Alvarado v City of New York

[*1] Alvarado v City of New York 2013 NY Slip Op 52049(U) Decided on December 5, 2013 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2013
Supreme Court, Richmond County

Jeanette Alvarado, Plaintiff(s),

against

The City of New York, DEPENDABLE AUTO BODY, INC., GRACE QUATTROCCHI, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., RICHMOND CONSTRUCTION ASSOCIATES, INC., and LAND, AIR, WATER ENVIRONMENTAL SERVICES, INC., Defendant(s).



103432/11

Thomas P. Aliotta, J.

Upon the foregoing papers, the cross motion (No. 1341-003) for summary judgment of defendant THE CITY OF NEW YORK is granted. The cross motion of defendants GRACE QUATTROCHI and DEPENDABLE AUTO BODY, INC. (No. 2129-005), is denied.[FN1]

Plaintiff JEANETTE ALVARADO commenced this action to recover damages for injuries sustained when she tripped and fell on the sidewalk in front of premises known as defendant DEPENDABLE AUTO BODY, which was owned by JOHN QUATTROCCHI.[FN2] It is alleged that plaintiff's foot became wedged between a crack in the sidewalk and a water cap protruding from the sidewalk. As a result of said fall, plaintiff claims that she suffered, inter alia, a fracture of the right radius requiring a short arm cast for seven weeks, and a right knee abrasion. In addition, plaintiff claims that she continues to suffer severe pain, tenderness, weakness, loss of strength, and restriction of motion of her right wrist, and that she remains unable to bear or carry any weight in that hand. She also claims to suffer from severe anxiety, depression, social inhibition and other psychic trauma, all as a result of the subject fall.

On or about July 11, 2011, plaintiff commenced this tort action against DEPENDABLE AUTO BODY, INC. and its owner JOHN QUATTROCCHI, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., RICHMOND CONSTRUCTION ASSOCIATES, INC., and LAND, AIR, WATER ENVIRONMENTAL SERVICES, INC. Also asserted are claims against THE CITY OF NEW YORK (hereinafter THE CITY) for failing to properly maintain the subject sidewalk, and/or "causing and creating" the defect that caused plaintiff to fall.

In cross-moving for summary judgment dismissing the complaint and all cross-claims against it, THE CITY contends that defendant QUATTROCCHI was the uncontroverted owner of the subject property on the date of the subject accident, and is therefore liable for any injuries sustained due to the failure to maintain the sidewalk adjacent to the property in a reasonably safe condition. According to THE CITY, the subject property is not a 1, 2 or 3-family residential property, but is classified "G9" by THE CITY, i.e., a garage or gas station. Accordingly, [*2]Administrative Code §7-210 imposes liability on the adjoining property owner rather than THE CITY for any failure to properly maintain the sidewalk.

THE CITY further argues that it did not cause or create the defect which allegedly caused plaintiff to trip and fall, as a record search revealed that no maintenance or repair work was performed on the subject sidewalk by THE CITY for a period of two years prior to the date of plaintiff's accident. Accordingly, the injured plaintiff cannot show that any work done by THE CITY immediately resulted in a defective or dangerous condition. As a result, it is argued that THE CITY cannot be held liable under the cause and create exception to the requirement of the prior written notice rule (see Administrative Code §7-201(c)(2)).

In support, THE CITY submits the affidavit of Eric Dellecave, who is employed by THE CITY's Department of Environmental Protection (hereinafter DEP) as a District Supervisor for the Bureau of Water and Sewer Operations. He affirms that the DEP is solely responsible for the maintenance and repair of the public water and sewer systems located within the City of New York, and that, at THE CITY's request, he personally inspected the subject location on February 12, 2013. Based upon his experience with the DEP and with water-related equipment, the affiant states that the cover on the water valve located on the sidewalk is not owned, maintained, operated, inspected or repaired by THE CITY's DEP. Moreover, as explained by the witness, a curb valve and cap such as that located in the instant sidewalk operates to permit the owner of the adjacent premises to shutoff the water supply to those premises, and that the maintenance lies with the property owner.

Also submitted is the affidavit of Omar Codling, a record searcher employed by THE CITY's Department of Transportation (DOT) Litigation Services and Records Management Unit, which indicates that a search was performed by him in regards to the subject location for the two-year period prior to the date of the accident, and that no records were found for any work performed by THE CITY in relation thereto, which would have immediately caused or created the alleged defective condition.

In a cross motion for summary judgment and in opposition to THE CITY's motion, DEPENDABLE and QUATTROCCHI, the only other remaining defendants, contend that THE CITY is the owner of the water cap and, as such, is responsible for its maintenance and that of the 12-inch perimeter surrounding it. In support, these defendants submit the affidavit of John Ferrantello, a licensed land surveyor, who performed a "land survey" of the subject location and concluded that the "cap" allegedly involved in plaintiff's fall was installed by THE CITY's DEP, and therefore the duty of maintenance falls on THE CITY. This affiant further states that the Rules of the City of New York (34 RCNY §2-07) require the owners of covers or gratings in a street or sidewalk to monitor, repair, and replace the cover or grating and its 12-inch perimeter, and to make certain that the subject hardware is flush with the surrounding surface. Accordingly, THE CITY would be liable for any injuries resulting from defects arising out of the failure to properly maintain the water valve cover and/or its immediate surrounding area. In any event, DEPENDABLE and QUATTROCCHI further argue that the defect which allegedly caused plaintiff to fall was trivial in nature, and not actionable as a matter of law.

In opposition to DEPENDABLE and QUATTROCCHI's cross motion, THE CITY argues that the affidavit of land surveyor John Ferrantello is insufficient to establish a prima facie right to summary judgment on the part of these defendants. According to THE CITY, Ferrantello's [*3]opinion is conclusory and speculative since he fails to indicate how he reaches his determination. In particular, there is no explanation as to how the dimensions of the property boundaries which he surveyed allow him to identify the DEP, instead of some independent contractor, as the installer of the subject curb valve. In addition, it is claimed that his explanation for concluding that THE CITY is the entity that "would have" installed the curb valve is wholly conjectural in nature, and based on an apparent assumption about the role of the DEP. In point of fact, the valve and cover are unmarked and made from a standard foundry casting.

Also noted by THE CITY is the issuance of a building permit to DEPENDABLE and QUATTROCCI authorizing the installation of a sprinkler system to the business, and that the Rules of the City of New York require the installation of sidewalk curb valve for any water service pipe that provides fire protection, i.e., for a sprinkler system (see 15 RCNY §20-3 Governing and Restricting the Use and Supply of Water). THE CITY argues that this proves that the valve was installed by QUATTROCCHI for its own benefit as part of the sprinkler system he added to his building in 1991, making him, the business owner, rather than THE CITY responsible for the maintenance of the water valve and its cover.

Correspondingly, THE CITY argues that its cross movants' reliance on the 12-inch rule is misplaced since the Ferrantello affidavit placing ownership of the curb valve and cover on THE CITY is based on a mere assumption that the valve was installed by the DEP. Alternatively, even assuming that the DEP did install the curb valve and cover at issue, THE CITY argues that 34 RCNY §2-07(b) clearly imposes the duty to maintain and repair upon the owner of the cover or grating, which in this case would be DEPENDABLE and QUATTROCCHI, and not the installer. Therefore, THE CITY would not be responsible for its condition.

Finally, it is THE CITY's position that cross-moving codefendants have failed to show that any work done by THE CITY immediately resulted in the existence of a dangerous condition which caused plaintiff to trip and fall, thereby exempting her claim from the prior written notice requirement of New York City Administrative Code §7-201. Not only do its records indicate that no work was performed at the subject location by THE CITY in the two years prior to the date of the plaintiff's fall, but the EBT testimony of QUATTROCCHI's son, Paul, indicates that the curb valve and cover have been extant at the present location for the last ten years. Thus, it is clear that the valve was not recently installed by THE CITY, and that any affirmative act of negligence which may have occurred during its installation did not immediately result in its current hazardous condition. Therefore, the THE CITY argues that it is entitled to summary judgment dismissing the complaint and all cross claims against it.

In her opposition papers, plaintiff contends that the existence of triable issues of fact preclude an award of summary judgment to either THE CITY or DEPENDABLE and QUATTROCCHI. More specifically, plaintiff contends that the cross-moving defendants have each failed to make out a prima facie case, since they have not adduced any proof with regard to exactly where plaintiff fell, and whether or not it was within the 12- inch perimeter surrounding the water cap.

In addition, plaintiff argues that there is no admissible evidence about the size of the defect sufficient to establish that it was trivial. Plaintiff further argues that the triviality of the defect is typically an issue for a jury to decide. Finally, plaintiff adopts the arguments made by DEPENDABLE and QUATTROCCHI with respect to their opposition to THE CITY's motion. [*4]

The cross motions are decided as follows.

It is well established that the proponent of a summary judgment motion must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 320). Once that initial burden has been satisfied, the burden shifts to the party opposing the motion to produce sufficient evidence to raise a triable issue of fact (id.). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 557, 562). Because summary judgment is the procedural equivalent of a trial, the presence of any significant doubt as to whether there is a material issue of fact, or where an issue of fact is "arguable", the motion must be denied (see Phillips v. Kantor & Co., 31 NY2d 307, 311). Here, it is the opinion of this Court that THE CITY has established its prima facie entitlement to judgment as a matter of law. In opposition, both plaintiff and cross-moving defendants DEPENDABLE and QUATTROCCHI have failed to raise triable issues of fact.

With regard to DEPENDABLE and QUATTROCCHI's cross motion, it is the opinion of this Court that they have failed to make a prima facie showing of their entitlement to judgment as adjacent property owners. In particular, proof submitted by DEPENDABLE and QUATTROCCHI regarding the issue of the responsibility for maintenance of the sidewalk, which includes the water valve, its cover and the surrounding perimeter, is inconclusive. Contrary to the contentions of these cross movants, the expert affidavit submitted by them does not conclusively establish that the water valve and cap are owned by THE CITY, but rather that THE CITY installed the water valve.

With the enactment on September 14, 2003 of Section 7-210 of the Administrative Code of the City of New York, the liability for injuries resulting from negligent sidewalk maintenance has been shifted in most cases onto the abutting property owners, relieving THE CITY of such responsibility except in cases involving one-, two- or three-family, owner-occupied residential properties used exclusively for residential purposes. Accordingly, the duty to safely maintain the sidewalk where plaintiff claims to have fallen falls on defendants DEPENDABLE and QUATTROCCHI as the abutting property owners.

These defendants argue, however, that in this case, section 7-210 of the Administrative Code is superceded by section 2-07 of the Rules of the City of New York (34 RCNY §2-07). It is argued by DEPENDABLE and QUATTROCCHI that 34 RCNY §2-07 places responsibility for the maintenance of such water valve covers and the area extending 12 inches outward therefrom, i.e., the general area where plaintiff was injured, upon the owner thereof, which it claims is THE CITY. Nevertheless, these defendants have failed to conclusively demonstrate that THE CITY is, in fact, the owner of the water valve cover. The Ferrantello affidavit submitted by cross-movants merely states that THE CITY installed the water valve. In addition, while there is proof, e.g., a building permit was issued as far back as 1991, indicating that a valve was installed at this location in connection with the installation of a sprinkler system at the premises, this again, is not sufficient to establish ownership on behalf of THE CITY. In fact, this proof tends to indicate that the valve was actually installed for the benefit of the adjacent [*5]business, and thus, its responsibility.

Moreover, even if the Rules of the City of New York did place the responsibility for maintenance of the water valve and cap and its 12-inch perimeter on THE CITY in this case, copies of photographs of the defective sidewalk indicate that the defect extends far beyond the 12-inch perimeter surrounding the water valve. Accordingly, the enactment of 34 RCNY §2-07 cannot be interpreted to limit the responsibility of the adjacent property owner to only a portion of the sidewalk. DEPENDABLE and QUATTROCCHI have not established that their maintenance obligations cease to exist for the entire sidewalk.

In addition, it is well settled that prior written notice is a condition precedent which a party is required to plead and prove in order to maintain an action in tort against THE CITY (see Katz v. The City of New York, 87 NY2d 241, 243). Assuming, arugendo that ownership had been conclusively established and that THE CITY did have the responsibility for its maintenance, neither plaintiff nor DEPENDABLE and QUATTROCCHI have submitted any proof establishing that THE CITY received prior written notice as required under §7-201 of the Administrative Code, nor has it been demonstrated that the prior written notice requirement to THE CITY is excused when the obligation for maintenance is established under 34 RCNY §2-07.

Here, THE CITY has sufficiently demonstrated the absence of any prior written notice of the alleged defect in the sidewalk which caused plaintiff's injuries. THE CITY has also established that it did not cause or create the condition through any affirmative act of negligence or that its alleged use conferred a special benefit upon it (see Amabile v. City of Buffalo, 93 NY2d 471). Through the affidavit of Omar Codling (employee of THE CITY's Department of Transportation and member of the Office of Litigation Services and Records Management) the results of various CITY record searches failed to reveal that THE CITY performed any work which may have immediately resulted in a dangerous condition which caused plaintiff to fall (see Oboler v. City of New York, 8 NY3d 888, 889; Bielicki v. City of New York, 14 AD3d 301). Even the EBT testimony of the owner's son, Paul Quattrocchi, who testified that in the ten years that he has been working at DEPENDABLE, he has never seen anyone access the subject water valve or perform any work at this location, tends to support the contention that no recent work was performed at that location. While there is proof indicating that work was performed back in 1991 in connection with the installation of a sprinkler system, this proof tends to suggest that the curb valve was necessary for the installation of DEPENDABLE's sprinkler system, and thus, installed for the adjacent property owner's benefit, and not for the benefit of or special use by THE CITY.

Even though it is argued that access to DEPENDABLE's sprinkler system was located inside the garage, and that in 2012 a "siamese connection" was added to an exterior wall in case the fire department needed to access the building's water supply, this still does not support the claim that the adjacent property owner is relieved of its obligation to maintain the subject sidewalk.

Accordingly, it is

ORDERED that the cross motion for summary judgment by THE CITY OF NEW YORK is granted, and the complaint and all cross claims are hereby severed and dismissed; and it is further [*6]

ORDERED that the cross motion for summary judgment of defendants DEPENDABLE AUTO BODY, INC., and GRACE QUATTROCCHI, is denied; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

/s/

HON. THOMAS P. ALIOTTA

J.S.C.

Dated: December 5, 2013 Footnotes

Footnote 1: The motions for summary judgment of defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., RICHMOND CONSTRUCTION ASSOCIATES, INC., and LAND, AIR, WATER ENVIRONMENTAL SERVICES, INC. were granted upon oral argument, and the complaint and all cross claims against them were dismissed.

Footnote 2:JOHN QUATTROCCHI is now deceased and has been substituted in this action by his wife, GRACE QUATTROCCHI, who was issued Letters Testamentary in November 2012.