Gilmore v City of New York

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Gilmore v City of New York 2014 NY Slip Op 33640(U) December 18, 2014 Supreme Court, New York County Docket Number: 104095/2011 Judge: Frank P. Nervo 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] SUPREME COURT OF THE STATE OF NEW YORK ~NEW YORK COUNTY FRANK P. NERVO PRESENT: PART~ Justice Supreme Court Justice Index Number : 104095/2011 GILMORE, YVONNE MOTION DATE _ _ __ vs THE CITY OF NEW YORK MOTION SEQ. NO. Sequence Number : 002 OQ~ SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits ~ IJ-6.·'tt*'~ (Be,~ ~oz Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ bJ!":'t=.!h-: -- I No(s). _ _ _ _ _ __ I No(s). _ _2- _ ____ 3 I No(s). -)'...,..< ___ w 0 j:: FILED U') ., ::::> e Q DEC 2 2 2014 w 0::: 0::: w IL w 0::: >- ..:.:. ..J ~ ..J z NEW YORK ... · _f.t~r:v Ctg;RJ<'S OFflP< ; ..~ ::: -d ::::> 0 IL f U') t; 0::: L5 w g; C> wz 0::: - ~ ..J ~ w "" ..Jo <C IL 0 z w - t- 0 :c i- 0::: ~o """ _c&rrwt.-~...;::;..-----"---'' HON. FRANK P. NER\IO IL 1. CHECK ONE: ..................................................................... D CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: °3GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 '2f.NON-FINAL DISPOSITION DENIED 0 0 0 GRANTED IN PART 0 SETTLE ORDER DO NOT POST J.S.C. OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] - ~~' ·; i ~ ~~ , ./ I.'.· ......... [* 3] . - SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 62 ------------------------------------------------------------------------)( Index Number: YVONNE GILMORE, Plaintiff, 104095/2011 -againstDecision & Order THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF TRANSPORTATION and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Fl LED Defendants. DEC 2 2 2014 -------------------------------------------------------------------------)( FRANK P. NERVO, J: NEW YORK OOUN'rrOL.EAK'S OFFf.CI= I :.1.~.':.·.·-~ Motion for summary judgment by defendant City of New York (City) is granted. Plaintiff alleges negligence by defendant City in its ownership and maintenance of the crosswalk of East 86th Street at Third Avenue which caused her to fall and be injured on May 27, 2010, premised upon a number of alternate factual and legal theories: I. Construction debris in the crosswalk caused her to fall; or II. There was a hole in the pavement which caused her fall; or III. The defendant City created a dangerous condition in the vicinity of and around a water access gate which caused her fall; or IV. The defendant City failed to monitor the hardware and surrounding area abutting a water gate box resulting in the presence of uneven pavement which caused her to fall. [* 4] With respect to her theory of negligent maintenance and the defendant City's sufferance of a hole or uneven condition on the pavement, plaintiff relies upon a Big Apple map, undated, to establish the requisite notice requirement of Administrative Code §7-20l(c)(2). While that Big Apple map indicates a number of defects warranting the attention of defendant City, it does not provide City with notice of any pavement defect such as alleged to have caused plaintiffs fall. The undated Big Apple map provides notice, at best, of a broken or uneven curb in the vicinity of the crosswalk; thus, the information on the map does not give notice of plaintiffs claim that she fell five to ten feet north of the southeast comer, as that distance is undoubtedly measured or estimated from the curb noted to be broken or uneven. As to plaintiffs alternate theory that City's liability arises from it having caused and created a dangerous condition in the near vicinity of and around a water gate, plaintiff fails to provide any evidence in admissible form demonstrating any basis for such liability. Indeed, examination of plaintiffs testimony of January 18, 2011 reveals her initial attribution of her fall to pavement that "wasn't even" and the presence of" ...alot of debris on the roadway" (page 14 lines 14-15) which she attributed to "a lot of construction or whatever they were doing" (page 14 lines 19-20) and subsequently, on suggestion of her counsel, to a "hole" (page 21 lines 18-19) which hole is then identiRed by a photograph, referred to as Exhibit A during the course of that testimony, demonstrating a hole in close proximity to this water gate. In any event, debris is a transitory condition for which defendant City may not be held responsible and, as hereinbefore noted, plaintiff submits no evidence of prior written notice of a hole, or any pavement defect whatsoever, in the vicinity of her fall five to ten feet north of the southeast comer of the intersection. Plaintiffs further theory that defendant City is liable for having failed to comply with a duty to monitor hardware such as water gates, and the surrounding area, is without statutory basis and, in any event, any non-compliance would not serve to vitiate the notice requirements of Administrative Code §7-201(c)(2). Plaintiffs cited authority in support of [* 5] this theory involve locations other than streets or sidewalks or parties not protected by the notice requirements of Administrative Code §7-201(c)(2). The remainder of plaintiffs claims against defendants New York City Department of Environmental Protection and New York City Department of Transportation must be dismissed, as these are not independent agencies subject to suit. Fl LED It is therefore DEC 2 2 2014 I ! j NEW YORK COUNTY CLERK'S OFFiCP I f 0 RD ERED defendant City's motion for summary judgr.n.ent i' granted, and all claims and cross-claims against City are hereby dismissed, and it is further ORDERED all claims and cross claims asserted against defendants NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION and NEW YORK CITY DEPARTMENT OF TRANSPORTAION are dismissed with prejudice, as these are not independent agencies subject to suit, and it is further 0 RD ERED the Clerk of the Trial Support Office and the Clerk of the Motion Support Office shall mark their records to note these dismissals, randomly reassign this matter to a non-City Part of this Court, and enter judgment accordingly. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. New York, New York December 18, 2014 ENTER: ~ FRANK P. NERVO, JSC

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