Lindenbaum v City of New York

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Lindenbaum v City of New York 2019 NY Slip Op 33443(U) November 15, 2019 Supreme Court, New York County Docket Number: 159992/2015 Judge: Verna Saunders Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/22/2019 11:19 AM NYSCEF DOC. NO. 75 INDEX NO. 159992/2015 RECEIVED NYSCEF: 11/22/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. VERNAL. SAUNDERS IASMOTIONS Justice ---------------------------------------------------------------------------------x DEBRA LINDENBAUM, INDEX NO. 159992/2015 MOTION SEQ. NO. _ _0_0_1;~0_0_2_ _ Plaintiff, - against- THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Defendants. DECISION+ ORDER ON MOTION ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 25, 26, 27, 28, 29, 30, 31, 32, 33,34,35,3~37,38,39,55,56,57,58,63,65,67 SUMMARY JUDGMENT were read on this motion to/for Plaintiff commenced this action to recover for personal injuries sustained from a trip and fall due to an allegedly defective condition located in the street/roadway on 75th Street between Second and Third A venue, New York, NY. 1 Specifically, plaintiff alleges tripping on "a hole approximately six inches from a manhole located in the parking lane" at that location. Defendants, the City of New York and New York City Department of Transportation (DOT), hereinafter collectively "City," now move pursuant to CPLR § 3212 seeking an order for summary judgment dismissing the complaint on the grounds that the City did not receive prior written notice of the condition and did not cause or create the condition. 2 The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. See, Alvarez v Prospect Hospital, 68 NY2d 320 [NY 1986] and Wine grad v New York University Medical Center, 64 NY2d 851 [1985]. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the eviqence submitted and the papers will be scrutinized carefully in a light most favorable to the nonmoving party. See Assafv Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]. In order to hold the City liable for injuries resulting from roadway defects, a plaintiff must demonstrate that the City received prior written notice of the subject condition. (See Admin Code of the City of New York§ 7-201(c)(2); Amabile v City of Buffalo, 93 NY2d 471 [1999].) The only recognized exceptions to the prior written notice requirement are where the City's actions caused or created the defect through an affirmative act of negligence or where the defect 1 2 See City's Exhibit H, (tr at 6 lines 6-9; at 8 lines 23-25). Motion Seq. No. 001. 15999212015 LINDENBAUM, DEBRA vs. CITY OF NEW YORK Motion No. 001 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 11/22/2019 11:19 AM NYSCEF DOC. NO. 75 INDEX NO. 159992/2015 RECEIVED NYSCEF: 11/22/2019 resulted from a special use by the municipality. (See Oboler v City ofNew York, 8 NY3d 889 [NY 2007], quoting Amabile, supra. In support of its motion, the City provides the affidavit of Omar Codling, a record searcher employed by DOT. Mr. Codling performed a roadway segment search which resulted in thirty-nine permits, twenty-eight hardcopy permits, twenty-eight applications, two notices of violation, sixty-three inspections, one maintenance and repair record, one gang sheet for roadway defects, and three Big Apple Maps. (See City's Exhibit/.) The City contends that none of the aforementioned search results show that the City had prior written notice of the defect alleged. The City asserts that the Big Apple Maps do not demonstrate prior written notice in that there are no markings to indicate a hole at the subject location and that the two violation notices, issued to Con Edison and Rigid Plumbing Contractors, Inc. respectively, were issued for locations that did not encompass the subject defect. (See City's Exhibit J.) Finally, the City also contends that it did not cause or create the condition as there were no permits issued by the City to any contractors to do work on behalf of the City. Id. In opposition, plaintiff maintains that the City has failed to put forth sufficient evidence to demonstrate that it lacked prior written notice of the defect that caused plaintiffs injury and that a question of fact as to the City's liability remains. Specifically, plaintiff argues that the City owns the property upon which plaintiff was injured and thus, the City is liable and further, the documents submitted in support of the City's motion contain specific references to the roadway at and around the manhole covers located at 75th Street between Second and Third Avenues. The Court finds that the City has made prima facie showing of entitlement to a summary determination which plaintiff has failed to refute. While it is undisputed that the City owns the roadway in which the alleged defect is located, ownership in and of itself is insufficient to prove liability as against the City pursuant to§ 7-201(c)(2) of the Administrative Code which requires written notice of the specific defect. Moreover, plaintiffs argument that records located during the DOT search raises a question of fact as to the City's liability as they reference the subject location is unavailing as the subject defect is not specifically referenced in said records. Additionally, defendant, Consolidated Edison Company of New York, Inc. (Con Edison) also moves the court seeking summary judgment. 3 Con Edison concedes that it owned the manhole cover and associated hardware adjacent to the subject defect but asserts that it, too, lacked prior notice of the defect and that it neither caused nor created same. Con Edison contends that on May 24, 2013, the manhole cover was inspected within the 5-year period required by the Public Service Commission4 and there was no defect found or basis for repair of the manhole and the surrounding area. Further, Con Edison also contends that it did not perform work in the subject location between the inspection date and the date of the plaintiffs accident and thus, could not have caused or created the condition. 3 Motion Seq. No. 002. Con Edison avers that the Public Service Commission mandates an inspection of underground electric distribution equipment and surrounding area every five 5 years. (See Exhibit L, Reply, Motion Seq. 002.) 4 159992/2015 LINDENBAUM, DEBRA vs. CITY OF NEW YORK Motion No. 001 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/22/2019 11:19 AM NYSCEF DOC. NO. 75 INDEX NO. 159992/2015 RECEIVED NYSCEF: 11/22/2019 Con Edison relies upon the testimony of Jennifer Grimm, formerly known as Jennifer Kim, who performed a record search for the roadway of East 75th Street between Second and Third Avenues dating two years prior to and including the date of the plaintiffs accident. This search revealed DOT permits obtained by Con Edison; opening tickets reflecting any excavation within a sidewalk and/or roadway; paving orders; Emergency Control System tickets noting complaint, hazards, or defects of any sort to Con Edison property; Corrective Action Requests (CARS); and notices of violations (NOVs) issued by the City. Con Edison maintains that none of the aforementioned search results involved work or complaints of a hazard in the area specified by plaintiff. Con Edison provides the affidavit of Jennifer Grimm attesting same. Specifically, Ms. Grimm asserts that the opening tickets, including tickets PS822046, PS583349, PS642940, PS642944, PS701127, and PS882812, and their associated paving orders, permits, CARS, NOVs, and emergency control tickets involved work performed on the sidewalk or on the south side of East 75th Street, which is opposite the location of plaintiffs accident. Con Edison also relies upon the testimony of Juan F. Rodriguez, a Con Edison Environmental Health and Safety Senior Specialist, who is responsible for supervising Con Edison employees and third-party contractors who inspect Con Edison roadway and underground facilities. Mr. Rodriguez testified concerning an Electric· Distribution Information System "EDIS" report dated May 24, 2013. The EDIS report was prepared in conjunction with a field inspection of a service box located at the subject location and denoted that there were no defects found within a foot of the manhole cover. (See EDIS report annexed as Exhibit B to plaintiffs opposition, Motion Seq. 002.) 5 In opposition, plaintiff asserts that Con Edison failed to adequately monitor and maintain the manhole and the twelve-inch surrounding area as required by 34 RCNY §2-07. Plaintiff contends that Con Edison's reliance on an inspection of the subject location two years prior to the date of the accident is erroneous as Con Edison had a continuous duty to maintain under 34 · RCNY §2-07. Further, plaintiff also contends that the obligations imposed by the Public Service Commission, to inspect every five years, do not subvert Con Edison's obligations to maintain under 34 RCNY §2-07 and an inspection closer to the date of the accident would have made the subject defect immediately apparent. Finally, plaintiff argues that issues of fact remain as to whether the field inspection performed on May 24, 2013 was sufficient. As Con Edison correctly points out, 34 RCNY §2-07 restricts Con Edison's obligations to defects that it created or of which it had prior notice. See DiSanza v City ofNew York, 47 AD3d 535 (1st Dept 2008). Con Edison has shown that it did not perform any work in the subject location; it did not receive a notification of defect from the May 24, 2013 inspection until the date of plaintiffs accident; and further, that Mr. Rodriguez clearly testified that the inspection included the twelve-inch surrounding area of the manhole cover in question. Plaintiffs attempt at raising an issue of fact, asserting that the May 24, 2013 inspection was insufficient, amounts to 5 When asked if"inspection [is] done of the manhole cover itself?" Mr. Rodriguez responded, "There's an inspection, a visual inspection of the manhole cover and its surroundings." (Tr. at 29 lines 14-19.) Mr. Rodriguez also testified that the inspection would be referenced on the EDIS report under "Does the structure require a regrade" and a regrade includes the "1-foot buffer from the manhole cover itself." (Tr. at 29 lines 20-25; at 30 lines 2-18; See EBT Testimony ofJuan F. Rodriguez, annexed as Exhibit J, Motion Seq. 002) 159992/2015 LINDENBAUM, DEBRA vs. CITY OF NEW YORK Motion No. 001 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 11/22/2019 11:19 AM NYSCEF DOC. NO. 75 INDEX NO. 159992/2015 RECEIVED NYSCEF: 11/22/2019 an expression of hope which is insufficient to rebut Con Edison's proof. (See Zuckerman v City of New York, 49 NY2d 557[1980].) Accordingly, it is hereby ORDERED that the City of New York and New York City Department of Transportation motion (Motion Seq. No. 001) for summary judgment is granted and the complaint and all crossclaims asserted against the City are dismissed with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that Consolidated Edison Company of New York, Inc. 's motion (Motion Seq. No. 002) for summary judgment is granted and the complaint and all cross-claims asserted against Con Edison are dismissed with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgments for the above defendants accordingly; and it is further ORDERED that the movants serve a copy of this order with notice of entry upon the Clerk of the Court and the Trial Support Office within twenty days ofreceipt of this order; and it is further ORDERED that any requested relief not expressly addressed herein has been considered and is hereby denied. November 15, 2019 CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN GRANTED D DENIED 159992/2015 LINDENBAUM, DEBRA vs. CITY OF NEW YORK Motion No. 001 4 of 4 D D OTHER REFERENCE Page4 of4

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