Tortorici v City of New York

[*1] Tortorici v City of New York 2013 NY Slip Op 50800(U) Decided on May 20, 2013 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 20, 2013
Supreme Court, Richmond County

Lucy Tortorici, Plaintiff,

against

The City of New York, RONALD SCARABAGGIO and DEBRA Y. SCARAGAGGIO, Defendants.



100142/2008

Thomas P. Aliotta, J.

The following papers numbered 1 to 5 were fully submitted on the 14th day of

March, 2013.

Papers Numbered

Notice of Motion for Summary Judgment by Defendant

The City of New York, with Supporting Papers

(dated November 29, 2012).................................................................................. 1

Plaintiffs' Affirmation in Opposition

(dated January 11, 2013)....................................................................................... 2

Affirmation in Opposition by Defendants

Ronald Scarabaggio and Debra Y. Scarabaggio

(dated February 27, 2013)..................................................................................... 3

Reply Affirmation by Defendant The City of New York

(dated February 4, 2013)....................................................................................... 4 [*2]

Reply Affirmation by Defendant The City of New York

(dated February 4, 2013)........................................................................................ 5

Upon the foregoing papers, the motion of defendant The City of New York (hereinafter, the "City") to dismiss the complaint as against it, or in the alternative, for summary judgment is granted.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Lucy Tortorici on November 5, 2007, when she tripped and fell on a raised sidewalk flag abutting certain residential premises owned by defendants/third-party plaintiffs Ronald Scarabaggio and Debra Y. Scarabaggio (hereinafter, the "Scarabaggios"), located at 19 Minturn Avenue, Staten Island, New York. It is undisputed that in July 2004, the Scarabaggios had hired third-party defendants M & B Construction Inc. and M & B Concrete (hereinafter, "M & B") to replace the sidewalk in front of their residence.

Insofar as is relevant, Mr. Scarabaggio testified at his deposition that in August of 2007, he "noticed" that a tree abutting the sidewalk in front of his residence had caused a portion thereof to become raised and/or uneven, and that when he called the City's "311" hotline to report the condition, he was informed that "the Parks Department [would] look at it". Mr. Scarabaggio further testified that he subsequently received "some paperwork in his mailbox" from the City's Parks & Recreation "Trees and Sidewalks Program", dated October 31, 2007, which referenced Mr. Scarabaggio's "311 Request No.", and indicated that a Parks Department forester by the name of A. Morris had inspected the subject tree and "problem sidewalk" in front of 19 Minturn Avenue, and had assigned it a "Priority Rating" of 51 out of 100. Plaintiff's accident is alleged to have occurred five days after this purported inspection of the sidewalk defect by the Parks Department.

Relying upon the date of this Inspection Notification and the related records of the Parks Department dated October 23, 2007 pertaining to defendant Scarabaggio's "311" request, the City moves to dismiss the complaint and for summary judgment on the grounds that it is not liable for any injuries allegedly sustained by plaintiff as a result of this sidewalk condition since the incident occurred within the 15-day grace period afforded to the City by New York City Administrative Code §7-201(c). In addition, the City maintains that it had no prior written notice of the alleged sidewalk defect as evidenced by the affidavit of Eric Ruiz, an employee of the Department of Transportation (hereinafter, "DOT"), who attests that he conducted a search for records relating to the sidewalk in question (e.g. permits, applications, corrective action requests, inspections, maintenance and repair orders, sidewalk violations, contracts, complaints, resurfacing/milling records and Big Apple Maps) for a period of two years preceding the date of the accident, and found nothing on file except a Big Apple Map received by the DOT on February 2, 2004, some five months prior to the defendant homeowners' replacement of the sidewalk in July 2004.

In the alternative, the City argues that plaintiff conceded in her deposition testimony that the height differential between the concrete sections of the subject sidewalk was merely "a half inch to one inch", and that any such defect was trivial in [*3]nature and cannot furnish a basis for liability.

In the opinion of this Court, the foregoing evidence is sufficient to demonstrate the City's prima facie entitlement to judgment as a matter of law. In opposition, plaintiff has failed to raise a triable issue of fact.

In this regard, plaintiff's attempt to raise a triable issue of fact pertaining to "notice" based on the deposition testimony of Mr. Scarabaggio relating to the timing of his 311 complaint, some two months prior to plaintiff's accident, is misguided. To the extent relevant, the City's witness, Brian Haley, a forester employed by the New York City Parks Department, testified at his deposition that "the actual physical [311] phone call" would not have gone "directly to [his] office", and that his records indicate that the Staten Island Forestry Office did not physically receive notification of Mr. Scarabaggio's sidewalk complaint from the "3-1-1 Call Center" until October 23, 2007, i.e., 13 days prior to plaintiff's accident. Thus, on any view of the facts, there is not a scintilla of evidence before this Court supportive of plaintiff's position that the telephone call from Mr. Scarabaggio generated a "written acknowledgment" of the unsafe condition by the City at any time prior to October 23, 2007 (Administrative Code of the City of New York §7-201[c][2]; see Bruni v City of New York, 2 NY3d 319, 326-327). [FN1] Thus, this case presents no question of fact regarding prior written notice which precludes summary judgment (see Ramos v City of New York, 55 AD3d 896; see generally Brown v City of New York, 90 AD3d 591 [factual disputes regarding prior written notice should be resolved by a jury]).

As for plaintiff's contention that this summary judgment motion is premature owing to the City's failure to comply with certain discovery demands for the records of all "311" calls received in August of 2007, the present determination renders the City's failure to disclose the presumed record of Mr. Scarabaggio's "311" call irrelevant to the issue of prior "written notice" within the meaning of section 7-201(c)(2) of the Administrative Code of the City of New York.

Accordingly, it is

ORDERED, that the motion of defendant The City of New York for summary judgment is granted, and the complaint and any cross-claims as against this defendant are hereby severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R, [*4]

Dated: May 20, 2013___/s/____________________________

HON. Thomas P. Aliotta

J.S.C. Footnotes

Footnote 1: Although this Court has previously determined that certain writings generated by the City in response to consistent complaints can constitute the "written acknowledgment" of a defect for purposes of section 7-201 of the Administrative Code of the City of New York (Avellino v City of New York, 33 Misc 3d 1233[A][2011]; see Miranda v City of New York, 29 Misc 3d 1220[A][S Ct NY Co 2010]), neither Avellino nor any controlling authority holds that the "logged entry" of a telephone call to the "3-1-1 call center" constitutes a prior written acknowledgment.