Nieves v City of New York

[*1] Nieves v City of New York 2010 NY Slip Op 51083(U) [27 Misc 3d 1237(A)] Decided on June 10, 2010 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2010
Supreme Court, Kings County

John Nieves, Jr., Plaintiff,

against

The City of New York, Defendant.



49135/98



The plaintiff was represented by: Brand, Brand Nomberg & Rosenbaum, LLP

286 Madison Avenue Suite 702

New York, NY 10017

The defendant was represented by: Michael Cardozo - Corporation Counsel350 Jay Street - 8th Floor

Brooklyn, NY 11201

Mark Partnow, J.

Upon the foregoing papers, defendant The City of New York (The City) moves, pursuant to CPLR 4401 and 4404, for an order granting judgment in its favor, notwithstanding the jury verdict in favor of plaintiff, based upon plaintiff's failure to establish a prima facie case as against the City, and because the jury's verdict was against the weight of the evidence.

PROCEDURAL HISTORY

The instant motion arises out of a lawsuit commenced by plaintiff to recover damages for personal injuries when, on October 11,1997, the motorcycle he was operating came in contact with a defective roadway condition in the vicinity of the toll plaza for the Brooklyn Battery Tunnel (the Tunnel) in Brooklyn, New York. Plaintiff alleged that the City's negligence in failing to properly maintain the roadway caused his accident.

The trial of this matter was assigned to this court. Over the course of the trial, testimony was given by: John Nieves (Nieves), the plaintiff; Alberto Vazquez (Vazquez), an eye witness; Robert Eckert (Eckert), a now-retired former employee of the Triboro Bridge and Tunnel Authority (TBTA); Sherry Johnson-O'Neill (Johnson-O'Neill), a City Department [*2]of Transportation (DOT) records searcher; Luis Musto (Musto), a City DOT maintenance supervisor; and two liability experts, Joseph Champagne (Champagne) and Dennis Toaspern (Toaspern).

Plaintiff's theory of liability was that a defective asphalt patch was installed by the City. Plaintiff introduced the testimony of Eckert to provide evidence in support of said contention. Eckert testified that to his knowledge, the defect, referred to as a transverse patch, was in fact an expansion joint and not a patch, and was part of the original construction of the road. He testified that the subject condition was present from the time he first began working with at the Brooklyn Battery Tunnel in 1975, up to his retirement in 2001, and that in the approximately 25 years that he worked at the Tunnel, he never saw the City perform any work on the subject condition. He also testified that to his knowledge, and without searching the TBTA's records, the TBTA did not maintain the area in question.Musto, who began working in DOT's Arterial Maintenance Unit in 1997, also testified that, to his knowledge, the City had never performed any work at the location where plaintiff's accident took place. He testified that his unit is the only entity at DOT that performs maintenance, such as asphalt patchwork, on the surface of the City's arterial highways in Brooklyn, that it was his responsibility to assign all roadwork to be performed in the area of plaintiff's accident, and that his area of jurisdiction ended at the exit ramp to Hamilton Avenue, located several hundred feet from the accident site.

Johnson-O'Neill testified regarding a search conducted by her office which encompassed, over the two years which preceded the accident, any complaints, maintenance records, permits and contracts relating to the site where the accident occurred. The search revealed that the only record relating to any City work pertained to the repair of an impact attenuator within the general vicinity of plaintiff's accident.[FN1] The search further revealed various permits issued by the City to the State of New York and private contractors for work in the general vicinity of plaintiff's accident.

Champagne, an engineer retained by plaintiff, testified that the alleged defect was in fact a roadway patch and not an expansion joint. Basing his opinon on his experience as an engineer, he further testified that the patch was installed negligently and was in a raised condition from the moment it was installed.

Toespern, called as an expert in motorcycles and accident reconstruction, testified using photographs that were admitted into evidence, as well as his own on-site inspections, the second of which, for the purpose of taking measurements, was a collaboration with Champagne.

Following the conclusion of testimony, the jury rendered a verdict on the question of liability against the City.

DISCUSSION[*3]

At the outset, the court rejects the City's first stated contention, that it is entitled to relief on the present motion because the plaintiff failed to prove under Section 7-201(c)(2) of the Administrative Code of the City of New York, that the City had prior written notice of the defective condition.[FN2] In the first place, while the City alleged certain affirmative defenses in its answer, it failed to allege, and thus waived, its right to rely on plaintiff's purported failure to serve prior written notice (World Literature Crusade v Hayner, 71 AD2d 703 [1979]). In addition, it fails to even address plaintiff's contention that the issue of lack of prior written notice was never argued before, or presented to, the jury. Accordingly, said contention cannot serve as the basis for relief on the instant motion.

Alternatively, the City contends that despite the jury's verdict in favor of plaintiff, plaintiff failed to tender any evidence that the City caused and created the "allegedly defective" condition through an affirmative act of negligence. In this regard, it is well settled, as the legal standard, that "[a] motion for judgment as a matter of law pursuant to CPLR 4401 may be granted when the trial court determines that, upon the evidence presented, there is no rational process by which a jury could find in favor of the nonmoving party. In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Hand v Field, 15 AD3d 542, 543 [2005] [citations and internal quotation marks omitted]).

In opposition to the grounds asserted by the City in this branch of its motion, plaintiff first argues that there was ample undisputed evidence that based upon the testimony of plaintiff, Vazquez, Toespern and Champagne, cars going over this "transverse patch" were observed "bottoming out", thus demonstrating that the roadway was not in reasonably safe condition. He notes that at trial, photographs taken by Vasquez on the day after the accident and admitted into evidence showed a raised bump in the roadway that extended across the entire roadway, and bore gouge marks which, according to Vazquez, were caused by cars' [*4]engine carriages coming into contact with it. Further citing Champagne's testimony that the roadway was not reasonably safe, and Toespern's testimony concerning the way in which the "bump" would affect plaintiff's ability to control the motorcycle, plaintiff avers that there was ample evidence of the unsafe condition of the roadway before the jury.

Plaintiff further asserts that there was ample evidence for the jury to find that the bump in the road resulted from a negligent repair, citing Champagne's testimony that (1) jackhammer marks could be seen in the photos, and (2) this was not an expansion joint or work from the 1940's.

However, even disregarding any challenge to the sufficiency of evidence which was introduced by plaintiff to show the existence of a defect, nothing in the record or in the instant motion demonstrates that the jury based its verdict on any evidentiary showing that the City, in fact, created the defective condition. Where, as here, a plaintiff seeks to recover damages by showing that the locality created the defect or hazard through an affirmative act of negligence, it must show that the work performed by the City immediately results in the dangerous condition (see Yarborough v City of New York, 10 NY3d 726 [2008]; Obelor v City of New York, 8 NY3d 888 [2007]; see also Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Bielecki v City of New York, 14 AD3d 301 [2005]).

In the present case, as in Obelor (8 NY3d at 888), plaintiff presented no evidence of who last repaved the subject section of the roadway before the accident, when any such work may have been carried out, or the condition of the site of the accident immediately after any such resurfacing (Obelor, 8 NY3d at 890). Defendant, who argues that no witness offered testimony concerning when the alleged patch was installed or who, in fact, installed it, correctly and convincingly contends that Champagne's testimony, upon which plaintiff chiefly relied in attempting to prove the City's liability, was not based on any objective tests or measurements to support his conclusions, and lacked any reference to documentary or testimonial evidence to support his "assumption" that the subject condition was a raised asphalt patch. Moreover, although, in support of his opinion that the patch was defective, and violated the City's own industry codes,[FN3] Champagne testified at length about the patch's condition at the time he inspected it, he offered no evidence of when the patch was installed, who installed it, or how it was installed.

In conclusion, since the record clearly shows that plaintiff failed to introduce any evidence at trial showing that the City created the condition through an affirmative act of negligence and that the condition was immediately dangerous upon the completion of any [*5]City roadwork, the court, pursuant to CPLR 4404(a), grants defendant's motion to set aside the jury's verdict and further directs that judgment be entered in favor of defendant.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:An impact attenuator is a foam barrier meant to lessen the impact of a car accident.

Footnote 2:NYC Administrative Code Section 7-201(c)(2) provides: "No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe."

Footnote 3:When testifying, Champagne identified jackhammer marks that he said were made "to get rid of the cement concrete pavement underneath it," and further identified "markings from automobiles hitting this patch and bouncing up and so on." He stated that the asphalt patch repair was improper in that it was "put in to try to smooth things out" and that "you don't patch cement concrete with asphalt concrete" because the "patch would start to break up due to weather conditions."