Aviles v City of New York
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Aviles v City of New York 2014 NY Slip Op 33236(U) January 23, 2014 Supreme Court, Bronx County Docket Number: 304508/11 Judge: Mitchell J. Danziger Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. - [* 1] FILED Jan 27 2014 Bronx County Clerk SUPREME COURT OF THE STATE 0F NEW YORK COUNTY OF BRONX ---~-----------------------~--------------x PEDRO AVILES, DECISION AND ORDER Plaintiff(s), Index No: 304508/11 - against THE CITY OF NEW YORK, Defendant ( s) . ----------------------------------------x In this action for the negligent maintenance of the public roadway, defendant THE CITY OF NEW YORK (The City) moves for an order, inter alia, granting i.t summary judgment thereby dismissing the complaint. The City avers that with regard to the roadway defect alleged to have caused plaintiff's accident, it had no prior written notice and therefore it cannot be liable for the accident and injuries claimed. The instant motion is unopposed. For the reasons that follow hereinafter, the City's motion is granted, without opposition and on default. The instant action is for personal injuries allegedly sustained by plaintiff on Deoember 3, 2010 on the public roadway located on Third Avenue, between East 153rct Street and Boston Road. Plaintiff alleges that the C~ty failed to maintained the public roadway in a reasonably safe ¢ondition and that he was injured as a result. Page 1 of 6 [* 2] FILED Jan 27 2014 Bronx County Clerk The proponent of a motion: for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely bY' pointing to gaps in plaintiff's proof (Mondello v Distefano, 16 AD3d ~37, 638 [2d Dept 2005); Peskin v New York City Transit Authority, 304 AD2:d 634, 634 [2d Dept 2003)). Once movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce· sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562) . Pursuant to section ~-201 (c) (2) of the New Administrative Code, No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of a!ily street, highway, bridge, wharf, c111lvert, sidewalk or crosswalk, or any part or portion of any of the foregoipg including any encumbrances ther¢on or attachments thereto, being out. of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or depa;rtment authorized by the commissioner to receive such notice, Page 2 of 6 York City [* 3] FILED Jan 27 2014 Bronx County Clerk or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsaJe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe. Accordingly, generally, a municipal defendant bears no liability under a defect falling within the ambit of section 7-201 (c) "unless the injured party can demons~rate that a municipality failed or neglected to remedy a defect within a reasonable time after receipt of written notice" (Poirier v City of Schenectady, 85 NY2d 310, 313 The exception to the foregoing is where it is claimed (1995]). that the municipal defendant affirmatively created the condition alleged to have caused plaintiff's accident, in which case, the absence of prior written notice is no barrier to liability (Elstein v City of New York, 209 AD2d 186, 186-187 [1st Dept 1994]; Bisulco v City of New 186 A.Ib.2d York, 85, 85 [1st Dept 1992]). A plaintiff seeking to proceed on a theory that the municipality created the defect ' alleged, however, must establish that the defective condition was defectively installed so as to bring the defect out the ambit of ordina;ry wear and tear (Yarborough v City of New York, 10 NY3d 726, 728 NY3d 888, 890 (2007]). ~2008]; Oboler v City of New York, 8 Stated differently, Page 3 of 6 the proponent of a -Eu Jan 2) 2814 Bronx County Clerk [* 4] claim that the municipal defendant created the dangerous condition which caused plaintiff's accident must establish that work performed by the municipal defendant was negligently performed such that it "immediately result[ed] in the existence of [the] dangerous condition" alleged (':(arborough at 728 [internal quotation marks omitted]). Here, at his deposition, plaintiff testified that on December 3, 2010 he tripped and fell on a roadway located on third Road in Bronx County. located thereat. Compliance Aven~e, round, uneven portion of the near its intersection with Boston Specifically, plaintiff fell near a bus stop Pursuant Conference to this Court's Preliminary and Orders, the City's Department of Transportation (DOT) performed several searches for records related the location of plaintiff's qCcident. performed for Avenue, records Specifically, a search was related to the roadway located on Third between East 163rct Street and Boston Road. performed was for a The search period of two years prior to the date of plaintiff's accident and included a search for permits, cut forms, repair orders, contracts, complaints, and Big Apple Maps. According to violations, milling/resurfacing records, Paul Cividanes (Cividanes), ~paralegal employed by DOT, the search revealed the existence of eight permits, two Office of Construction Mitigation and Coordination files, one Corrective Action request, one Notice of Violation, 27 inspection reports, 12 maintenance and P1age 4 of 6 [* 5] ronx County Clerk repair orders, eight complaints and 11 gangsheets. potholes, closed. With respect to all pothole defects for the roadway in question were A review of the records referred to by Cividanes evinces that most recent repair to a pothole at the location alleged herein was performed on June 14, 2010 .. Based on the foregoing, the City has established prima facie entitlement to summary judgment insofar as it has demonstrated that it had no prior written notice of the defect alleged by plaintiff within 15 days of his accident. Of all the documents unearthed by the City's search, the only documents which confer the requisite prior written notice records evincing are the non-citizen complaint and repair the existen8e of a pothole at the location where plaintiff alleges to have fallen. This is because it is well settled that neither permits (Levbarg v City of New York, 282 AD2d 239, 242 [1st Dept 2011]), no:r citizen complaints, even if reduced to writing (Kapilevich v City of New York, 103 AD3d 548, 549 [1st Dept 2013); Lopez v Gonzalez,. 44 AD3d 1012, 1012 [2d Dept. 2007)), constitute prior written notice of a defect under section 7-201 of the New York City Administrative Code. ci tizen complaint and repair orders location of plaintiff's accident, most With regard to the nonregarding potholes at the the City's records evince the recent complaint regarding a pothole prior to plaintiff's accident was repaired on June 14, 2010, months before plaintiff's accident. Between the tirile the City performed the lf>age 5 of 6 repair and [* 6] FILED Jan 27 2014 Bronx County Clerk plaihtiff's fall, there is no evidence that the City received prior written notice of another pothole (Lopez defendant granted summary judgment because, at 1013 inter alia, [Municipal while it had prior written notice of the condition alleged, it had repaired it and no further written notice existed at least 15 days prior to plaintiff's accident]). Accordingly, because [w]here the City establishes that it lacked prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule-that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality at (Yarborough 726), here the City has established prima facie entitlement to summary unopposed, no City's favor. ORDERED prejudice. issues judg~ent. of fat:t Because the instant motion is preclude summary judgment in the It is hereby that plaintiff's complaint be dismissed, with It is further ORDERED that the City s~rve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof Dated : January 23, 2014 Bronx, New York 11 J. Danzi er, ASCJ Page 6 of 6
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