Teixeira v City of New York

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Teixeira v City of New York 2011 NY Slip Op 33474(U) December 16, 2011 Sup Ct, NY County Docket Number: 116021/02 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] .- SUPREME COURT OF THE STATE OF NEW YORK HON, MANUB J, W D Ez PRESENT: - NEW YORK COUNTY PART 13 Justice INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. ELLEN TEIXEIRA, Plalntlff (s), -vTHE CITY OF NEW YORK, NEW YORK CITY DEPARTMENf OF TRANSPORTATION , CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., NlCO ASPHALT, INC., FELIX EQUITIES, INC. and FELIX INDUSTRIES, INC., Defendant($) . 116021102 I 1-09-2011 007 FILED CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., -v Thlrd-Party Plalntlwo), - NEW YORK COUNlY CLERKS OFFICE NlCO ASPHALT, INC., Thlrd-Party Defendant(s). The following papers, numbered I to Summary Judgment : 1$ were read on these motion and cross-motions to/ for PAPERS NUMBERED Notlce of Motion/ Order to Show Cause Answering Affidavits - Exhlblts - Affldavits - Exhiblts ... cross motion 9, 1 0 , l l 12, 13, 14, 15 Replylng Affldavlts Cross-Motion: 1- 2, 3 4 , 6-6, 7-8 X Yes No Upon a reading of the foregoing cited papers, It Is Ordered that defendants, FELIX EQUITIES INC. AND FELIX INDUSTRIES INC. s (herein after referred to as FELIX ), motion for summary judgment, is denied. Defendant, NlCO ASPHALT, INC. s (hereinafter referred to as NICO ), cross-motion for summary judgment, is denied. Defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. s (hereinafter referred to as Con. Ed. ) cross-motion for summary judgment, is denied. Plaintiff s cross-motion for summary Judgment, is denied. Plaintiff brought this personal injury action ciaimlng that on April 22,2001, she while rollerblading she tripped and fell on a defective condition In the roadway north of the crosswalk on the south side of the intersection of Fifth Avenue and 72 dStreet, New York, New York. The City of New York and New York City Department of Transportatlon are no longer parties to this action, pursuant to the DecisJon/Order of Hon. Cynthia S. [* 2] Kern dated May 20,201 I, granting them summary judgment. The May 20,201 I Declslon/Order denled plalntifPs cross-motion for summary judgment against defendant Con. Ed., on the issue of liability. FELIX seeks an Order pursuant to CPLR 93212, granting them summary judgment claiming that it did not perform any work In the area where plaintiff claims the accident occurred. FELIX also claims they did not owe a duty to the plaintiff and because their work was only performed below ground or as part of the back fill which did not Involve paving or resealing the roadway. FELIX states that plaintiff assumed the risk and they are not liable. NiCO s cross-motlon pursuant to CPLR 93212, seeks summary judgment clalmlng that it did not perform any work in the area where plaintiff claims the accldent occurred and it was only responslble for the one inch top covering of asphalt. NlCO claims the subsurface contractor was responsible for installation and compaction of the back fill and base. Con. Ed. s cross-motion pursuant to CPLR 53212, seeks summary judgment and relies on the co-defendant s motions. Con. Ed. claims that pialntiff has not presented evidence that the work performed near the alleged accident location created the alleged defective condition in the roadway. Plaintiff opposes the defendants motions and cross-moves pursuant to CPLR s3212, seeking summary judgment against FELIX, NlCO and Con. Ed.. Plalntlff seeks a determination that the location she identifled as where she fell because of a defect In the roadway, was the situs of the work performed by the remaining defendants. Plalntlff also seeks a determination on her claims that FELIX, NlCO and Con. Ed. violated the Department of Transportation and Bureau of Highways standards and rules regarding roadway restoration work. In order to prevail on a motion for summary judgment, the proponent must make a prima facie showlng of entltlement to judgment as a matter of law, through admlsslble evidence, eliminating all material issues of fact (Klein v. City of New York, 81 N.Y. 2d 833, 652 N.Y.S. 2d 723 [1996]). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual Issues (Kaufman v. Silver, 90 N.Y. 2d 204,659 N.Y.S. 2d 250 [1997], Amatulll v. Delhl Constr. Corp., 77 N.Y. 2d 525, 569 N.Y.S. 2d 337 s [1999]). Summary judgment I a drastic remedy that should not be granted where triable Issues of fact are raised and cannot be resolved on conflicting affidavits (Millerton Agway Cooperative v. Briarcliff Farms, Inc., 17 N.Y. 2d S7, 268 N.Y.S. 2d 18,215 N.E. 26 341 [I9661 and Epstefn v. Scally 99 A.D. 2d 713,472 N.Y.S. 2d 318 [N.Y.A.D. Vt Dept. 18841). Defendants, seeking summary judgment In a case involving a defect in pavement or a pothole, have the burden of proving that they did not create the [* 3] hfectlve condltlon (Field v. Clty of New York, 302 A.D. 2d 223,753 N.Y.S. 2d 719 Dept., I1N.Y.A.D. let 20031). Proof that repair work was performed at another I ocation and not the situs of plaintiffs accident is sufflcient for the defendants to Ineet their prima facie burden (Robinson v. City of New York, 18 A.D. 3d 255,836 Dept., IU.Y.S. 2d 610 [N.Y.A.D. lmt 20051). The burden shifts to the plaintiff to 43stablish the existence of facts and condltlons based on the defendants' Iiegligence and the inference of causatlon of the accident (Flores v. City of New 1 Dept., Vork, 29 A.D. 3d 356,815 N.Y.S. 2d 48 [N.Y.A.D. lot 20081). Proof subrnltted Igy plaintiff must be sufficient to permlt a flndlng of proxlmate cause and not be IDased upon speculation (Roblnson v. Clty of New York, 18 A.D. 3d 266, supra citing I Schneider v. Kings Highway Hosp. Ctr, 67 N.Y. 2d 743,490 N.E. 2d 1221,500 :o IU.Y.S. 2d 95 [I9861 ). Plaintiff testified at her deposition (Mot. Exh. F) that the accident occurred on April 22, 2001, as she exlted Central Park at 72"dStreet and Fifth Avenue on the south slde of the Intersection but north of the cross-walk, as she rollerbladed across her left foot fell into a big hole causing her to fall (Mot. Exh. F, pp. 6-11). The deposition transcript of John Dengall NICO's superintendent, responsible for overseeing all of NICO's asphalt pavement work, which began in March of 2001 (Mot. Exh. J, pp. 6-8) is annexed to the motion papers. Mr. Dengall testified that NICO's work was performed in front of 15 East 72"dStreet at Fifth Avenue per the Con. Ed. Report # PS 137432 (Mot. Exh. E) and not at the Intersection where plaintiff claims she fell (Mot. Exh. J, p. 13). Mr. Dengall also testified that cuts numbered 4, 5,6 on 72nd Street, ten feet north of the south curb llne of 72"d Street were made by another contractor (FELIX)(Mot. Exh. J, p. 15). Cut 4 was located eighty feet east of Fifth Avenue, cut 6 was five feet east of Fifth Avenue and cut six began three feet east of Flfth Avenue ending twenty-one feet east of Fifth Avenue (Mot. Exh. J, pp. 35). The deposition transcript of Kerry Watts, a construction representatlve for Con. Ed. I annexed to the motion papers. He states that he was present at the s 72nd Street and Fifth Avenue construction and made sure the contractors adhered to the City's DOT speclflcatlons (Mot. Exh. H, pp. 12-14), Although no reports were prepared, he was present and performed a vlsual inspection of the backfill at the time It occurred, an,d approved It (Mot. Exh. H., pp. 14,32-33,4448). The affidavit of Nicholas Bellizzi, P.E., an engineering expert, retained on behalf of NlCO (Mot. Exh. L) is based on a physical examinatlon o f the situs, revlewed reports, deposition testimony and photographs of the scene. Mr. Belllzi states that there were no photographs that Illustrated the depth of the defect, however those that were available establlsh the defect is not withln a restored pavement cut area (Mot. Exhs. L & 0). He claims that the photographs establish that the restored cut has a rectangular shape, different tone of black asphalt pavement and dark black hot liquid asphalt sealant (Mot. Exh. 0). The defective [* 4] area was irregular In shape, had characteristics of a repaired pothole Instead of a utlllty cut and was adjacent to the repaired area. Defendants NlCO and Con. Ed. rely on the deposltion testimQnyand report of Mr. Belliul to support their clalms that they did not perform any work In the area where plaintiff clalms the accident occurred and are not liable. Pialntlff In support of its cross-motion provides multiple affidavits of Jacques P. Wolfner, P.E.. Mr. Wolfner, physically examined the location on July 22, 2001 and prepared a report in 2004. He also relied on repotts, deposltlon testimony and photographs of the area. He determined that the defect in the area where plaintiff fell was not a pothole caused by wear and tear over tlme, but was the result of an immediate collapse resulting from Improper backfill and pavement restoration work in the adjoining area. Mr. Wolfner annexes copies of work orders to his affidavit and states that there were two repairs made on behalf of Con. Ed. by its contractors that were adjacent to the defect, to alter a manhole and to repair a gas line, within four to seven weeks of the defect occurring. He claims that the defect occurred as a result of faulty repair work and that NlCO dld not complete its restoratlon of the roadway for seven days after the accident so there is no proof that the defect occurred long after the repair work was complete. Upon a review of all the papers submitted to this Court, the defendants have met their prima facie burden of proof establishing that repair work was performed at another location and not the situs of plalntlff s accident. Plalntlff has raised a triable Issue of fact concerning whether the defendants were negligent caused the accident based on improper backfill and pavement restoration work in the area adjoining where the plaintiff fell. Multiple summary judgment motions are to be discouraged in the absence of newly discovered evldence or sufflclent cause (National Enterprises Corp. v. Dechert Price & Rhoads, 246 A.D. 2d 481,667 N.Y.S. 2d 74s [N.Y.A.D. Iat Dept., 19981 and Forte v. Welner, 214 A.D. 2d 397,624 N.Y.S .2d 596 [N.Y.A.D. Vt Dept., 19951, Iv. dismissed 86 N.Y. 2d 885, 659 N.E. 26 773,635 N.Y.S. 2d 950,659 N.E. 2d 773 [1995]). Plaintiff previously sought summary Judgment against Con. Ed. and that motion was denled because there remained issues of fact concerning whether she assumed the risk from the open and obvious condltlons in the roadway. Plaintiff made no showing on the cross-motion that there is newly discovered evldence, or that there was a sufflclent cause to permlt an additlonal motlon for summary judgment. The plalntiff s cross-motion should be addressed solely as opposition to the defendants motion and cross-motions. There remairis a trlable issue of fact concernlng whether the defendants were negllgent and caused the accident based on improper backfill and pavement restoration work in the area adjoining where plaintiff fell. [* 5] Accordingly, It Is ORDERED that defendants FELIX EQUITIES INC. AND FELIX INDUSTRIES iNC. s, motion pursuant to CPLR 53212, for summary judgment Is denled, and it is further, ORDERED that NlCO ASPHALT, INC. s cross-motion pursuant to CPLR 53212, for summary judgment Is denied, and It Is further, ORDERED that CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. s cross-motion pursuant to CPLR 53212, for summary judgment Is denied, and It Is further, ORDERED that plaintiffs cross-motion pursuant to CPLR 53212, for summary Judgment is denied, and It is further, ORDERED that the action shall contlnue to mediation and/or trial. This constitutes the decision and order of this court. Dated: December 16, 2011 mANUEL J. MENDEZ J.S.C. MANUEL 3. MEND= JAW. Check one: c? FINAL DISPOSITION Check if appropriate: 0 DO NOT POST X NON-FINAL DISPOSITION REFERENCE NEW YORK COUNT( CLERK S OFFICE

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