Fisher v City of New York

[*1] Fisher v City of New York 2007 NY Slip Op 52513(U) [18 Misc 3d 1116(A)] Decided on December 11, 2007 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2007
Supreme Court, Kings County

Diane Fisher, Plaintiff,

against

The City of New York et al, Defendants.



14297/04

Sylvia O. Hinds-Radix, J.

Upon the foregoing papers, defendant Keyspan Corporation, f/k/a Brooklyn Union Gas (Keyspan), moves for an order, granting leave to renew and/or reargue this court's decision and order dated July 11, 2007 denying Keyspan's motion: (1) to vacate the note of issue and strike the action from the trial calendar; and (2) to extend its time to move for summary judgment. By separate motion papers, Keyspan moves for an order granting summary judgment dismissing the complaint and cross-claims as asserted against it.

By separate motion papers, Keyspan also moves, by order to show cause, for an order compelling the City of New York to produce a witness from the Department of Environmental Protection, Bureau of Water Supply, for an examination before trial.[FN1]

On April 28, 2003, plaintiff Diane Fisher (plaintiff) allegedly tripped and fell while walking along the sidewalk located at Shore Parkway between West 6th Street and West Street in Brooklyn, New York. At her deposition, plaintiff testified that her "right foot got caught in what appeared to be cracks." In the notice of claim, plaintiff claims that her fall occurred "adjacent to a Power Plant located on the corner of Shore Parkway and West 6th Street and approximately, 100 feet east of the Southeast corner of West 6th Street." Thereafter, on or about May 4, 2004, plaintiff commenced the instant action against defendants the City of New York (the City) and Consolidated Edison Company of New York (Con Ed) to recover damages for injuries allegedly sustained as a result of her fall. [*2]

The parties then entered into pre-trial discovery. On July 18, 2005, an examination before trial of plaintiff was held. On October 12, 2005, examinations before trial of the City and Con Ed were held. On or about December 30, 2005, plaintiff filed a supplemental summons and amended verified complaint with this court adding Keyspan as a named defendant.On or about February 8, 2006, Keyspan interposed an answer and served various discovery demands, including notices to take deposition upon oral examination, upon all parties.

Thereafter, a compliance conference was held on February 10, 2006. Keyspan, however, was not present and claims that plaintiff failed to notify it of said conference. Subsequently, the parties entered into a stipulation to extend the time to file the note of issue from December 22, 2006 to February 15, 2007. The stipulation was so-ordered and signed by the court on December 20, 2006.

On January 18, 2007, examinations before trial of plaintiff and Walter Stone, an employee of Keyspan were held. A review of the court's records indicates that plaintiff filed the note of issue and certificate of readiness with the Kings County Clerk's Office on February 7, 2007.

By motion filed February 15, 2007, Keyspan timely moved to vacate the note of issue (22 NYCRR §202.21[e]) and extend its time to move for summary judgment. By short form order dated July 11, 2007, this court denied Keyspan's motion to vacate the note of issue; denied its request to extend its time to move for summary judgment; and directed plaintiff to provide Keyspan with copies of medical records and HIPPA authorizations for all of plaintiff's treating doctors for her pre-existing tennis elbow condition. Keyspan now moves to renew and/or reargue the July 11, 2007 short form order of this court.

By separate motion papers, Keyspan moves for an order granting summary judgment dismissing the complaint and all cross-claims as asserted against it.

Keyspan also moves, by order to show cause, for an order compelling the City of New York to produce a witness from the Department of Environmental Protection, Bureau of Water Supply, for an examination before trial.

Motion to Renew and Reargue

In support of its motion to renew and/or reargue, Keyspan contends that plaintiff filed the note of issue and certified that discovery was complete even though there was outstanding discovery. Specifically, Keyspan claims that its examinations before trial of the City and Con Ed were still outstanding at the time that plaintiff filed the note of issue. Keyspan maintains that plaintiff's service of an "Exchange of Photographs" and a response to its demand for expert information on June 25, 2007, subsequent to the filing of the note of issue, is a further indication that discovery was not completed. In addition, Keyspan asserts that no discovery has been provided in relation to plaintiff's supplemental bill of particulars, dated August 3, 2007, alleging statutes and codes violated by the defendants.

In further support of the motion, Keyspan argues that additional discovery may be required after the completion of its examinations before trial of the City and Con Ed, thus [*3]requiring the striking of the note of issue. In addition, Keyspan submits records from the City of New York, Department of Water Supply, Gas & Electricity, with respect to 2701 West 6th Street, in Brooklyn; namely, a July 20, 1978 house services order, an August 1, 1978 report, an August 20, 1980 report, and another undated report. One of the reports and one of the house services orders make reference to the Power Plant located at that address.

As a result, Keyspan insists that it should be granted an extension of time to move for summary judgment in light of "the recent discovery of records establishing that co-defendant City performed work at the accident site."

In opposition, plaintiff initially contends that the instant motion is procedurally defective. Plaintiff maintains that the instant motion was not made within 30 days after service of a copy of the July 11, 2007 short form order of this court and, as such, is untimely. Plaintiff further argues that the branch of Keyspan's motion to reargue should be denied because Keyspan failed to set forth any facts overlooked by the court in deciding the prior motion or demonstrate that the court misapplied any controlling principles of law. In addition, plaintiff argues that the branch of Keyspan's motion to renew should be denied because Keyspan fails to set forth any new or additional facts which could not have been put forth before the court when the original motion was made and which would have required a different ruling.

In further opposition to the instant motion, plaintiff maintains that Keyspan was provided with "a copy of all Notices of Claim including photographs, pleadings, bills of particulars, discovery demands/responses, G.M.L. § 50-H transcripts and E.B.T. transcripts, from the entire discovery that was conducted in this action prior to their joinder as a defendant." Plaintiff claims that Keyspan failed to indicate what discovery was outstanding in the stipulation signed by the parties to extend the time to file the note of issue. As such, plaintiff contends that Keyspan "had a full opportunity to conduct appropriate discovery."

In addition, plaintiff asserts that Keyspan has failed to demonstrate that the deposition of the City is material and necessary. With respect to Con Ed, plaintiff's counsel states in his affirmation submitted in opposition to the instant motion that a settlement was reached with Con Ed in August, 2007. Plaintiff further claims that the "Exchange of Photographs" referred to by Keyspan's counsel, in his affirmation submitted in support of the motion, "was merely a courtesy copy of photographs that had been attached to the Notice of Claim, exchanged with sides during discovery, marked as exhibits during depositions of all sides, and provided to Keyspan on numerous prior occasions." Plaintiff insists that Walter Stone, who testified on behalf of Keyspan, testified at his deposition that the manhole cover depicted in the photograph of the location where she fell is in fact owned by Keyspan. Finally, plaintiff asserts that the 1978 Department of Water Supply records submitted by Keyspan are unsworn and as such, are inadmissible for the purposes of the motion.

In opposition, the City likewise contends that Keyspan's motion is procedurally defective. In response to Keyspan's assertions that the 1978 DEP records indicate that "there was a DEP manhole cover on the subject block", the City counters that plaintiff testified that [*4]she fell in the area "immediately adjacent to the square gas valve cap on the subject sidewalk, which photographs indicate was a significant distance from the alleged DEP manhole cover." Finally, the City asserts that the additional discovery sought by plaintiff in the form of an examination before trial is "palpably improper and immaterial, amounting to nothing more than a fishing expedition."

In reply, Keyspan argues that it still has not received a copy of the compliance conference order of this court. Keyspan maintains that when plaintiff filed the note of issue, discovery was not yet completed as to it, and that it is entitled to the depositions of the City and Con Ed. Keyspan argues that it has been unduly prejudiced because of its absence at the prior depositions of the parties. Keyspan rejects plaintiff's contention that Mr. Stone testified that the metal cap located on the subject sidewalk belonged to Keyspan. Instead, Keyspan counters that Mr. Stone testified that a two-year search of the records for the subject accident location indicated no records, permits or work orders.

Additionally, counsel for Keyspan states in his affirmation, that plaintiff "never identified the photographs plaintiff's counsel" refers to in his affidavit. Keyspan maintains that only photographs identified as exhibits A, B and C were exchanged by plaintiff through all the depositions. Keyspan claims that plaintiff's description of the accident location in the notice of claim and amended summons and complaint indicate that the "hydrant referred to which is evident from the photograph is approximately 40 feet from where plaintiff alleges she fell. Also, the manhole Counsel refers to in his opposition affirmation is not 8 feet from the curb as indicated in the record received from the Department of Water. However, the cap' in the cracked, uneven pavement where plaintiff alleges she trip [sic] and fell appears from the photographs Exhibit C to be approximately 8 feet from the curb." Finally, Keyspan argues that Sherry Johnson, the City's witness, was not questioned at her deposition about the cap which plaintiff claims was owned by Keyspan.

As an initial matter, the court notes plaintiff's assertion that Keyspan's motion to reargue is untimely. A review of the court's records reveals that the July 11, 2007 short form order of this court was filed and entered in the record room on July 18, 2007. The order with notice of entry was served upon Keyspan on August 1, 2007.[FN2] Keyspan served its motion for renewal and reargument on September 5, 2007, and filed same with the court on or about September 18, 2007. However, Keyspan filed a notice of appeal with the Appellate Division, Second Judicial Department, and subsequently filed the same with the Clerk's Office of this court on August 17, 2007. Said appeal was timely made. As such, this court has jurisdiction to consider the instant motion to reargue (Itzkowitz v King Kullen Grocery Co, Inc., 22 AD3d 636 [2000]).

Turning to the merits of the motion, the court will treat Keyspan's motion as one for reargument as opposed to one for renewal and reargument. Despite the denomination of the [*5]instant motion for renewal and reargument, Keyspan has failed to demonstrate that the instant motion is "based upon newly discovered material facts or evidence which existed at the time the prior motion was made, but were unknown to" it "[along with a] valid excuse . . . as to why the new information was not previously submitted'" (Carota v Wu, 284 AD2d 614, 617 [2001], quoting Matter of Jones v Marcy, 135 AD2d 887, 888 [1987] [citation omitted]; see also Renna v Gullo, 19 AD3d 472, 473 [2005], citing CPLR 2221[e]; Yarde v New York City Tr. Auth., 4 AD3d 352 [2004]; Riccio v DePeralta, 274 AD2d 384 [2000], appeal dismissed 95 NY2d 957 [2000]).

"It is well settled that [a] motion for reargument is addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision'" (Hoey-Kennedy v Kennedy, 294 AD2d 573, 573 [2002], quoting Long v Long, 251 AD2d 631 [1998]). A motion for reargument is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented (Gellert & Rodner v Gem Community Mgmt., 20 AD3d 388 [2005], citing McGill v Goldman, 261 AD2d 593, 594 [1999]; Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [1993]; Foley v Roche, 68 AD2d 558, 567-568 [1979]).

22 NYCRR §202.21 (e) provides, in relevant part, that "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect." (Emphasis added.)

When plaintiff filed the note of issue and certificate of readiness, it was stated, among other things, that: all pleadings were served; bills of particulars served; physical examination completed; medical reports exchanged; discovery proceedings now known to be necessary completed; there are no outstanding requests for discovery; there has been a reasonable opportunity to complete the foregoing proceedings; there has been compliance with any order issued pursuant to the precalendar rules; and the case is ready for trial.

In support of the underlying motion, Keyspan argued, among other things, that it had not been provided with an opportunity to conduct a deposition of the parties, with all the discovery between the parties "such as co-defendant's independent medical examination reports", and with an authorization of plaintiff's prior unrelated action against the City. In the July 11, 2007 short form order of this court, the court directed plaintiff to provide Keyspan with authorizations for treatment of her pre-existing tennis elbow condition, and ordered that the case remain on the trial calendar while denying Keyspan an extension of time to move for summary judgment. In effect, the court did not find that it "appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect" (22 NYCRR § 202.21 [e]). As such, the court denied Keyspan's motion. [*6]

In support of the instant motion to renew and reargue, Keyspan asserts that at the time of filing of the note of issue, it had not yet completed the examinations before trial of the City and Con Ed, and that plaintiff had failed to provide it with a copy of the order generated as a result of the February 10, 2006 compliance conference. Keyspan deposed plaintiff on January 18, 2007. Plaintiff asserts that Keyspan has been provided with all discovery generated prior to Keyspan's joinder as a defendant. The court notes that Keyspan does not assert that it failed to receive copies of the transcripts of the previously held examinations before trial of the City and Con Ed.

Moreover, Keyspan has failed to demonstrate that the court overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at its earlier decision. As such, Keyspan has failed to satisfy the requirements of CPLR 2221. In any event, even if the court were to grant Keyspan's motion for reargument, there are issues of fact precluding an award of summary judgment.

Motion for Summary Judgment

In support of the motion for summary judgment, Keyspan contends that it did not

create or contribute to the "cracks or ditch" which plaintiff stated caused her accident. Keyspan insists that there are no questions of fact as to how plaintiff's accident occurred. Keyspan relies upon Mr. Stone's deposition testimony that, based upon record searches conducted, Brooklyn Union did not perform any work at the subject accident location between April, 2001 and April, 2003.

In opposition to the motion for summary judgment, plaintiff initially maintains that Keyspan's motion for summary judgment is untimely. Plaintiff further argues that Keyspan has failed to satisfy its initial burden of proof entitling it to judgment as a matter of law and that issues of fact exist precluding an award of summary judgment. Plaintiff asserts that while Keyspan moves for summary judgment based on the fact that record searches indicate that it performed no work at the accident location, Keyspan fails to "contest ... that they caused and created the defective conditions which caused the accident in question, nor that they had actual and/or constructive notice of said conditions." Plaintiff further argues that " [Keyspan] does not contest the plaintiff's allegation that [Keyspan] made a special use' of the sidewalk in question at the time of plaintiff's accident."

Plaintiff asserts that the outstanding authorizations, with respect to plaintiff's prior tennis elbow injury, directed to be provided by plaintiff to Keyspan in the July 11, 2007 order, related to damages only, and not to any causation issues. As such, plaintiff maintains that the lack of said information did not preclude Keyspan from moving for summary judgment in a timely manner at an earlier date. Plaintiff insists that said information was not material and necessary to the making of Keyspan's motion for summary judgment. Plaintiff claims that she was tripped and fell on the subject sidewalk due to "a defective and dangerous gas cap cover owned, installed, operated, maintained and controlled by Keyspan." Plaintiff also points to her deposition testimony, that she tripped and fell into what she thought was a ditch when her right foot got caught in what appeared to be cracks on the [*7]sidewalk. Plaintiff further testified in her deposition that she noticed "a ditch of cracked pavement and some sort of metallic cap." Plaintiff asserts that Mr. Stone's deposition testimony establishes Keyspan's liability for the subject accident. Plaintiff further asserts that the gas cap identified in the photograph, marked as plaintiff's Exhibit 3 at a prior deposition, of the accident location, was testified to by Mr. Stone, as being owned, operated and controlled by Keyspan.

In response to this assertion, Keyspan counters that Mr. Stone did not testify to the same. Instead, Keyspan maintains that Mr. Stone "did not identify the cap' in the photographs marked as Exhibit A, B and C" and identified by plaintiff at her deposition as being in the location of where she fell.

A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212[b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing to Zuckerman, 49 NY2d at 562). In determining the motion, a court must be mindful that "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978], quoting Moskowitz v Garlock, 23 AD2d 943, 944 [1965]). Moreover, the evidence must be considered in the light most favorable to the party opposing the motion (Henderson v City of New York, 178 AD2d 129, 130 [1991]). Finally, a party seeking summary judgment may not merely point to gaps in the opponent's proof but rather must adduce affirmative evidence of its entitlement to that relief (Torres v Industrial Container, 305 AD2d 136 [2003]).

CPLR 3212 (a) provides that a motion for summary judgment shall be made no later than 120 days after the filing of the note of issue unless the court sets an earlier date. Rule 13 of the Uniform Civil Trial Rules of Supreme Court, Kings County expressly provides that a motion for summary judgment shall be made no later than 60 days after the note of issue is filed. Under 3212 (a), a summary judgment motion may not be brought beyond the statutory deadline "except with leave of court on good cause shown." In Brill v City of New York, (2 NY3d 648, 652 [2004]), the Court of Appeals held that " good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion - - a satisfactory explanation for the untimeliness - - rather than simply permitting meritorious, nonprejudicial filings, however tardy. [Accordingly,] [n]o excuse at all, or a perfunctory excuse, cannot be good cause.' " The Brill standard has routinely been applied to cases where the summary [*8]judgment motion in question was filed 60 days after the filing of the note of issue in violation of Rule 13 of Kings County's Uniform Rules (see Bevilacqua f City of New York 21 AD3d 340, 340 [2005]; First Union Auto Finance, Inc. V Donat, 16 AD3d 372, 372 [2005]). "In the absence of a good cause' showing, a court has no discretion to entertain even a meritorious, nonprejudicial summary judgment motion" (Hesse v Rockland County Legislature, 18 AD3d 614, 614 [2005]).

As an initial matter, the court finds that Keyspan's motion is untimely. Furthermore, Keyspan has failed to demonstrate good cause shown for the late motion. A review of plaintiff's deposition testimony, indicates her identifying exhibits A and B as a circular manhole and a round cap on the sidewalk near to where she fell. Plaintiff further testified that she noticed a round cap as well as a square cap to the right of where she fell, identified as plaintiff's exhibit C. The court also notes that Mr. Stone testified that no search was conducted for the "One Call Request" with respect to a square cap on the sidewalk that was identified by plaintiff as exhibit 3 at a prior deposition. As such, the court finds that Keyspan has failed to satisfy its initial burden of proof entitling it to judgment as a matter of law.

Motion to Compel Examination Before Trial

In support of the motion to compel, Keyspan argues that it is entitled to a deposition of all other parties to the action and that the City's failure to produce a witness for an examination before trial is unfairly prejudicial to it. Keyspan asserts that the discovery of the records from the Department of Water Supply, Gas and Electricity, establishes that the City owned and operated the cap at the subject sidewalk where plaintiff alleges that she fell. Keyspan insists that the deposition of said witness is necessary to the determination of its summary judgment motion.

In light of the foregoing, Keyspan's motion to compel is denied as moot.

Conclusion

Accordingly, the court denies: (1) Keyspan's motion to renew and reargue this court's July 11, 2007 short form order; (2) Keyspan's motion for summary judgment; and (3) Keyspan's motion to compel an examination before trial of the City.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:In its motion papers, Keyspan sought production of the City's witness on August 7, 2007.

Footnote 2:In support of its motion papers, Keyspan annexes a copy of the envelope with the postmark date of the service of the July 11, 2007 short form order by plaintiff's counsel.