Masotto v City of New York

[*1] Masotto v City of New York 2013 NY Slip Op 50285(U) Decided on January 25, 2013 Supreme Court, Kings County Ash, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2013
Supreme Court, Kings County

Thomas J. Masotto, Plaintiff,

against

The City of New York, Alisa Construction Co., Inc., 85 Adams Street LLC, MRC Contracting, Inc., and Andres Rebilas, Defendants.



30388/05



Plaintiff was represented by Jonathan Rivera, Esq., Manuel A. Romero PC, Brooklyn, NY; Defendant City of New York was represented by Shannon Colabrese, Esq., Corporation Counsel, Brooklyn, NY; Defendant Hylan was represented by Richard Eric Leff, Esq., McGivney & Kluger PC, New York, NY; Defendant Alisa Constructing was represented by Anne Marie Garcia, Esq., Baxter Smith & Shapiro PC, Hicksville, NY; and Defendant MRC Contracting was represented by Allan G. Larson, Esq., Staten Island, NY.

Sylvia G. Ash, J.

The following papers numbered 1 to 20 read herein:Papers Numbered



Notice of Motion/Order to Show Cause/ [*2]

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3; 4-5; 6-7; 8-9

Opposing and Reply Affidavits (Affirmations)10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20

In this personal injury action:

The plaintiff Thomas J. Masotto (plaintiff) cross-moves for (a) partial summary judgment on liability against the defendant/third-party plaintiff City of New York and against the defendants 85 Adams Street LLC (Adams), Alisa Construction Co., Inc. (Alisa), MRC II Contracting, Inc. (MRC), and Andres Rebilas (Mr. Rebilas), (b) leave to amend his bill of particulars and deeming it to be timely served or, in the alternative, dispensing with such leave as unnecessary, (c) in effect, pursuant to CPLR 3124, to compel the defendants to respond to his discovery demands or, in the alternative, pursuant to CPLR 3126, precluding them from submitting evidence as to those items of discovery for which they have failed to respond or, in the alternative, striking their answers for willfully failing to respond to his discovery demands, and (d) extending the note of issue deadline (Seq. No. 9).

The defendant/third-party plaintiff City of New York cross-moves for an order granting it summary judgment dismissing plaintiff's complaint and co-defendants' cross claims insofar as asserted against it (Seq. No. 8).

The third-party defendant Hylan Datacom & Electrical, Inc. (Hylan) cross-moves for an order granting it summary judgment dismissing the third-party complaint, plaintiff's complaint, and all cross claims insofar as asserted against it (Seq. No. 7).

The defendants Adams and Alisa jointly move for an order granting each of them summary judgment dismissing plaintiff's complaint and co-defendants' cross claims insofar as asserted against each of them (Seq. No. 5).

BACKGROUND

On Friday, July 9, 2004 at about 2:30 p.m., the light globe [FN1] of a streetlight suddenly fell on plaintiff's vehicle as he was driving in the middle of the block on York Street between Adams and Pearl Streets in Brooklyn. The light globe's glass portion smashed the sunroof of plaintiff's car and hit him on the head and face. It was later found in the front passenger seat of his vehicle. The light globe's aluminum portion, in the shape of a 2-by-2 foot oval, bounced off the top of his vehicle and landed on the street in front of him. It was quickly removed from the scene of the accident by an unknown individual and was never found.

The City of New York owned the subject streetlight, known as "NS 1E," meaning "north [*3]side, first pole east of the corner" of York Street with Pearl Street as the cross street. The subject streetlight was maintained by Hylan, the City's exclusive contractor for all streetlights in Brooklyn at the time. It was located inside a project site owned by Adams, which retained Alisa as the general contractor, which, in turn, retained MRC to perform demolition and excavation work on the site. MRC leased an excavator with an operator, Mr. Rebilas, from an unidentified party.

The project site was expanded, under the City permits, to encompass one side of the sidewalk and its adjacent traffic lane in the two-lane York Street. During demolition and excavation at the project site, the remaining single lane on York Street was open for traffic. This single open lane was separated from the project site by a temporary barrier comprised of a chain-link fence, some plywood, and canvas. The streetlight was within the confines of the project site as so expanded. The streetlight's cross-arm with the light globe at the far end of it projected over the temporary barrier and was suspended above the open traffic lane of York Street, but did not obstruct it in any way. The cross-arm was either six or eight feet long, as measured from the streetlight pole to its farthest point stretching above York Street. The light globe was mounted for the length of about 4 to 6 inches at the far end of the cross-arm.[FN2] It was fastened to the cross-arm through the use of a clamp [FN3] that was held in place by nuts and bolts. Both the clamp, which was about 1½ inches wide, and the bolts were located inside the light globe.

Immediately before the accident, Mr. Rebilas was moving his excavator within the confines of the barricaded project site when one side of the excavator's steel tracks came in contact with the base of the streetlight.[FN4] The mechanical impact of the excavator against the streetlight served to dislodge the light globe.

In September 2005, plaintiff commenced the instant action against the City, Adams, Alisa, MRC, and Mr. Rebilas. Plaintiff has not sued, nor has he asserted any claims, against Hylan. He alleges residual injuries of his neck and lower back, but no psychological injuries as a result of his [*4]accident.[FN5] His claim for the damage to his automobile, which was leased, was an out-of-pocket $1,000 deductible. In the course of this action, Mr. Rebilas, failed to appear, and a judgment on liability was entered against him on default by order dated August 18, 2006. The remaining defendants answered, with Adams and Alisa appearing jointly, and asserted numerous affirmative defenses as well as cross claims against one another for contribution and indemnification.[FN6] In February 2009, the City impleaded Hylan seeking contribution and indemnification. Hylan answered, asserting a counterclaim against the City as well as cross claims against the other first-party defendants for contribution and indemnification.

In August 2011, plaintiff filed a note of issue. In October 2001, Adams and Alisa jointly moved for summary judgment. By order dated February 17, 2012, their summary judgment motion was adjourned. The same order vacated the note of issue and granted plaintiff leave to file a new note of issue by June 13, 2012. In May 2012, the City and Hylan separately cross-moved for summary judgment. By order dated June 8, 2012, the parties' time to cross-move was extended to June 15, 2012. Two days prior, on June 13, 2012, plaintiff cross-moved, inter alia, for partial summary judgment on liability. Following extensive briefing and upon oral argument, all four motions/cross motions were deemed fully submitted on July 13, 2012, and the Court reserved decision.

I. PROCEDURAL ISSUES

Timeliness of Summary Judgment Cross Motions

The time for the parties to serve their summary judgment cross motions is controlled by the filing of a new note of issue, rather than from the filing of the earlier vacated note of issue (see Johnson v Ladin, 18 AD3d 439, 442 [2d Dept 2005]). The summary judgment cross motions here are timely for the reasons that (a) the February 17, 2012, order vacated the original note of issue; (b) the June 8, 2012, order extended the time by which cross motions for summary judgment could be served; (c) the parties cross-moved for summary judgment before the June 15th deadline; and [*5](d) plaintiff has not yet filed a new note of issue. Accordingly, the motions are timely (see Williams v Peralta, 37 AD3d 712, 713 [2d Dept 2007]).[FN7]

Timeliness of Plaintiff's Amendment of His Bill of Particulars

A party may amend his bill of particulars once, as of course without leave of the court, before the filing of a note of issue (see CPLR 3042 [b]). Because plaintiff served defendants with his amended bill of particulars after the original note of issue had been vacated and the new note of issue has not yet been filed, he is not required to seek leave to serve his amended bill of particulars. Accordingly, the branch of plaintiff's cross motion for leave to amend his bill of particulars is denied as unnecessary, and the Supplemental and Amended Bill of Particulars dated April 27, 2012, as annexed as Exhibit 12 to plaintiff's cross motion (hereinafter, the amended bill of particulars), is deemed served (see Leach v North Shore Univ. Hosp. at Forest Hills, 13 AD3d 415, 416 [2d Dept 2004]; Reitman v St. Francis Hosp., 2 AD3d 429, 429-430 [2d Dept 2003]).[FN8]

Plaintiff's Request for Outstanding Discovery

The branch of plaintiff's cross motion for an order compelling production of certain documents is granted to the extent that, as more fully set forth in the decretal paragraphs below, Alisa is directed to produce laser color copies of all photographs that were attached to Alisa's Incident Report dated July 9, 2004,[FN9] and Adams, Alisa, and MRC are directed to produce the identity of any flagmen that were actually posted, or were supposed to be posted, at and outside the project site between 7 a.m. and 2:30 p.m. on the day of the accident.[FN10]

Plaintiff's request for records pertaining to the repair and/or removal of the subject streetlight following the date of the accident is denied. Evidence of subsequent repairs is not admissible in a negligence case either to show negligence or as an admission of negligence (see Cacciolo v Port Auth. of New York and New Jersey, 186 AD2d 528, 530 [2d Dept 1992]).

Defendants' failure to respond to plaintiff's outstanding discovery requests was not willful, deliberate, or contumacious warranting the imposition of punitive sanctions of preclusion or striking [*6]their answers (see CPLR 3126; cf. Arpino v F.J.F. & Sons Elec. Co., Inc., 2012 WL 6028883, 2012 NY Slip Op 08271 [2d Dept 2012]).

Plaintiff's Request for Extension of Time to File a New Note of Issue

The deadline to file a new note of issue is extended through and including July 15, 2013. No further extension will be permitted "except with leave of court upon good cause shown" in accordance with CPLR 3212 (a).

II. NON-CORE SUBSTANTIVE ISSUES

Plaintiff's Claims under the Labor Law

Plaintiff's claims under Labor Law §§ 200 and 241 (6), as pleaded in his amended bill of particulars, are dismissed. To invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents, "a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent" (Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577 [1990] [internal quotation marks and citations omitted]).[FN11] As plaintiff was driving on a public street abutting the project site when his accident occurred, he was not a member of the class of persons intended to be protected by Labor Law §§ 200 and 241 (6) (see Morales v 569 Myrtle Ave., LLC, 17 AD3d 418, 420 [2d Dept 2005]; see also Fonzi v Beishline, 270 AD2d 912, 913 [4th Dept 2000]).

Plaintiff's Claims under the Administrative Code

Plaintiff's claims under New York City Administrative Code § 19-109 (a) and § 19-121 (b) (6), as further asserted in his amended bill of particulars, are dismissed. Administrative Code § 19-109 (a) concerns protective measures to be taken by anyone who opens or disturbs the pavement or excavates in a public street, or uses part of a street (or sidewalk) in a manner that obstructs travel. This provision is not applicable to the facts of this case. The portion of the street where the accident occurred was not part of the project site and was properly separated from it by a temporary barrier.

Separately, Administrative Code § 19-121 (b) (6) requires that any portion of the street that is obstructed with construction material or equipment be shielded by wooden planking, skids or other protective covering. This section is not applicable because the street at issue was not obstructed with construction material or equipment. As noted, the portion of the street that was part of a project site was separated from the remainder of the street by a temporary barrier.

Plaintiff's Claims under the Building Code

Plaintiff's claims under the following provisions of the then-applicable (and since repealed) 1968 Building Code, as cited in his amended bill of particulars, are dismissed as either inapplicable [*7]or without merit: (a) former § 27-127, which applied to maintenance of buildings under construction and their parts; (b) former § 27-128, which imposed additional requirements for safe maintenance of buildings under construction and their facilities; (c) former § 27-1007, which set forth a general scope of former subchapter 19 ("Safety of Public and Property During Construction Operations"), but specified no particular requirements; (d) former § 27-1009 (d), which required that a construction site safety coordinator be designated and present on a construction site; (e) former § 27-2010, which required inspection of construction operations; (f) former § 27-1012, which required inspection of construction equipment for defects; (g) former § 27-1013 (a), which required that the public be safeguarded before electric and other utilities are disturbed; (h) former § 27-1024 (a), which required that one or more watchmen be on duty when a building being demolished exceeded certain dimensions that are not at issue in this case; (i) former § 27-1031, which required drainage and support of party walls, as well as of adjoining ground and structures in excavations; (j) former § 27-1036 (c), which required preparation for demolition of floors and cellars in a structure to be demolished; and (k) former § 27-1054, which governed material handling and hoisting operations.

Plaintiff's Claims under the DOT Rules

Rules of New York City Department of Transportation (34 RCNY) § 2-11 (e) (4) (V) require that flagmen be posted at a work site to direct traffic around an obstructed street lane. This rule provides that:

"Permittees whose work results in the closing of a moving traffic lane, which requires traffic to be diverted to another lane, shall, at all times while actively working at the site, post a flag[man] or utilize an authorized plan for the maintenance and protection of traffic at the point where traffic is diverted to assist motorists and pedestrians to proceed around the obstructed lane" (emphasis added).

The architect's "Site Safety Logistics and Plan; Excavation/Foundation and Superstructure," which was "an authorized plan for the maintenance and protection of traffic" under this rule, did not require that flagmen be posted at the site at all times. Rather, it required that flagmen be posted only under certain conditions, such as during all lifting and hoisting operations, trucks entering and exiting the site, or when materials were being lifted over the abutting sidewalk, or when the gates to the site were opened for deliveries or removal of debris. Plaintiff's accident, however, did not occur during any of those times. Therefore, his claim under this rule is dismissed.[FN12]

Plaintiff's Claim for Negligent Hiring and Retention of Mr. Rebilas

The record lends no support to plaintiff's claim that MRC negligently hired and retained the excavator operator, Mr. Rebilas. To establish the merits of this claim, plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see Jackson v New York Univ. Downtown Hosp., 69 AD3d 801 [2d Dept 2010]). MRC has established its prima facie entitlement to judgment as a matter of law that Mr. Rebilas was qualified to perform excavation work. Mr. Rebilas came highly recommended from the company [*8]that supplied him and the excavator to MRC. He was brought to the project site for a field test that he successfully passed. He had no prior accidents.

In opposition, plaintiff has failed to raise a triable issue of fact. His factual assertions that MRC's operations manager conducted only "a cursory review" of Mr. Rebilas' skills before hiring him are contradicted by evidence (see Manno v Mione, 249 AD2d 372, 373 [2d Dept 1998]). Although Mr. Rebilas lacked an operator's license at the time of the accident, the same was merely on account of his non-union status. In any event, no license was required to operate an excavator (see Peter D'Agostino tr at 50). Accordingly, plaintiff's claim for negligent hiring and retention of Mr. Rebilas is dismissed.

III. CORE SUBSTANTIVE ISSUES

Plaintiff's Common-Law Negligence Claim

Properly pruned, plaintiff's allegations amount to a single claim sounding in common-law negligence.[FN13] He invokes res ipsa loquitur as the principal basis for his entitlement to partial summary judgment on liability. This doctrine, which is "a common-sense application of the probative value of circumstantial evidence" (Abbott v Page Airways, Inc., 23 NY2d 502, 512 [1969]), creates an inference of negligence on defendant's part if "[a] the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; [b] it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] [c] it must not have been due to any voluntary action or contribution on the part of the plaintiff" (Corcoran v Banner Super Mkt., Inc., 19 NY2d 425, 430 [1967] [internal quotation marks and citation omitted]). Plaintiff posits that the light globe could not have fallen on him "in the absence of negligence, that the streetlight, enclosed behind the defendants' construction fence[,] was within the exclusive control of [the] defendants, that the excavator being operated at the time, was within the exclusive control of [the] defendants, and that no act of negligence on [his] part contributed to the happening of the accident" (Plaintiff's Affirmation in Opposition to Adams/Alisa's Motion, ¶ 44). Plaintiff, however, ignores the undisputed fact that the streetlight at issue was not under the exclusive control of the City, Adams, Alisa and MRC, either individually or collectively. In addition, Hylan, which is not sued by plaintiff, served as the City's exclusive streetlight maintenance contractor for the borough of Brooklyn at the time. Hylan could, and did, access the light globe by means of a bucket truck to be parked in the public area of the street abutting the project (see James Owen tr at 42). Hylan also had the right to enter the project site to inspect and, if necessary, repair the base of the streetlight. The temporary barrier that was erected around the project site could not preclude Hylan from [*9]accessing the base of the streetlight.[FN14] In sum, Hylan, as the City's contractor, could access and inspect the light globe without entering the project site, and, in addition, had a legal right to enter the project site to inspect the base of the streetlight. Because it is at least equally probable that plaintiff's accident was caused by Hylan's failure to maintain and repair the subject streetlight, and particularly the hardware that secured the light globe to the cross-arm, not all of the elements of res ipsa loquitur are present (see Camillo v Geer, 185 AD2d 192, 196-197 [1st Dept 1992]; Murphy v City of New York, 19 AD2d 545, 546 [2d Dept 1963], affd without op 14 NY2d 532 [1964]).

Courts generally view with skepticism, if not a jaundiced eye, a plaintiff's attempt to obtain partial summary judgment on liability on the basis of res ipsa loquitur. "[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment . . . . That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). The record reflects that this is not such a rare case; rather, plaintiff's claim to partial summary judgment on liability must be considered under traditional principles of negligence requiring a prima facie showing, as to each first-party defendant, "a legal duty, breach of that duty, proximate causation, and damages" (Luina v Katharine Gibbs School New York, Inc., 37 AD3d 555, 556 [2d Dept 2007]). Plaintiff, however, has not set out or analyzed each element of the legal theory of negligence. Equally important, he has not distinguished between the individual first-party defendants. Instead, he has employed the shotgun approach, contending that all first-party defendants, individually and collectively, failed to maintain the streetlight and the abutting street in safe condition, to provide protection at the work site to passersby, and to operate an excavator safely (see Plaintiff's Affirmation in Support, ¶ 29, page 15). This argument is essentially a restatement of his res ipsa loquitur theory, which, as noted above, cannot carry his case on summary judgment because he has asserted no claim against Hylan. Moreover, with respect to MRC, plaintiff has failed to eliminate a triable issue of material fact whether, under the circumstances, the contact between the track of the excavator and the subject streetlight was the result of Mr. Rebilas' negligent operation (see Kowgios v Johnson, Drake & Piper, Inc., 25 AD2d 739, 740 [1st Dept 1966]). In particular, plaintiff has not demonstrated, by expert evidence or otherwise, how much of a mechanical force (rather than vibration force) the type of a fabricated steel streetlight at issue could withstand, and how much of a mechanical force a track of the excavator at issue (a John Deere 160 LC) could exert on it.[FN15] Accordingly, plaintiff's cross motion for partial summary judgment on liability on his common-law negligence claim is denied as to the City, Adams, Alisa, and MRC without regard to the sufficiency of their opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The City's Potential Liability to Plaintiff [*10]

The City contends that its actions or omissions could not have been the proximate cause of plaintiff's accident. According to the City, the proximate cause of plaintiff's accident was the impact of the excavator against the streetlight. However, the Court rejects the claim that the conduct of Mr. Rebilas in causing one track of his excavator to come in contact with the streetlight was the proximate cause of plaintiff's accident as a matter of law. The allegedly inadequate inspection/maintenance of the light globe, coupled with the streetlight's proximity to the public roadway, must be considered. Even assuming that Mr. Rebilas operated his excavator negligently, the jury could find that the failure of the City (through its contractor Hylan) to inspect and maintain the light globe (and, specifically, the hardware that secured it to the cross-arm) was a substantial legal factor in bringing about the accident.

In the alternative, the City argues that plaintiff is unable to prove that it had actual or constructive notice of any defect with the streetlight or that it caused the streetlight to be defective. "[A] governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty" (Lopes v Rostad, 45 NY2d 617, 623 [1978]). Although the City would not be insulated from liability if the independent contractor's negligence caused injury to a traveler (see Lopes, 45 NY2d at 625), the City generally must have prior actual or constructive notice of a dangerous condition before it may be held liable to an injured traveler (see Burwell v City of New York, 97 AD3d 617, 618 [2d Dept 2012]).[FN16] In this regard, Administrative Code § 7-201 (c) (2) provides that "[n]o civil action shall be maintained against the city for . . . injury to person . . . sustained in consequence of any street,[FN17] . . . sidewalk . . ., or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, . . . being . . . unsafe [or] dangerous . . ., unless it appears that written notice of the . . . unsafe [or] dangerous . . . condition, was actually given to the [specified individual or entity] . . . ." Under this provision, "a plaintiff must plead and prove that the City had prior written notice of a roadway defect, or dangerous . . . condition before it can be held liable for its alleged negligence related thereto" (Hubbard v City of New York, 84 AD3d 1313, 1315 [2d Dept 2011]). Moreover, prior written notice of a defective condition of a streetlight is also required in accordance with Administrative Code § 7-201 (c) for the reason that the streetlight constituted an "encumbrance" on, or an "attachment" to, the sidewalk (accord Tucker v City of New York, 84 AD3d 640, 644-645 [1st Dept 2011], lv denied 17 NY3d 713 [2011]; see also Gavigan v City of New York, 99 AD3d 559, 560 [1st Dept 2012] [assuming, without deciding, that a streetlight was an encumbrance on, or an attachment to, the sidewalk]).

Although it is undisputed that the City had no actual notice of the alleged defect, there is an [*11]issue of fact on the subject of constructive notice. To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Where, as here, "an object capable of deteriorating is concealed from view, a property owner's duty of reasonable care entails periodic inspection of the area of potential defect" (Hoffman v United Methodist Church, 76 AD3d 541, 543 [2d Dept 2010] [internal quotation marks omitted]). "While the extent of the duty varies, generally it is one of reasonable inspection" (Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007] [internal quotation marks and citations omitted]).

Here, the City has failed to establish prima facie that its (or, rather, Hylan's) inspection of its streetlights, specifically with respect to a potential danger of light globes falling on passing motorists, was reasonable. Although the City itself did not inspect the streetlights (see George Bermudez tr at 55), it hired Hylan as its exclusive streetlight maintenance/repair contractor for the borough of Brooklyn. In its contract with Hylan, the City retained the authority to issue work orders to Hylan to correct defective conditions based on complaints or reports received by the DOT, the NYPD, Street Lighting patrol forces, and other interested parties.[FN18] Hylan's witness James Owen testified (at page 12 of his deposition) that, in practice, Hylan performed only drive-by inspections to "see if the light was burnt out, or any physical damage that you could see to the pole." The City's witness George Bermudez confirmed (at page 55 of his deposition) that Hylan's "patrols [were] generally designed [to ensure the] functioning of the light." Insofar as how securely a light globe was attached to the cross-arm, no one from the City or Hylan performed any preventive inspection in this regard,[FN19] even though the City/Hylan contract required that Hylan patrol the City streets and inspect streetlights for, inter alia, defective light globes.[FN20] Instead of performing preventive [*12]inspections, the City and Hylan exclusively relied on after-the-fact incident reports from citizens or from contractors working nearby (see George Bermudez tr at 55-56; Pravin Dedania tr at 36-37). Only after a light globe had already fallen, would it be inspected and replaced ex post facto.[FN21] According to a City witness Pravin Dedania (at page 34, lines 19-23; at page 35, lines 6-7), there were "many different reasons," "not just one reason," why a light globe might be missing from the streetlight; for example, it "[m]ight not be fixed properly or might be lost or might [have] fall[en] down." Although Mr. Dedania characterized a missing light globe as a rare or "very unusual" occurrence, he nonetheless did observe missing light globes at his field inspections at a frequency of as low as one time per annum and as high as three to four times per annum (id. at 54-56). The obvious takeaway from plaintiff's perspective is that the City (through Hylan) performed no preventive inspections of the light globes and their mounting hardware during the time period that encompassed the accident.

The record also indicates, despite the City's argument to the contrary, that a total of five repairs had been made to the subject streetlight (known as "NS 1E" on York Street with Pearl Street as the cross street) within 15 months before plaintiff's accident. On April 3, 2003, Hylan was making its rounds when it noticed that the lamp in this streetlight was out. On the same day, Hylan opened the external latch of the light globe and replaced its lamp.[FN22] Next, on October 20, 2003, the City received a citizen complaint that this streetlight was out as part of a "streetlight outage" (abbreviated as "SLO" in the City's records). Hylan apparently repaired it by performing some work in the transformer room or control room which provided electricity to the streetlight.[FN23] Then, on March 23, 2004, as Hylan was making its rounds, it observed that the door in the base of this streetlight was open. On the same day, Hylan performed the necessary work by closing that door.[FN24] Again, on [*13]March 25, 2004, Hylan observed, during its rounds, that this streetlight was out. On that day, Hylan again opened the external latch of the light globe and replaced its lamp, as well as replaced a photocell.[FN25] Finally, on May 27, 2004, Hylan observed, during its rounds, that the door in the base of this streetlight was again open. On the same day, Hylan performed the necessary work by closing that door.[FN26] The total number of repairs, coupled with the two replacements of the lamp inside the light globe, raises an issue of material fact as to whether the continuous malfunctioning of the subject streetlight should have put the City (through Hylan) on notice that the streetlight's components (and, specifically, the light globe's attachment to the cross-arm) might have been defective as well.

The evidence further establishes that the subject streetlight was in a potentially dangerous location based on its proximity to heavy machinery.[FN27] Even if the excavator had never come in contact with the subject streetlight, it was inappropriate for the unprotected streetlight to be exposed to the vibration forces from the excavator, other heavy machinery on the project site, and the ongoing demolition/excavation operations at the site. As a City witness Margaret Riskalla noted (at page 60 of her deposition), a City street is not typically exposed to vibration. Ms. Riskalla recalled (at page 38 of her deposition) an incident when a light globe fell off at a viaduct on Gowanus Expressway because of vibration.

In sum, plaintiff has raised a triable issue of material fact as to whether the City carried out its duty to inspect the subject streetlight and whether the City should have known of the alleged defect with the light globe if a reasonable inspection of the light globe and its hardware attachments to the cross-arm had been performed before plaintiff's accident. Here, an external inspection of the streetlight and its light globe, as part of Hylan's replacement of its lamp, may have been insufficient because it did not include an examination of the inside components of the light globe, particularly because the clamp with the bolts, which secured the light globe to the cross-arm, was housed within the light globe itself and was not visible from the outside. Accordingly, the branch of the City's cross motion for summary judgment dismissing plaintiff's common-law negligence claim is denied.

Hylan's Potential Liability to the City

Hylan maintains that it was not negligent and that it did not cause plaintiff's accident. Hylan contends that the last time it worked on the subject streetlight was on April 3, 2003, when it replaced a lamp, and that plaintiff has not demonstrated that its replacement of the lamp was in any way [*14]negligent. Hylan further contends that it had nothing do with plaintiff's accident for the reason that the excavator's "collision" with the streetlight caused it.

The Court finds Hylan's arguments unavailing. Hylan is not a first-party defendant. Hylan's direct liability, if any, to plaintiff is therefore irrelevant. Rather, Hylan has been brought in by the City on claims for, inter alia, contractual indemnification. Thus, the correct starting point in the analysis is the contractual relationship between Hylan and the City. The indemnification provision (§ 7.4) in its contract with the City reads, in relevant part, that:

"If any person or property sustains any loss, damage, cost, expense or injury arising out of the operations of the Contractor [Hylan] . . . in the performance of this Contract or from the Contractor's . . . failure to comply with any of the provisions of this Contract . . ., the Contractor shall indemnify, defend and hold the City . . . harmless against any and all claims . . . arising from or in any way related to such operations, or failure to comply with any of the provisions of this Contract . . . ." (italicized font added; bold-face font omitted).

The indemnification provision makes it clear that Hylan's obligation to indemnify the City is triggered by, inter alia, Hylan's failure to comply with the contract. Indemnification does not require proof of Hylan's negligence, and its argument on this subject is a red herring.

The next issue is whether Hylan may have breached its contract with the City. The stated goal of its contract was:

"to provide prompt repairs based on [Hylan's] patrol efforts and work orders received from the [DOT], Department of Parks and Recreations and Con Edison. All street lighting deficiencies shall be repaired within ten (10) days, measured from the date of a work order or date of pick-up (date conditions requiring maintenance or repair of equipment were noticed in the field) by [Hylan's] patrol forces . . . " (emphasis added).[FN28]

Hylan's contractual obligation included an ongoing patrol and inspection of streetlights for defects, a repair of defective light globes, and, if need be, furnishing and installing replacement light globes.[FN29] The record indicates that, despite its broad contractual obligation, Hylan limited its patrol of the City streets to observe whether the streetlights were "on" at nighttime and "off" at daytime, as well as whether there were any visible defects with them — an open door in the base of the streetlight, a downed pole, or a missing light globe. Absent these observations, Hylan's maintenance crew would continue on its route. According to Hylan's superintendent, it was not contractually required to inspect how secure the light globe was mounted to the cross-arm. As noted, Hylan did not periodically inspect the light globe and particularly the clamp and bolts which secured it to the cross-arm. Besides, Hylan has proffered no evidence as to whether any defect in the light globe would not have been discovered upon a reasonable inspection, particularly, since Hylan replaced a lamp — not once, but twice — by opening the light globe of the subject streetlight in the months before [*15]plaintiff's accident. Consequently, there are triable issues of material fact as to whether Hylan complied with the contract with regard to its inspection and maintenance of the subject streetlight and its light globe, and if not, whether this failure created or exacerbated the alleged defect. Tellingly, Hylan, which is in the business of streetlight maintenance and repair, has submitted no expert testimony or other evidence of how much mechanical force a light globe that is properly mounted on the cross-arm could withstand. Accordingly, Hylan's cross motion for summary judgment dismissing the City's third-party complaint is denied.

Adams' Potential Liability to Plaintiff

As a general rule, a property owner which has engaged an independent contractor to perform construction on its premises is not liable for the latter's negligence while the work is in progress. However, a number of settled exceptions to this general rule has rendered it subject to substantial erosion. For example, liability has been found in instances of a danger inherent in the work, and the property owner should have reasonably anticipated that the work would be dangerous to others (see Thomassen v J & K Diner, Inc., 152 AD2d 421, 424 [2d Dept 1989], appeal dismissed 76 NY2d 771 [1990], reconsideration denied 76 NY2d [1990]; see also Kopinska v Metal Bright Maintenance Co., Inc., 309 AD2d 633, 634 [1st Dept 2003]).

It cannot be seriously disputed that excavation and demolition work at the project site was dangerous for the reason that the site encompassed a streetlight and abutted the roadway that was traversed by the public. Adams does not address plaintiff's specific allegations that it was negligent in failing to request that the City remove the streetlight temporarily or, in the alternative, to provide additional support for it. Temporary removal of the streetlight was not the only way in which the risk of injury could have been minimized. One alternative was to use a supporting rope, cable, or wire which is anchored at one end and tied to the streetlight in order to render it more secure. Another alternative was to use motor equipment to support the streetlight, while demolition and excavating work was proceeding (see Jorgenson v Northern States Power Co., 60 Wis 2d 29, 38, 208 NW2d 323, 327 [1973]). The jury may find that if the streetlight had been temporarily removed or, in the alternative, properly secured, plaintiff's accident would not have occurred. There are triable issues of material fact as to whether Adams, as the owner of the site on which demolition and excavation work was performed, was negligent for its failure to have the streetlight temporarily removed or, in the alternative, to have it secured. Accordingly, the branch of Adams' motion for summary judgment dismissing plaintiff's common-law negligence claim against it is denied.

Alisa's Potential Liability to Plaintiff

The threshold question is whether Alisa owed a duty of care to plaintiff as a result of MRC's performance of its work under its contract with Alisa. Typically a breach of a contractual obligation is insufficient to impose tort liability in favor of a third party (plaintiff) unless the promisor (MRC), while engaged affirmatively in discharging its contractual obligation to the promisee (Alisa), created an unreasonable risk of harm to others or increased that risk (see Church v Callanan Indus., Inc., 99 NY2d 104, 111 [2002]). In this context, a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury (see Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 141-142 [2002]).

As is the case with Adams, there is a triable issue of material fact whether Alisa's failure to have the City temporarily remove the streetlight from the project site or, in the alternative, to secure and protect it, when its subcontractor MRC was using heavy construction equipment at the project [*16]site in such a close proximity to the streetlight that an excavator brushed against it, "launched a force or instrument of harm," and resulted in the creation of a duty running from Alisa to plaintiff (see H.R. Moch Co., Inc. v Rensselaer Water Co., 247 NY 160, 168 [1928]). In this regard, the Court notes that the architect's "Site Safety Logistics and Plan; Excavation/Foundation and Superstructure" required that Alisa take all necessary measures to protect all persons affected by construction operations (see Exhibit 2, page SS-1, to Plaintiff's Opposition to Adams and Alisa's motion).[FN30] Plaintiff was indisputably one of the persons who was so affected. Although there is no evidence that Alisa was required, by statute or some legal duty, to close off the remainder of the City street, a trier of fact may find that Alisa had (or should have had) notice of the potential harm resulting from the use of an excavator near an unprotected and unreinforced streetlight (cf. Camillo v Olympia & York Props. Co., 157 AD2d 34, 44 [1st Dept 1990]).

Assuming arguendo that Alisa owed a duty to plaintiff, the next step is to determine whether Alisa breached that duty. It cannot be determined on the present record whether such duty as Alisa owed to plaintiff was violated in this case. There is a triable issue of material fact whether Alisa's project manager, Randy Rosenblum, who was present at the project site daily, including on the day of the accident, observed a dangerous condition that the unprotected streetlight in close proximity to the moving construction equipment posed, whether he should have noticed it, and what, if anything, he should have done about it. His presence at the project site is some evidence of Alisa's constructive notice of this dangerous condition (see Dickert v City of New York, 268 AD2d 343, 343-344 [1st Dept 2000]; Alba v City of New York, 2008 WL 2958268, 2008 NY Slip Op 32111[U] [Sup Ct, NY County 2008]).[FN31]

Cross Claims Among Defendants

The remaining branches of the defendants' and the third-party defendant's requests for dismissal of cross claims against one another are denied. "Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person" (Godoy v Abamaster of Miami, Inc., 302 AD2d 57, 61 [2d Dept 2003], lv dismissed 100 NY2d 614 [2003] [internal quotation marks omitted]). A common-law [*17]indemnification claim may be dismissed only where there are no triable issues of fact concerning the degree of fault attributable to each party involved (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2d Dept 2008]). Dismissal of such cross claims is unwarranted at this time because of the existence of triable issues of fact concerning the degree of fault, if any, attributable to the City, Hylan, Adams, Alisa, and/or MRC.

CONCLUSION

Accordingly, it is

ORDERED that the branch of plaintiff's cross motion in sequence number 9 for partial summary judgment on liability against the defendants City, Adams, Alisa, and MRC is denied as to each such defendant;

ORDERED that the branch of plaintiff's cross motion for partial summary judgment on liability against the remaining defendant Mr. Rebilas is denied as academic for the reason that plaintiff has previously obtained a default judgment against him; and it is further

ORDERED that the branch of plaintiff's cross motion for leave to amend his bill of particulars and deeming it to be timely served is denied as unnecessary; and it is further

ORDERED that the branch of plaintiff's cross motion, in effect, pursuant to CPLR 3124, to compel the defendants to respond to his discovery demands or, in the alternative, precluding them from submitting evidence as to those items of discovery for which they have failed to respond, or, in the alternative, pursuant to CPLR 3126, striking their answers for willfully failing to respond to his discovery demands, is granted to the extent that (a) the defendant Alisa is directed to produce to plaintiff's counsel laser color copies of all photographs that were attached to Alisa's Incident Report, dated July 9, 2004, and (b) the defendants Adams, Alisa, and MRC are directed to produce the identity of any flagmen that were actually posted, or were supposed to be posted, at and outside the project site between 7 a.m. and 2:30 p.m. on the day of the accident, in each case, within thirty days after service on plaintiff's counsel of this decision and order with notice of entry; and this branch of plaintiff's cross motion is otherwise denied; and it is further

ORDERED that the remaining branch of plaintiff's cross motion to extend his time to file a new note of issue is granted, and the same is extended through and including July 15, 2013; and it is further

ORDERED that the City's cross motion for summary judgment in sequence number 8 and the joint motion of Adams and Alisa in sequence number 5 are each granted to the extent that plaintiff's claims under — Labor Law §§ 200 and 241 (6);New York City Administrative Code §§ 19-109 (a) and 19-121 (b) (6);The 1968 Building Code §§ 27-127, 27-128, 27-1007, 27-1009 (d), 27-2010, 27-1012, 27-1013 (a), 27-1024 (a), 27-1031, 27-1036 (c), and 27-1054;Rules of New York City Department of Transportation (34 RCNY) § 2-11 (e) (4) (V) —

together with plaintiff's negligent hiring and retention claims, are all dismissed as against the City, Adams, and Alisa; and the remainder of the City's cross motion and the remainder of the joint motion of Adams and Alisa are each denied; and it is further

ORDERED that Hylan's cross motion in sequence number 7 for an order granting it summary judgment dismissing the third-party complaint, plaintiff's complaint, and all cross claims insofar as asserted against it is denied. [*18]

This constitutes the Decision and Order of the Court.

E N T E R,

_________________________

Sylvia G. Ash, J.S.C. Footnotes

Footnote 1:A light globe, also known as a "luminaire," is a "complete lighting unit: light source, holder, globe or shade, reflector (where provided), and means of attachment" (Wiley Dictionary of Civil Engineering & Construction at 357 [L.R. Webster ed 1997]). The light globe for the type of the streetlight at issue was 26.25 inches long and 10.63 wide at its widest end (see a drawing of the light globe that is included in Exhibit P to the City's cross motion). A typical light globe weighs 10 to 15 pounds (see Pravin Dedania tr at 21).

Footnote 2:The exterior of the light globe consisted of the upper case and the lower case. The upper case was attached to the cross-arm of the streetlight by a clamp with nuts and bolts. The lower case was attached to the upper case by a latch in front and a hinge in the back. Here, the entire light globe fell off the streetlight.

Footnote 3:The DOT's Deputy Chief Electrical Inspector George Bermudez testified (at page 31 of his deposition) that a single clamp secured the light globe to the cross-arm. In contrast, the DOT's engineering supervisor Margaret Riskalla testified that she believed that there were two clamps securing the light globe to the cross-arm (see page 23 of her testimony stating, "[i]n 2004 that's probably the old version [of the light globe] and usually it is attached with two clamps.").

Footnote 4:The streetlight base was rated to withstand vibration at 3g (or three times of acceleration due to gravity). The streetlight base was not rated for mechanical impacts (see George Bermudez tr at 59, lines 3-9; 104, line 16). In his pretrial testimony, Mr. Bermudez specifically referred to a force of vibration, rather than to a mechanical force (see George Bermudez tr at 104-105).

Footnote 5:The serious injury threshold does not apply to this action. Under Insurance Law § 5104 (a), in an action by one "covered person" against another "covered person," the claimant cannot recover for non-economic injury unless he or she has sustained a serious injury (see Caruana v Oswego County Board of Coop. Ed. Serv., 26 AD3d 857, 858 [4th Dept 2006]). A "covered person" is defined in Insurance Law § 5102 (j) to include "any owner, operator or occupant of, a motor vehicle." The term "motor vehicle," as defined in Vehicle & Traffic Law § 311 (2), excludes a "self-propelled caterpillar or crawler-type equipment while being operated on the contract site." Here, the excavator, a crawler-type equipment that was operated on private property, did not qualify as a motor vehicle. This lawsuit, therefore, is not an action between "covered persons" as no defendant was an owner, operator, or occupant of a "motor vehicle" at the time of the accident (see Titone v Lufthansa Cargo AG, 2011 WL 7116060, 2011 NY Slip Op 33558[U] [Sup Ct, Suffolk County 2011]; Mangra v China Airlines, Ltd., 7 Misc 3d 499, 502 [Civ Ct, Queens County 2005]).

Footnote 6:The City's affirmative defense of governmental immunity was withdrawn by order dated Aug. 18, 2006.

Footnote 7:The First Department's decision in Rivera v City of New York, 73 AD3d 413 (2010), is inapposite. In Rivera, a note of issue remained in place, while the case was struck from the trial calendar. In fact, when the case was struck from the trial calendar, the time to move for summary judgment had already expired. The plaintiff then moved to restore, and the defendant cross-moved for summary judgment. The Rivera court rejected the defendant's argument that the time limit for seeking summary judgment does not apply to cases that have been struck from the trial calendar. Unlike Rivera, a note of issue was vacated in this case.

Footnote 8:The Second Department's decision in Schreiber-Cross v State of New York, 57 AD3d 881(2008), as cited by Adams and Alisa, did not involve a note of issue that had been vacated and, therefore, is irrelevant to the facts of this case.

Footnote 9:Alisa has not offered any excuse for not producing these photographs to plaintiff.

Footnote 10:In this regard, the Court notes that former § 27-1024 (b) of the Building Code required the use of a flagman when "dangerous operations, such as blasting," could affect the areas open to use by persons other than workmen.

Footnote 11:The Court of Appeals' decision in Mordkofsky expressly rejected the Fourth Department's decision in Kelly v Canino, 156 AD2d 948 (1989), on which plaintiff relies. In Kelly, the court allowed a Labor Law claim to a church-goer who, in his search for his pastor who dubbed as a contractor at a construction site, was injured in a building under construction. Another Fourth Department decision, cited by plaintiff, Vallina v Wright & Kremers, Inc., 7 AD2d 101 (1958), concerned an injured worker, rather than a bystander, and thus has no relevance to the facts of this case. Likewise, another Fourth Department decision, Tilkins v City of Niagara Falls, 52 AD2d 306 (1976), cited by plaintiff, also concerned an injured worker.

Footnote 12:For the avoidance of doubt, the Court notes that plaintiff's claim under former § 27-1024 (b) of the Building Code, which mandates the use of a flagman when "dangerous operations, such as blasting," are performed, remains undisturbed.

Footnote 13:In addition, plaintiff relies on (a) former § 27-1009 (a) of the Building Code, which required that contractors/subcontractors safeguard public and property affected by construction operations, and (b) former § 27-1024 (b) of the Building Code, which required the use of a flagman when dangerous operations, such as blasting,' could affect the areas open to use by persons other than workmen. Assuming, without deciding, that either or both of these provisions were violated, that would only constitute evidence of negligence but would not amount to negligence per se, inasmuch as these provisions do not have the legal effect of a state statute (see Elliot v City of New York, 95 NY2d 730, 734 [2001]).

Footnote 14:Hylan's superintendent testified that during his 14-year employment with Hylan, he was not aware of a single instance of its maintenance crew being denied access to the pole at the location at issue (see James Owen tr at 52-54).

Footnote 15:Vibration forces are not equivalent to mechanical forces. A vibration force of 3g, which was the upper limit of what the streetlight at issue could withstand, is not indicative of how much of a mechanical force it could resist.

Footnote 16:The only recognized exceptions to the prior written notice requirement involve situations in which "either the municipality created the defect through an affirmative act of negligence, or a special use' confers a special benefit upon the municipality" (De La Reguera v City of Mount Vernon, 74 AD3d 1127, 1127 [2d Dept 2010]). Neither of these exceptions has been alleged or argued by plaintiff.

Footnote 17:Administrative Code § 7-201 (c) (1) (a) defines the term "street" to "include the curbstone, an avenue, underpass, road, alley, lane, boulevard, concourse, parkway . . . " (emphasis added).

Footnote 18:See City's Cross Motion, Exhibit P, the City/Hylan contract, Detail Specifications, General Conditions, art. VI. (Work Orders and Repairs), ¶ A).

Footnote 19:In this regard, the following colloquy at pages 36-37 of the pretrial deposition of Hylan's superintendent James Owen is pertinent:

"Q. With respect to . . . the replacement of the lamp [in the light globe of the subject streetlight], was there any responsibility for Hylan to inspect the entire housing unit of the [light globe,] including the two brackets that were used to secure the . . . [cross-]arm to it?

* * *

A. No. . . . We went to replace the lamp. We would replace the lamp, and as long as the lamp lit up and we didn't physically see any other problem, we wouldn't go any further than that" (emphasis added).

Footnote 20:General Conditions, art. V.1, page II-3, provide that the "inspection . . . will concern itself with defects listed in Sect. III, of the General Conditions . . . ." General Conditions, art. III (c), page II-2, included defective light globes. Under the contract, Hylan was responsible for furnishing all light globes. A copy of the City/Hylan contract is annexed as Exhibit P to the City's cross motion.

Footnote 21:As Hylan's superintendent James Owen testified (at page 41 of his deposition):

"If [the cross-arm without a cobrahead,' i.e., the light globe] was observed by the men performing the route, they would report it as cobrahead missing' and replace the cobrahead and rewire it."

Footnote 22:See Hylan's cross motion, Exhibit L, Streetlight Contractor Work Order Repair History. This is explained at pages 21-22 of James Owen's pretrial testimony.

Footnote 23:Specifically, the City requested item 26 (b), which is to "[f]urnish and install a stainless steel banding . . ." in a transformer room or control room. For a copy of a citizen complaint, see the City's cross motion, Exhibit L, and, specifically, the page with the legend MSG# 3423182 in the upper left-hand corner. For a copy of the description of item 26 (b), see City's cross motion, Exhibit P, Part II, page 67. This is further explained at pages 20-21 of the pretrial testimony of Margie Jackson, a court activity coordinator at the DOT's Division of Street Lighting.

Footnote 24:For a copy of the work performed, see the City's cross motion, Exhibit L, and, specifically, the page with the legend MSG# 3641022 in the upper left-hand corner. This is further explained at pages 25-26 of Margie Jackson's pretrial testimony.

Footnote 25:For a copy of the work performed, see the City's cross motion, Exhibit L, and, specifically, the page with the legend MSG# 3641195 in the upper left-hand corner. This is further explained at page 28 of Margie Jackson's pretrial testimony.

Footnote 26:For a copy of the work performed, see the City's cross motion, Exhibit L, and, specifically, the page with the legend MSG# 3645530 in the upper left-hand corner. This is further explained at pages 30-31 of Margie Jackson's pretrial testimony.

Footnote 27:An excavator, a heavy bulldozer, and a bobcat vehicle were on the project site at the time of plaintiff's accident (see Daily Report, No. 13, dated July 9, 2004, prepared by Alisa, annexed as Exhibit 6 to Plaintiff's Opposition to Adams/Alisa's motion).

Footnote 28:See Detail Specifications, General Conditions, art. IV (Goals), page II-3.

Footnote 29:See Detail Specifications, General Conditions, art. V.1, page II-3 (Patrolling and Patrol Performance); art. III (Items of Repairs), item (c) of art. III, and the second paragraph of art. III, page II-2.

Footnote 30:The Site Safety Logistics and Plan; Excavation/Foundation and Superstructure, prepared by an architect and filed with the City to obtain excavation and construction permits, omitted the subject streetlight. The parties do not raise, and the Court does not address, the significance of this omission.

Footnote 31:For the sake of completeness, the Court rejects plaintiff's argument that Alisa contractually "agreed to assume full responsibility' for the performance of the construction work" (Plaintiff's Opposition to Adams/Alisa's motion, ¶ 30, pages 19-20). Plaintiff's quote from the contract is out of context. The full sentence from which this quote is taken exculpates Adams vis-a-vis Alisa for any discrepancies between the construction plans and the actual field conditions. It reads in full, as follows: "GENERAL CONTRACTOR [Alisa] agrees to assume full responsibility for the accuracy of all lines, levels, and measurements and their relations to benchmarks, property lines, reference lines and the work of the OWNER [Adams] or other contractors" (Construction Contract Agreement, dated June 11, 2004, at 2, annexed as Exhibit 5 to Plaintiff's Opposition to Adams/Alisa's motion).