Miranda v City of New York

[*1] Miranda v City of New York 2010 NY Slip Op 51913(U) [29 Misc 3d 1220(A)] Decided on November 10, 2010 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2010
Supreme Court, New York County

Socorro Miranda, Plaintiff,

against

The City of New York, NEW YORK CITY TRANSIT AUTHORITY and "JOHN DOE" (INTENDED TO BE THE DRIVER OF THE M7 BUS ON DECEMBER 28, 2006), Defendants.



103780/07



For plaintiff:

David Tolchin, Esq.

Jaroslawicz & Jaros LLC

225 Broadway, 24th Fl

New York, NY 10007

(212) 227-2780

For defendant City of New York

Michael A. Cardozo

Corporation Counsel

by: Peter C. Lucas, Esq.

Assistant Corporation Counsel

New York City Law Department

100 Church St, 4th Fl

New York, NY 10007-2601

(212) 442-6851

Michael D. Stallman, J.

It is ordered that the City of New York's motion for renewal and reargument is denied.

In this action, plaintiff alleges that, on December 28, 2006, the bus driver of the M7 bus closed the doors on her as she was boarding the bus, knocking her down, causing her to lose balance, to fall from the bus, and to trip over an alleged defect in the roadbed—a valley-like depression—in front of the bus shelter at the bus stop on Amsterdam Avenue.

By decision and order dated April 23, 2010, this Court denied the City of New York's motion for summary judgment dismissing the complaint as against the City. In support of its motion, the City argued that it did not have prior written notice of the alleged roadway defect, as required under Administrative Code § 7-201 (c)(2). In denying the City's motion, the Court agreed with plaintiff that a FITS (Field Inspection Tracking System) report raised a triable question of fact as to whether the City had prior written notice.

Although the instant motion purports to seek renewal and reargument, it is clear from the affirmation in support of the motion that the City is seeking only renewal, based on the affidavit of John Messina, an employee of the City's Department of Transportation, which was not offered on the prior motion. The City does not argue that the Court overlooked or misapprehended any matters of fact or law in the prior motion. Messina claims that he serves as the Deputy Director for the Manhattan Roadway Maintenance Unit. Messina Aff. ¶ 3. Messina states, "After reviewing the FITS report for defect number DM2006061008, I determined that this complaint entry was generated as a result of a citizen telephone call in to the 3-1-1 call-in system. More specifically, the Work History page for defect number DM2006061008, the page contains the reference code "CSC". This code means that the FITS report was generated by a complaint made orally through the use of the 3-1-1 system."

Messina Aff. ¶ 5.

It is well established law that " the requirement that a motion for renewal be based upon newly discovered facts is a flexible one, and a court may in its discretion grant renewal upon facts known to the moving party at the time of the original motion.'" 38 Holding Corp. v City of New York, 179 AD2d 486, 488 (1st Dept 1992) (citation). However, renewal is denied because the City has offered no justification or explanation as to why Messina's affidavit was not offered on the prior motion.

Were the Court to grant reargument, the City's motion for summary judgment would have been denied upon renewal. As plaintiff points out, the Court's prior decision and order was based upon the deposition testimony of Stacy Williams, a record searcher for the City's Department of Transportation. The Court cited to page 19 of Williams's deposition. In opposition to this [*2]motion, plaintiff quotes the relevant testimony from page 19 of Williams's deposition as follows: "Q.How did this report [FITS report] get taken?A.I do not know.Q.Was it by a 311 call? Is there anything on the FITS report to indicate?A.No."
Williams's testimony would appear to contradict Messina's affidavit. Williams appeared to testify that nothing on the FITS report would indicate that the complaint was made by a 311 call, whereas Messina avers that the "CSC" code on the FITS report means that the complaint was made by a 311 call. Because two witnesses from the City's Department of Transportation appear to give conflicting testimony as to whether the complaint reflected in the FITS report was made by a 311 call, there remains a triable issue of fact as to whether the City had prior written notice of the alleged roadway defect at issue in this action.

Dated:11/10/10/s/,

J.S.C.

New York, New York