Anthony Deluca v City of New York

[*1] Anthony Deluca v City of New York 2015 NY Slip Op 51021(U) Decided on July 9, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2015
Supreme Court, Queens County

Anthony Deluca, Plaintiff,

against

The City of New York, Defendant.



19701/13



Jonathan J. Panarella, Esq.Krenstel & Guzman, LLP(Attorney for Plaintiff)17 Battery Place, Suite 604New York, NY 10004

George DellaRatta, Esq.Ass. Corporation Counsel(Attorney for Defendant)89-17 Sutphin Blvd., Jamaica, NY 11435
Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 4 read on this motion

Notice of Motion1 - 2

Affirmation in Opposition3

Reply Affirmation4

Defendant, the City of New York (hereinafter "City") moves inter alia for summary judgment, dismissing plaintiff's complaint as asserted against it.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on November 5, 2012, when plaintiff's motor vehicle struck a tree that had fallen across the roadway of 180th Street, approximately fifty yards south of its intersection with 112th Avenue, in the County of Queens, City and State of New York.

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 any 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]).

Pursuant to New York City Administrative Code § 7-201[c][2], in order maintain an action against the City for personal injuries sustained as a result of a street "being out of repair, unsafe, dangerous or obstructed," a plaintiff must establish that the City had prior written notice of the condition at least fifteen (15) days prior to the date of the accident (See Katz v. City of New York, 87 NY2d 241, 243 [1995]).

Plaintiff admits that the subject tree was caused to fall as a result of "Superstorm Sandy" and that the City did not have prior written notice of the subject condition more than fifteen days prior to the accident.

Plaintiff contends that the City may still be liable for failing to warn of the subject condition despite the lack of notice [*2]because the fifteen day requirement only applies to removal or repairing of a defective condition.

Notably, plaintiff fails to cite any law to support this claim. Indeed, Administrative Code § 7-201[c][2] explicitly includes the duty to make the area "reasonably safe" by other means within the fifteen day prior written notice requirement.

It is well settled that "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 556, 562 [1980]).

Plaintiff also claims that defendants may be held liable despite their lack of notice of the subject condition for at least fifteen days prior to the accident because defendants owed him a special duty.

However, as plaintiff never raised this theory of liability in either his notice of claim or summons and complaint, he cannot do so now in opposition to the defendant's summary judgment motion (See Mezger v. Wyndham Homes, Inc., 81 AD3d 795, 796 [2d Dept. 2011]; Semprini v. Vill. of Southampton, 48 AD3d 543, 544 [2d Dept. 2008]; Abaloa v. Flower Hosp., 44 AD3d 522 [1st Dept. 2007]).

Plaintiff fails to demonstrate the existence of a special duty in any event.

While plaintiff claims that defendant owed him a special duty based upon the Manual on Uniform Traffic Control Devices (hereinafter "MUTCD"), these provisions are designed to protect "all members of the general public similarly situated" and do not create a duty to particular individuals (See Metz v. State of New York, 20 NY3d 175, 176 [2012]; see also Ferreira v. Cellco Partnership, 111 AD3d 777, 779 [2d Dept. 2013]). Plaintiff likewise fails to allege that the MUTCD actually authorizes a private right of action (See Abraham v. City of New York, 39 AD3d 21, 25 [2d Dept. 2007]).

Plaintiff's claim that the City owed him a special duty by assuming "positive direction and control in the face of a known, blatant and dangerous safety violation" also fails due to the lack of any evidence to suggest that the City affirmatively acted to [*3]place plaintiff in harm's way (See Sutton v. City of New York, 119 AD3d 851, 852-53 [2d Dept. 2014]).

"The municipality's failure to act in the face of a hazard——even a blatantly dangerous one, such as a disabled car stalled in the middle of a highway on a moonless, foggy night——is insufficient, in and of itself, to establish a special relationship under this test" (Abraham, supra, at 28).

Accordingly, defendant's motion is granted, in its entirety, and plaintiff's complaint is dismissed.

July 9, 2015 ____________________

J.S.C.