Gray v City of New York

[*1] Gray v City of New York 2008 NY Slip Op 51608(U) [20 Misc 3d 1125(A)] Decided on July 3, 2008 Supreme Court, New York County Mills, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2008
Supreme Court, New York County

William W. Gray, Plaintiff,

against

The City of New York, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and THE NEW YORK PUBLIC LIBRARY, Defendants.



104409/07

Donna M. Mills, J.

This is an action to recover monetary damages for personal injuries sustained by plaintiff William W. Gray, as a result of a trip and fall on sidewalk grating near the northwest corner of West 40th Street and Fifth Avenue in Manhattan, adjacent to the New York Public Library.

The New York City Transit Authority (the NYCTA) and the Metropolitan Transit Authority (the MTA), move pursuant to CPLR 3211, or in the alternative, pursuant to CPLR 3212, dismissing plaintiff's complaint and all cross claims made against them. The NYCTA and the MTA contend that plaintiff and the co-defendants have failed to state a cause of action as against them and that there are no triable issues of material fact in dispute as they do not own, maintain, operate or control the sidewalk or the grating where plaintiff fell.

Defendant, the New York Public Library (the Library), cross-moves pursuant to CPLR 3212 for summary judgment, arguing that it is neither the owner of the subject sidewalk, nor is responsible for its maintenance.

Con Edison Company of New York, Inc. (Con Edison), contends that the Library's motion for summary judgment must be denied. Con Edison argues that a question of fact exists whether it was responsible for maintaining the sidewalk as the Library has admitted in a previous case that it entered into a contract with a construction company for its rehabilitation and replacement.

Plaintiff cross-moves, pursuant to CPLR 3025 (b), for leave to amend the complaint to add as defendants York Hunter of New York and A. Ottavino Corp., two contractors that previously performed work on behalf of the Library at the location of the accident. Plaintiff also argues that the MTA and the NYCTA's motions to dismiss and for summary judgment are [*2]premature, because depositions have not taken place.[FN1]

FACTUAL ALLEGATIONSThis action involves a trip and fall which took place on September 14, 2006. Gray was walking on the sidewalk on the north side of West 40th Street near the intersection of Fifth Avenue in Manhattan when he allegedly tripped on a portion of the sidewalk which rests against metal grating. Specifically, the location of Gray's trip and fall was approximately 39 feet west of the northwest corner of West 40th Street and Fifth Avenue. As a result of the trip and fall, Gray sustained injuries to his left hand, his left forth finger, and to other parts of his body.

Plaintiff filed a summons and complaint on March 30, 2007, naming the City of New York (the City), the NYCTA, the MTA, Con Edison, and the Library as defendants. The NYCTA and the MTA served an answer on October 15, 2007 asserting cross claims against the City, Con Edison and the Library. The City served an answer on May 9, 2007, asserting cross claims against the NYCTA, the MTA, Con Edison and the Library. On May 11, 2007, the Library served an answer asserting cross claims against the NYCTA, the MTA, the City and Con Edison.

DISCUSSION

The NYCTA and the MTA (hereinafter collectively known as "the Authorities"), move to dismiss Gray's complaint and all cross claims made against them, contending that Gray and the co-defendants have failed to state a cause of action against the Authorities and that there exists no triable issues of material fact.

The Authorities submit an affidavit dated October 26, 2007, from Carmelite Cadet (Cadet), a civil engineer who is employed by the NYCTA. Cadet states that she reviewed Gray's notice of claim, the bill of particulars, photographs of the grating in question, and conducted a search for blueprints of the sidewalk grating. Cadet maintains that she found no files or records relating to the subject area and further states that the NYCTA does not own, maintain, operate or control the sidewalk or the grating where plaintiff fell. Cadet's affidavit also states that the grating where plaintiff fell has a diamond pattern and hinges, which are utilized by Con Edison and not utilized by the NYCTA. Cadet concludes that "[t]ransit gratings are curbside and are used to provide ventilation to train passengers directly below. This grating does not serve the New York City Transit Authority and is not located at or on the New York Transit Authority system." (Cadet Aff., ¶ 9).

The Authorities also argue that, according to section 383 of the New York City Charter, public streets in New York City are the property of the City and the City has the duty to maintain and repair any defects or dangerous conditions. They contend that, because the sidewalk in question is a public thoroughfare and the grating is the property of another party, the Authorities have no control or authority over said area. In addition, the Authorities contend that there is no evidence that they received prior notice of any perceived or alleged condition, nor has there been any showing that they created or caused the condition stated in plaintiff's complaint.

The City contends that pursuant to section 7-210 of the Administrative Code of the City of New York, which became effective September 14, 2003, liability for injuries arising from a defective sidewalk, has been shifted from the City to the owner of the real property which abuts [*3]the defective sidewalk.[FN2] The City states that unless an exception is found to exist, liability for defective sidewalks attaches to the landowner and not to the City.[FN3]

Plaintiff contends that the Authorities' motion should be denied as the affidavit of Cadet is self-serving and as the depositions of the parties have not yet been conducted. Plaintiff argues that although Cadet avers that the grating does not belong to the NYCTA and is of the type utilized by Con Edison, Con Edison has not affirmatively stated that the grating is in fact their own.

Here, by submitting the affidavit of Cadet, the Authorities have demonstrated that the grating did not belong to the NYCTA or the MTA and was not located at or above a transit system. Therefore, the burden shifts to plaintiff to produce evidentiary facts to raise a genuine issue of fact. See Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006). Although plaintiff contends that more discovery is necessary to prove who owns the grating, a party opposing summary judgment on the basis that further discovery is necessary must demonstrate how further discovery might reveal material facts in the movant's exclusive knowledge. See Cooper v 6 West 20th St. Tenants Corp., 258 AD2d 362 (1st Dept 1999);

First City Natl. Bank & Trust Co. v Heaton, 165 AD2d 710 (1st Dept 1990).

Neither plaintiff nor the co-defendants explain Cadet's findings or offer any testimony which refutes the Authorities' contention that the grating does not serve the NYCTA or is not located at or on a transit authority system. As plaintiff and the co-defendants fail to raise an issue of fact as to whether the grating belonged to the Authorities, the Authorities motion for summary judgment must be granted and the cross claims must be dismissed as against them.

The Library cross-moves pursuant to CPLR 3212, for summary judgment dismissing the complaint and the cross claims against it. The Library contends that it is not the owner of the subject sidewalk, nor is responsible for its maintenance and submits a copy of an agreement [*4]dated December 8, 1897, entered into by the City, the Library, Astor Lenox and Tilden Foundations. The agreement provides for the City to annually fund the repair and maintenance of the Library and provide for the care of roads, walks, fences, grading and general care of the grounds and appertunances attached thereto. (Toher affirm., ex. B).

In support of its cross motion, the Library relies on two New York County cases involving trip and fall accidents on the sidewalks surrounding the Library. In Bosker v City of New York (Sup Ct, NY County, Feb. 2, 2001, Stallman, J., Index No. 121209/96), the Hon. Michael D. Stallman held that the City is responsible for maintaining the sidewalks abutting the Library. The Library also cites to Gaddy v City of New York (Sup Ct, NY County, January 16, 2007, Mills, J., Index No. 103442/05), in which this court held that the Library made a prima facie showing of entitlement to summary judgment by submitting a copy of the 1897 agreement which imposes responsibility for maintenance of the sidewalks surrounding the Library on the City.

In opposition to the Library's cross motion, Con Edison contends that the location of Gray's trip and fall took place at the same location which was discussed in a prior New York County case. In Silagy v Con Edison (Sup Ct, NY County, Index No. 113337/99), the plaintiff allegedly tripped and fell on sidewalk grating on 40th Street, approximately 40 feet west of the northwest corner of 40th Street and Fifth Avenue. In that case, the Library appeared for a deposition through Mark A. Hirsch (Hirsch), its senior project manager and project coordinator. Hirsch testified that in 1995, the Library entered into a contract with a construction company, York Hunter of New York (York Hunter), for the rehabilitation and replacement of the sidewalks surrounding the Library's building, including the 40th Street side of the building. Hirsch testified that the contract was signed on behalf of the Library by Sandra Polzak, who was the director of the Library's plant management and construction and oversees the maintenance of the facilities.

York Hunter's project executive, William Cote (Cote), was also deposed in the Silagy case and testified that he was responsible for the execution of the contract between York Hunter and the Library, and that the job involved the replacement and repair of the sidewalks which were adjacent to the Library, specifically, the sidewalks around a transformer vault located on West 40th Street. Furthermore, Cote testified that as part of the sidewalk repair and replacement project, York Hunter, entered into a contract with A. Ottavino Contractors, who was a prime contractor for this project. Con Edison contends that, because the Library and its contractors have previously admitted to causing and creating the condition which allegedly contributed to another accident in the area, a question of fact exists as to whether the defect on the sidewalk grating where plaintiff fell was caused by the Library or one of the contractors it hired.

Plaintiff adopts the arguments presented by Con Edison and argues that pursuant to the evidence presented in the Silagy case, a question of fact exists as to whether the Library can be held responsible for the condition of the subject sidewalk and whether the Library had notice of the condition. Plaintiff's attorney, Mark Decicco, states that he had a conversation on January 9, 2008 with Mitchel Herstic (Herstic), the attorney who represented the plaintiff in the Silagy case, who stated that the case was settled between A. Ottavino Corp., York Hunter and the Library.

Plaintiff also contends that the Library's cross motion is premature, because Gray is entitled to testimony from witnesses with knowledge regarding the Library's involvement with the subject sidewalk replacement/repair construction project, the work that was specifically [*5]performed and/or conducted during said construction project, the terms of the contract entered into between the Library and the contractor and or contractors hired to perform the construction work, as well as testimony with regard to the ownership, operation, control, maintenance, management, supervision, repair and inspection of the subject sidewalk.

The First Department has held that evidence otherwise excludable at trial such as deposition testimony offered in other unrelated cases may be considered in opposition to a motion for summary judgment provided "so long as it does not become the sole basis for the court's determination." In re New York City Asbestos Litigation, 7 AD3d 285, 285 (1st Dept 2004). Here, the affirmation of plaintiff's attorney, Mark DeCicco (DeCicco), concerning his conversation with Herstic about the prior work at the subject area as well as the deposition testimony of both Hirsch and Cote from the Silagy matter, raise a question of fact as to whether the Library's prior construction in the area may have contributed to the condition which caused the plaintiff's accident. Therefore, as Con Edison and plaintiff's opposition to the cross motion raise a question of fact as to the scope and effect of the past work in the subject area and the Library's involvement with such work, the Library's cross motion for summary judgment must be denied.

Plaintiff requests that based upon the information provided by Con Edison regarding the Silagy matter, including the deposition transcripts of Hirsch and Cote as well as the information DeCicco received from Herstic, a supplemental summons and an amended verified complaint should be served on York Hunter and A. Ottavino, Corp.

CPLR 3025 (b) states that "[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." As there exists a question of fact regarding York Hunter and Ottavino Corp.'s past work at the location of plaintiff's trip and fall, plaintiff should be allowed to amend his complaint to add both of these new parties.

CONCLUSION AND ORDER

Accordingly, it is hereby

ORDERED that the New York City Transit Authority and the Metropolitan Transit Authority's motion for summary judgment is granted and the complaint is severed and dismissed with costs and disbursements to these parties as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the New York Public Library's cross motion is denied; and it is further

ORDERED that plaintiff's cross motion to serve a supplemental summons and an amended verified complaint on York Hunter of New York and A. Ottavino, in the proposed form annexed to the moving papers, is granted; and it is further

ORDERED that the defendants shall serve an answer to the amended verified complaint within 20 days from the date of said service; and it is further

ORDERED that the Clerk of Trial Support shall transfer ths action to a non-transit IAS Part inasmuch as the New York City Transit Authority is no longer a party or third-party. [*6]

Dated: July 3, 2008

ENTER:

_______________________

J.S.C. Footnotes

Footnote 1: Depositions of the parties were scheduled to take place in April and May of 2008.

Footnote 2: Section 7-210 (b) of the Administrative Code of the City of New York states:

b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.

Footnote 3: The City objects to the law the Authorities present in support of their motion. It takes no position on the question of the Authorities' entitlement to summary judgment based upon the facts of the case.