Shehata v City of New York

[*1] Shehata v City of New York 2013 NY Slip Op 51775(U) Decided on September 30, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2013
Supreme Court, Kings County

Therese Shehata and EMILE SHEHATA, Plaintiffs,

against

The City of New York, CABLEVISION, CABLEVISION SYSTEMS OF NEW YORK CITY CORPORATION, CSC HOLDINGS, INC., PALM BEACH HOME FOR ADULTS, LLC and 2900 BRAGG STREET LLC, Defendants.



40958/07



Plaintiff Attorney: Joseph A. Deliso, Esq., 505 Court Street, Suite 4A, Brooklyn, NY 11209

Defendant Attorney: Gavin McCandlish, Esq., 30 W. 22nd Street, Suite 2E, New York, NY 10010

David I. Schmidt, J.

Upon the foregoing papers, defendants Cablevision Systems New York City Corporation (incorrectly sued herein as Cablevision and Cablevision Systems of New York City Corporation) and CSC Holdings, Inc. (collectively, Cablevision) move for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the action and any cross claims asserted against them. Co-defendants Palm Beach Home for Adults, LLC and 2900 Bragg Street, LLC (collectively, Palm Beach) also move for move for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the action and any cross claims asserted against them.

Background and Procedural History

On August 8, 2006, plaintiff Therese Shehata (plaintiff) tripped and fell on the sidewalk located next to Palm Beach on the corner of Bragg Street and Emmons Avenue in Brooklyn. The sidewalk flag where plaintiff tripped was depressed approximately one to two inches and was not level with the adjoining sidewalk flags. A Cablevision underground vault was located under the depressed sidewalk flag where plaintiff tripped. The cover of the vault was located approximately 25 inches from where she fell.

Plaintiff and her husband (suing for loss of consortium) commenced this action against the City of New York,[FN1] Cablevision and Palm Beach for injuries plaintiff suffered from the trip and fall. All of the defendants answered and after discovery was complete, Cablevision and Palm Beach filed their respective motions for summary judgment.

Discussion

Summary judgment may be granted only when it is clear that no factual issues warranting a trial exist (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

A.

In support of its motion for summary judgment, Cablevision argues that it is not liable for plaintiff's injuries because it is undisputed that the accident occurred more than 12 inches [*2]from its vault cover. Cablevision also argues that the statutory duty imposed on it by the Rules of the City of New York, Department of Transportation (34 RCNY) § 2-11 (e) (16) (ii), to maintain the sidewalk flag containing the vault three years after its instillation (the so-called guarantee period), expired in 2004, before the accident, which took place in 2006. Lastly, Cablevision contends that it did not create the height differential between the sidewalk flag and the adjoining sidewalk flags. In opposition, plaintiff argues that Cablevision's vault is under the entire sidewalk flag constituting a special use, and that Cablevision created the hazardous condition.

In general, if a defendant creates a hazardous condition it is liable for any accident that arises from the condition (see Walsh v Super Value, Inc., 76 AD3d 371, 375 [2011]). As to Cablevision's argument that it was not responsible for creating the height differential between the sidewalk flag containing its vault and the adjoining flags, Cablevision first notes that it approved the bill of its subcontractor who performed the installation of the vault and that the bill provided that the work was completed. However, the bill does not state that the sidewalk flag was appropriately restored. Further, Cablevision has not provided testimony from someone with actual knowledge regarding the installation or the post-installation inspection of the work done by the subcontractor. Cablevision next refers to the testimony of Cynthia Facey, who was produced for deposition by co-defendant Palm Beach. Ms. Facey testified that she never observed an unlevel condition in the sidewalk, and that the depressed sidewalk flag could only have existed for "a couple of weeks" prior to the accident. The bill and the testimony of Ms. Facey fail to establish a prima facie showing that Cablevision did not create the dangerous condition.

Cablevision also argues that it is not responsible for any defect that is more than 12 inches beyond the covering of the underground vault. 34 RCNY § 2-07 (b) (1) provides: "The owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware." Section (b) (2) provides: "The owners of covers or gratings shall replace or repair any cover or grating found to be defective and shall repair any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating." However, the 12-inch rule does not apply when the owner of the cover created the hazardous condition (see Ingles v City of New York, 309 AD2d 835, 835 [2003] ["The Rules do not limit a contractor's common-law liability for affirmative acts of negligence which result in the creation of a dangerous condition upon a public street or sidewalk"]). As stated above, Cablevision has not established that it did not create the hazardous condition.

Cablevision additionally argues that regardless of whether it created the condition, it had no responsibility to repair or maintain the sidewalk beyond three years after it installed the vault. Pursuant to 34 RCNY § 2-11 (e) (16) (ii) "[p]ermittees shall be responsible for permanent restoration and maintenance of street openings and excavations for a period of three years on unprotected streets, and up to five years on protected streets commencing on [*3]the restoration completion date. This period shall be the guarantee period." Relying on Humphreys v Veneziano (268 AD2d 461 [2001]), Paladino v Time Warner Cable of NY City (16 AD3d 646 [2005]) and Steel v City of New York (271 AD2d 435 [2000]), Cablevision avers that the guarantee period exonerates it from any responsibility for the sidewalk three years after the completion of the work.

Cablevision's position that the guarantee period exonerates it from liability is misplaced. The purpose of the rule is to impose an additional duty upon the actor performing the work to maintain the sidewalk for three years regardless of whether they have created a hazardous condition. The rule, as Cablevision argues, does not create, in essence, a three-year statute of limitations if the actor creates a hazardous condition. The case law cited by Cablevision supports this interpretation. For example, in Humphreys, the court stated that defendant established its prima facie entitlement to summary judgment and "plaintiffs offered only speculation that the [defendant's] work caused the allegedly defective condition" (268 AD2d at 268). The court, only after establishing that defendant did not cause the condition, determined that the work was completed prior to the three-year guarantee period (id.). Thus, the three-year stautory duty to maintain and repair the sidewalk, pursuant to the guarantee period, is unrelated to any hazardous condition that the installer of an underground vault may have created. In other words, § 2-11 (e) (16) (ii) creates a duty to maintain and repair the sidewalk regardless of whether the installation caused the defect. Accordingly, Cablevision's motion must be denied.

As for the argument that Cablevision is responsible for the entire sidewalk area above the vault, Palm Beach adopts this argument and it will be discussed more fully below.

B.

With respect to Palm Beach, plaintiff does not argue that it created the hazardous condition, but maintains that because the sidewalk in question abuts Palm Beach's property, Palm Beach is responsible for the upkeep of the sidewalk, pursuant to Administrative Code of the City of New York (Admin. Code) § 7-210. That section provides, in pertinent part that: "a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure [*4]to remove snow, ice, dirt or other material from the sidewalk."

Palm Beach, in its motion for summary judgment, first argues that it had no constructive notice of the hazardous condition and therefore cannot be held responsible. "A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected" (Abrams v Berelson, 94 AD3d 782, 784-785 [2012], lv dismissed 19 NY3d 949 [2012]). Whether the hazardous condition existed for a sufficient length of time is clearly a question of fact. Here, Ms. Facey, the witness for Palm Beach, testified that the condition could have existed for several weeks. Whether several weeks is a sufficient length of time for Palm Beach to have discovered and remedied the dangerous condition is an issue for the fact finder (see Bolloli v Waldbaum, Inc., 71 AD3d 618, 619-620 [2010]).

Palm Beach next argues that Cablevision created the condition, relieving it of liability. However, nothing in the Administrative Code or the case law cited by Palm Beach excuses it from its obligation to maintain the sidewalks abutting its property, regardless of whether it or another party created the condition. Furthermore, it is well-settled, in a slip and fall case, that a defendant may be held liable if it created the condition or if it was aware of the condition with sufficient time to correct it (see Gordon v American Museam of Natural History, 67 NY2d 836, 837 [1986]; Salazar v City of New York, 104 AD3d 931, 932 [2013]; Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629, 629 [2009]). As stated above, Palm Beach's awareness of the condition is a factual issue.

Palm Beach's more cogent argument is that even if Cablevision did not create the condition, Cablevision owned and had control over the sidewalk flag, which was above Cablevision's underground vault, and that Cablevision is therefore liable for its maintenance (see Breland v Bayridge Air Rights, Inc. (65 AD3d 559, 560 [2009]). However, 34 RCNY § 2-07 (b) (1) only places responsibility on the owner of an installation to maintain the grate or covering and the area 12 inches beyond the grate or covering (see Flynn v City of New York, 84 AD3d 1019, 1019 [2011], lv denied 17 NY3d 709 [2011]). It is undisputed that the accident occurred more than 12 inches from the covering of Cablevision's vault. There is no provision in the rule that the owner of an underground vault is responsible for maintaining the sidewalk above its vault. The plain language of Admin. Code § 7-210 makes clear that the owner of an underground vault is only responsible for maintaining the cover of the vault and an area 12 inches beyond the cover. The remaining area of sidewalk is the responsibility of the property owner (see Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013] ["Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used"] [internal citations and quotation marks omitted]). Therefore, Palm Beach cannot shift the burden of maintenance of the sidewalk flag onto Cablevision (cf. Flynn, 84 [*5]AD3d at 1019). Accordingly, it is

ORDERED that Cablevision's motion for summary judgment is denied; and it is further

ORDERED that Palm Beach's motion for summary judgment is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Plaintiffs' complaint against the City of New York was dismissed by a decision and order dated April 23, 2010 (Sherman, J.).