Urbistondo v City of New York

Urbistondo v City of New York 2011 NY Slip Op 08476 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Tom, J.P., Saxe, Sweeny, Richter, Manzanet-Daniels, JJ.
6125 18541/07 303670/07 84109/09

[*1]Felix Urbistondo, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent.



Felix Urbistondo, Plaintiff-Appellant,

v

Jose A. Pujols, et al., Defendants, Welsbach Electric Corp., Defendant-Respondent. [And a Third-Party Action]




Dinkes & Schwitzer, New York (Naomi J. Skura of counsel),
for appellant.
London Fisher, LLP, New York (James Walsh of counsel), for
respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 29, 2010, which, insofar as appealed from as limited by the briefs, in these actions for personal injuries, granted the motion of defendants City of New York and Welsbach Electrical Corp. for summary judgment dismissing the complaints as against them, unanimously reversed, on the law, without costs, and the motion denied.

Dismissal of the complaint as against the City and Welsbach was not warranted in this action where plaintiff pedestrian alleges that he was injured when, while crossing an intersection where neither the pedestrian signal nor traffic light were functioning, he was struck by a motor vehicle driven by defendant Pujols. A City employee testified that on the morning of the accident, a complaint was lodged indicating that the traffic signals at the subject intersection were not working. A call type of "02" had been assigned to the complaint, meaning that Welsbach, the company charged with maintaining the traffic lights, had two hours to respond to the outage. However, the record shows that plaintiff was injured more than two hours after the complaint had been lodged.

"A municipality has a duty to maintain its streets in a reasonably safe condition" (Kohn v City of New York, 69 AD3d 463, 463 [2010]). Here, the record shows that the pedestrian signal [*2]and traffic light outages at issue were allowed to persist on a heavily traveled roadway, with nine traffic lanes, for more than two hours and resulted in a dangerous condition on that roadway (see Prager v Motor Veh. Acc. Indem. Corp., 74 AD2d 844 [1980], affd 53 NY2d 854 [1981]. Accordingly, triable issues exist as to whether the failure to timely respond to and remedy the signal
outages was a proximate cause of plaintiff's accident (see id.).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK