Cassidy v City of New York

[*1] Cassidy v City of New York 2013 NY Slip Op 51161(U) Decided on July 15, 2013 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2013
Supreme Court, Queens County

Michael Cassidy, Plaintiff,

against

City of New York and New York City Department of Transportation, Defendants.



18947/07



Attorneys: Michael A. Cardozo, Esq.

Corporation Counsel

by Jared J. Hatcliffe, Esq.

Assistant Corporation Counsel

for movants/defendants The City of New York and The New York City Department of Transportation

William P. Hepner, Esq,

of Wingate, Russotti, Shapiro & Halperin, LLP

for respondent/plaintiff Michael Cassidy

Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 4 read on this motion

Notice of Motion1 - 2 [*2]

Affirmation in Opposition3

Reply Affirmation4

Defendants, the City of New York and the New York City Department of Transportation, move inter alia for summary judgment, dismissing plaintiff's complaint as asserted against them.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on October 12, 2006 as a result of a motor vehicle accident allegedly due to flooding on the Jackie Robinson Parkway, in the County of Queens, City and State of New York. Plaintiff's original Notice of Claim stated that the that the accident took place on the Jackie Robinson Parkway, approximately 50 feet east of Myrtle Avenue, but an Amended Notice of Claim was served on July 26, 2007, changing the location to the Jackie Robinson Parkway, approximately 50 feet west of the Forest Park Drive Exit.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case" (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Movants contend they are entitled to judgment on the ground that it did not have actual or constructive notice of the defective condition complained of (See generally Beyer v. City of New York, 141 A.D. 679 [2d Dept. 1910]). In addition, movant contends that because there was no notice of the defective condition, plaintiff's claim that the City was negligent in failing to conduct a study to examine the defective condition must also fail (See generally Hough v. State, 283 AD2d 736 [3d Dept. 1994]).

In support of these contentions movants submit inter alia the affidavit and deposition testimony of Bruce Robinson, Principal Administrative Associate II with the New York City Department of Environmental Protection. Robinson stated that a search for sewer and water records at the intersection of the Jackie Robinson Parkway and Forest Park Drive for the period of two years prior to plaintiff's accident reveled only one complaint, received shortly after plaintiff's accident, reporting flooding in that location. A search for sewer and water records at the intersection of the [*3]Jackie Robinson Parkway and Myrtle Avenue revealed records containing reports of flooding at that location on October 12, 2005, November 30, 2005, June 24, 2006, July 21, 2006 and October 12, 2006.

While movants' attorney's affirmation states that the records relating to the intersection of the Jackie Robinson Parkway and Myrtle Avenue are inapplicable to this action and were only produced because that was the accident location stated in the original notice of claim, the date of the search results is May 16, 2008, nearly ten months after the amended notice of claim was served.

Movants have failed to submit any evidence regarding the distance between the two locations. The ariel photographs submitted by plaintiff in opposition purport to depict both locations, but also do not provide any information as to the distance between those locations. As such, there remain issues of fact regarding whether flooding at one location would necessarily result in flooding at the other location or would, in the exercise of reasonable care, require an inspection of the other location such that the multiple notices of flooding at the intersection of the Jackie Robinson Parkway and Myrtle Avenue provided defendant's with actual or constructive notice to defendants.

Accordingly, defendant's motion is granted, without opposition, to the extent that plaintiff's complaint is dismissed as asserted against the New York City Department of Transportation, and is denied in all other respects.

July 15, 2013 ____________________

J.S.C.