er any evidcnce showing that City performed work that immediately resultcd in the creation ofthc sinkholc. Rathcr, they arguc that City s failurc to inspect any tlic area and/or to discover or repair su~ iicicnt1y leaks undcr the street caused the sinkhole. Not only is their claim purcly speculative, but a claim of negligent inspection or failure to repair clnw not cstablish h a t City affirmativcly created thc defccl. (,SLY) Vega v C ily of New York, 201 1 WL 4x35685, 201 1 NY Slip Op 07161 11 Dept] [City s failure lo pcrform pcrinancnt repair of roadway defcct not ailirmalive act o l ncgligcnce]; h urrell v City qj New York, 49 AD3d 806 r2d Dcpt 20081 [failure to maintain o r rcpair roadway constitutes act of omission rathcr than affirmative negligencc]; Silva v C ity ($New York, 17 AD3d 566 [2d Dcpt ZOOS], Zv dcnicJ 5 NY3d 705 [hilure to rcpair water main does not establish that City crcated dcfcct]). Plaintiffs have thus failed to demonstratc that any triable issues exist as to whether City affirmatively created the sinkhole . . . In light olthis resillt, and as nolie of tlic records or witnesses that plaintiffs seek pertain to the issuc of prior written notice or the creation of the sinkhole, plaintiffs motion to strikc or coiiipel is dcnied. IJ, CON I ENTIONS Plaintifls argue that 1 overlooked testimony from a DEP employee that watcr leaking from hydrants causes sinkholes such as thc one at issue, and that I also ovcrlookcd the cxtciisive [* 4] discovery owcd by City which was rclcvant to tlicil- motion. Plaintiffs also move for leave to renew based on a newspapcr article, datcd Septcmbcr 12, 201 1, in wliich the author discusses D o l s allcged lhilurc to report sinkholes to the JIEP or to rcpair thcni, and assert that it creates a lriablc issue a s to whcther City failcd to inakc rcpairs to thc sinkhole at issuc. (Affmiiation of John M. Downing Jr., I-kq., dated I k c . 14, 201 1). City clcnies that 1 overlooked any cvidence, aind asserts that thc newspapcr articlc is inadmissible hcarsay. (Ai iinJlation 01 Stacy L. Cuhen, ACC, dated Jan. 10, 2012). In reply, plaintiffs contend that the discovcry sought by thcni would demonstrate that City ignorcd and neglectcd to repair Icaks from the hydrants wliich caused the sinkhole, and that tlic article is admissible as thcy are offering it to show that further discovcry is iieeded and not ibr its truth. (Reply Afl-Trmation,datcd Jan. 16, 20 12). 111. ANALYSlS A motion for lcavc to rearguc shall be bascd upon niatters of fact or law allegcdly overlooked or misapprehended hy the court in dcterminiiig the prior motion, but shall not include any iiiattcrs oflact not offered on thc prior motion. (CPLR 2221 [d][Z]). A motion for lcave lo renew shall bc based irpon new lhcts not ofrered on the prior motion that would change the prior dcterrnination or shall demonstrate that thcrc has been a change in the law that would change thc prior determination, and shall contain reasonable justilication for tlnc failure to present such h c t s on the prior motion. (CPLR 2221 [e][2], [3]). I hedetermination as to whethcr the hilurc to present hcts on a prior motion was sufikicntly justilied is discretionary. (Mqjia v Nrirzni, 307 AD2d 870 [ I I llcpt 2003 I). J Jcrc, the DEP witiicss testiinoiiy was addresscd in the prior order. There, I observed 3 [* 5] that thc witness had 110 p s o n a l hiowledge as to hliethcr watcr had becn leaking from thc hydrants or the caiisc of any allegcd cave-in or pothole. Indeed, plaintiffs rely 011tcslimoiiy which shows only that lcaking water could cause potholes. Thus, even if the tcstimoiiy had been overlooked, it woirld iiot change the prior deteiinination as it does not establish that, or raise a triable issuc as to whetlicr, a lealiing hydrant at the location of plaintiffs accidcnt causcd the sinkhole in which plaintiff fcII. Similarly, 1 found that none o l the discovery sought by plaintiffs was relevant to thc issue of City s prior written notice or creation ofthe sinkhole. Plaintifls do not address holdings that a failure to maintain or repair a dcfect is not an afirmative act sufficient to hold City liablc. (Sce eg Vega v C ily ofN~7wYwk, 88 A113d 497 11 llept 201 11 [failure to act or repair not a ¬ iinnative act for which City may be hcld liable]). Thus, it is irrclevant whether City hiled to repair the allcgcd hydranl leaks, and in any cvent, plaintiffs claim that leaks caused thc sinkhole is specdative, conclusory, and unsupportcd by any evidence, expcd or otherwise. This js also 1101 a matter where City has lhiled to provide discovcry, Rather, City provided plaintiff with the rcsults o l a two-year search of both IIOT and 13EP records, along with Iiandwritlen gang shccts relatcd to three potholc repairs, and produced a DO L employcc to testify as to the records, another DOT employee to testify as to a particular pothole which D0 1 had repaircd at the location, and ;I DEP employee to testify about his iiispcction of thc locatioi-rbcfore p Iai nt i fl s accident, Moreover, the ncwspaper article submitted by plaintiffs is illadmissible hcarsay, and in any event, thcy do iiot cxplain its relevance to whethcr City had prior writtcri notice or creatcd thc sinkhole. (,%e P&N I iff.nyProps,, Inr-. v Muron, 16 AD3d 305 [2d Dept 2005 1, Zv de17i~d 5 4 [* 6] NY3d 757 [court properly denied lcave 10 reiicw as newspaper aiiicle wits inadmissible and also conclusory and ii-relevant]). I V . CON CLU S ION Accordingly, it is hercby ORDEWD, that plaintifis' motion for lcave to rcnew and/or reargiic is denied U,NTER: -- DATED: April 9, 201 2 New York, Ncw York FILED 5 I

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