Schwartz v Empire City Subway Co. (Ltd.)

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Schwartz v Empire City Subway Co. (Ltd.) 2012 NY Slip Op 31432(U) May 25, 2012 Supreme Court, New York County Docket Number: 109186/2009 Judge: Saliann Scarpulla 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. SCANNED ON 513012012 [* 1] I , . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART (4 Justice Index Number : 109186/2009 SCHWARTZ, BRYAN INDEX NO. vs. MOTION DATE EMPIRE CITY SUBWAY SEQUENCE NUMBER : 005 MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to Notlce of MotlonlOrder to Show Cause Anawering Affidavits , were rbad on thls motion toAor -Affldavits - Exhlblta IW a ) . INo(r). IN O W - Exhlblts Replying Affldavita Upon the foregolng papers, It is ordered that thls motlon is . . decided per the memorandum Qeclstondatad which disposes of motionseqwnC#@)tWd 5 NEW YORK COUNTY CLERKS OFFICE 1. CHECK ONE: ..................................................................... CASE DISPOSED ........................... MOTION IS: 0GRANTED CHECK IF APPROPRIATE: ................................................ 0SETfLE ORDER 2. CHECK AS APPROPRIATE: - 3. DO NOT POST DENIED 0 NON-FINAL DISPOSITION 0OTHER GRANTED IN PART 0SUBMIT ORDER FIDUCIARY APPOINTMENT CIREFERENCE [* 2] 8 I Plaintiffs, Index No.: 109186/2009 Submission Date: 02/29/20 12 - againstEMPIRE CITY SUBWAY COMPANY (LIMITED), VERIZON NEW YORK INC. and VERIZON C1 0 CATIONS, INC ., For Defendants: Conway, Farrell, Curtin & Kelly, P.C. 48 Wall Street New Y ork, NY 10005 . . For Plaintiff: Wingate, Russotti & Shapiro, LLP 420 Lexington Ave., Suite 2750 New Y ork, NY 10 170 Papers considered in review of this motion for summary judgment: Notice ofplaintiffs motion . . . . . I Aff in Opposition . . . . . . . . . . . . . 2 Reply Aff . . . . . . . . . . . . . . . . . . .3 Notice of ECS s motion. . . . . . . . 4 Aff in Opposition . . . . . . . . . . . . ..5 Reply Aff . . . . . . . . . . . . . . . . . . .6 . FILED MAY 30 2012 NEW YORK COUNN CLERK S OFFICE . HON. SALIANN SCARPULLA, J.: In this action to recover damages for personal injuries, plaintiffs Bryan .Schwartz ( Schwartz ) and Ariane Gold ( Gold ) (collectively plaintiffs ) move for summary judgment on the issue of liability (motion sequence no. S).-Defe;dant. Empire City - - . Subway Company (Limited) ( ECS ) moves separately for summary judgment dismissing [* 3] the complaint (motion sequence no. 6). Motion sequence nos. 5 and 6 are consolidated for disposition. This action arises from injuries Schwartz sustained on May 14, 2009 when he allegedly fell on a manhole cover (the subject manhole cover ) in a crosswalk at 73 d Street and Columbus Avenue in Manhattan. ECS owned and maintained the subject manhole cover. Schwartz testified that on the date of the accident, the weather was misty, causing condensation on the manhole cover. Leonard Ferguson ( Ferguson ), ECS s legal liaison and former project manager, testified at his deposition that it was ECS s practice to replace manhole covers after receiving complaints that they were too slippery, though ECS did not make periodic. . inspections of manhole covers to make sure their antislip surfaces were intact. Calvin Gordon ( Gordon ), a Specialist with ECS, attests that he performed a search of ECS s records and did not find any notices or complaints about the subject manhole cover. Both parties retained experts to test the subject manhole cover s coefficient of - Stanley . friction, which measures a surfaces s resistance to slippage. Plaintiffs expert1 . ._ .. . . . Fein ( Fein ), and ECS s expert, Ali Sadegh ( Sadegh ), both acknowledge that the American Society for Testing and Materials recommends a coefficient of .5 or greater for roadway surfaces and hardware. Fein attests that he measured the subject manhole cover s coefficient of friction as -41, and that the subject manhole cover was degraded as a result of vehicular and pedestrian traffic . . . Sadegh took several 2 . [* 4] measurements, none of which were below .5. According to Sadegh, [ilt would be impossible for a layinan to determine when the minimum [coefficient of friction] threshold level is reached by physical inspection alone. Plaintiffs commenced this action in June 2009, alleging that ECS was negligent in failing to properly maintain the manhole cover. In their Bill of Particulars, plaintiffs assert violations of City Highway Rules, 34 RCNY $5 2-08(b)(l), 2-13(n), 2-1 1, and Administrative Code ofthe City of New York @ 19-147(d). Plaintiffs now move for sumnary judgment on the issue of liability, arguing that the subject manhole cover s coefficient of friction was below the industry standard. Plaintiffs further contend that . . ECS s failure to inspect the subject manhole cover is a violation of City Highway Rules, 34 RCNY 5 2-07(b) and thus negligence as a matter of law. Though plaintiffs do not argue that ECS had actual notice of the defect, they contend that ECS is imputed with constructive knowledge of the dangerous condition because ECS failed to make any inspections of its manhole covers. In opposition, and in support of its summary judgment motion, ECS argues that . - the slippery condition of the subject manhole cover is not an actionable defect, and that Fein s affidavit is insufficient to establish that the condition was dangerous. ECS hrther maintains that it should not be imputed with constructive notice because the alleged Gold asserts a derivative claim as Schwartz s spouse. In October 201 1, the parties stipulated to discontinue the action as to Verizon New York, Inc. and Verizon Communications, Inc. - 3 [* 5] condition was latent. Lastly, ECS argues that it did not violate any code, rule or regulation, and that there is no regulation requiring manhole covers to be "slip-resistant ,''2 Discussion A movant seeking suimnary judgment must make aprimafacie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med, Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City of New York,49 N.Y.2d 557 (1980). Here, ECS has made aprima face showing of entitlement to summary judgment .. dismissing the complaint. To establish common law negligence liability, plaintiffs must show that ECS created or had actual or constructive notice of the alleged dangerous condition. See Early v. Hilton Hotels Corp., 73 A.D.3d 559, 561 ( lstDept. 2010). Plaintiffs do not argue that ECS created the subject manhole cover's slippery condition, I but that the cover degraded-"as a result of vehicular and pedestrian traffic . , .". Further, .. ECS attests, and plaintiffs do not dispute, that ECS did not have actual notice that the subject manhole cover was too slippery. Plaintiffs do not oppose ECS's assertion that ECS did not violate 34 RCNY $8 2-13(n), 2-1 1, or Administrative Code of the City of New York 5 19-147(d). [* 6] * I Plaintiffs maintain that the Court should impute ECS with constructive notice of the defect because ECS failed to inspect the subject manhole cover as required by 34 RCNY 2-07(b)( I).j However, constructive notice is not imputed where a layinan could not have discovered the defect by a reasonable inspection, see Rapino v. City of New York, 299 A.D.2d 470, 471 (2d Dept. 2002), and plaintiffs do not contest Sadegh s attestation that a layman could not have determined the subject manhole cover s coefficient of friction by reasonable inspection alonen4See Monroe v. New York, 67 A.D.2d 89, 96-97 (2d Dept. 1979) (Though defendant had both a coininon law and statutory duty to inspect its property, and failed to make a reasonable inspection, negligence claim was properly dismissed because the alleged defect was latent.); see also .. Hayes v. RiverbendHous. Co., Inc., 40 A.D.3d 500, 501 ( lStDept. 2007); Gonzalez v. Banzer, 2004 N.Y. Misc. LEXIS 2485, at *5-6(Sup. Ct. King Co. 2004). Accordingly, ECS is entitled to summary judgment dismissing the omp plaint.^ 34 8 RCNY 2-07(b)( 1) states that the owners of covers or gratings are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware. Plaintiffs maintain that ECS should be precluded from presenting an expert affidavit in support of this motion because ECS allegedly did not respond to plaintiffs demand for expert disclosure. However, failure to respond to a demand for disclosure does not automatically preclude a party from later offering expert testimony. See Hernandez-Vega v. Zwanger-Pesiri Radiology Group, 39 A.D.3d 710, 710-1 1 (2d Dept. 2007). Because [m]ere notice of a general or unrelated problein is not enough to establish notice of a particular defect, Hayes, 40 A.D.3d at 500, the Court rejects plaintiffs argument that ECS was on notice of the subject manhole cover s slippery condition because ECS was previously sued in relation to a separate manhole cover in the -- --- [* 7] In accordance with the foregoing, it is hereby ORDERED that the motion for summary judgment by plaintiffs Bryan Schwartz and Ariane Gold is denied; and it is further ORDERED that the motion for summary judgment by defendant Empire City Subway Company (Limited) is granted; and it is hrther ORDERED that the Clerk of the Court is directed to enterjudgment accordingly. This constitutes the decision and order of the Court. Dated: New York, New York May252012 ENTER: FILED MAY 30 2012 NEW YORK COUNW CLERK3 OFFICE Bronx. Further, because the Court holds that ECS did not have actual or constructive notice of the allegedly dangerous condition, the Court does not address whether the alleged condition is an actionable defect, or whether Fein s affidavit is sufficient to establish a defect.

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