Rivera v Consolidated Edison Co. of N.Y., Inc.

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Rivera v Consolidated Edison Co. of N.Y., Inc. 2022 NY Slip Op 33471(U) October 11, 2022 Supreme Court, New York County Docket Number: Index No. 158106/2017 Judge: Leslie A. Stroth 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. INDEX NO. 158106/2017 FILED: NEW YORK COUNTY CLERK 10/14/2022 12:24 PM NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 10/14/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LESLIE A. STROTH PART 52 _:_:...:::....:...:..:.._=:.=..::=...::...:;.;~.c...;;...;:__;;:__:...:....:..._ _ _ _ __ Justice ----------------------------------------------------------X ERICA RIVERA INDEX NO. MOTION DATE Plaintiff, 158106/2017 01/28/2022 002 MOTION SEQ. NO. - V - CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al. DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 59, 60, 61, 62, 63, 64,65,66,67,68, 69,70, 71,72, 73, 74, 75,76, 77, 78,79,80,81, 82, 83, 84,85,86, 87, 88, 89,90, 91, 92, 93, 94 SUMMARY JUDGMENT were read on this motion for This action arises out of injuries allegedly sustained by plaintiff Erica Rivera (plaintiff) on May 25, 2017. Plaintiff alleges that, "she was burned/scolded [sic.] by steam emitting from and/or out of a manhole" located on the southeast corner of Reade Street and Broadway, New York, New York. Exhibit A Notice of Claim, NYSCEF doc. no. 64 at 1. The City ofNew York and the New York City Department of Environmental Protection (DEP) (together, the City,) move for summary judgment pursuant to CPLR 3212 seeking an order dismissing plaintiff's complaint and all cross-claims against it. The City argues that it did not have notice of the alleged condition, as required by the Administrative Code of the City of New York§ 7-201, nor did it cause and/or create the alleged condition. While the City admits that it owns the subject manhole, it maintains that it cannot be held liable for plaintiff's injuries unless she demonstrates that the injury was caused by the City's negligence: Both plaintiff and defendant Consolidated Edison Company of New York (Con Edison) oppose the City's motion. Specifically, Con Edison argues that plaintiffs injuries w~re caused by a vapor 158106/2017 ERICA RIVERA vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL. Motion No. 002 [* 1] 1 of 5 Page 1 of 5 FILED: NEW YORK COUNTY CLERK 10/14/2022 12:24 PM NYSCEF DOC. NO. 97 INDEX NO. 158106/2017 RECEIVED NYSCEF: 10/14/2022 condition, not a steam condition as alleged by plaintiff and the City, and that Con Edison gave notice of such vapor condition to the City. In support of its opposition, Con Edison submits the deposition testimony of Anthony Orofino, a Con Edison utility worker with Steam Operations. See Exhibit A, Orofino Examination Before Trial (EBT), NYSCEF doc. no. 86. Mr. Orofino testified that, based on his review of Con Edison's steam records, Con Edison insta11ed a steam stack at the accident location due to a clogged catch basin, which created_ a vapor condition. Id. 33-35; see also Exhibit B at 4, Steam Operations Job Detail Report 201703676, NYSCEF doc. no. 87. According to Con Edison's records, the vapor condition continued· from April 2017- July 2017, two months after plaintiffs alleged accident date. See NYSCEF doc. no. 87. Con Edison argues that the clogged catch basin at the subject location caused the vapor that allegedly injured the plaintiff. Con Edison annexes to its motion the affidavit of Dominic Gencarelli, a Manager of Con Edison's Steam Distribution's Planning Section. See Exhibit C, NYSCEF doc. no. 88. Mr. Gencarelli attests that he is familiar with Con Edison's steam system and that he understands how the steam system connects with the City's underground systems. Mr. Gencarelli explains Con Edison's position as to the relationship between the vapor and the clogged catch basin: When a [Department of Environmental Protection] catch basin is clogged, it causes a flooding condition that can inadvertently come in contact with the Con Edison Steam Distribution piping. When the sewer/storn1 water comes in contact with the underground steam piping, it will cause a vapor condition. This is not Con Edison steam being emitted through the_ catch basin. It is the sewet/stollll water being heated and vaporized from the steam pipe that is in close proximity. See Exhibit C at ,r 4. Mr. Gencarelli attests that the Steam Distribution Department's records indicate that there is a history of clogged catch basins at plaintitTs alleged accident location. See Exhibit C at il 6; see also NYSCEF doc. no. 87. Further, he avers that thatthere is no record of a Con Edison steam leak for the two years prior to and including the date of the alleged accident forthe location at issue. See NYSCEF doc. no. 88 at ,r 3. Mr. Gencarelli also attests that Con Ed notified DEP of the catch basin condition. See Exhibit Cat ,r 6, NYSCEF doc. no. 88. Con Edison claims that the City's own witness, Narendra Nerine, testified at 158106/2017 ERICA RIVERA vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL. Motion No. 002 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 158106/2017 FILED: NEW YORK COUNTY CLERK 10/14/2022 12:24 PM NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 10/14/2022 his deposition that the City had notice of the _vapor condition as of June 2015, via a City complaint concerning clogged catch basins at the subject intersection. See Exhibit N, NYSCEF doc. no. 77 at 35-36. Mr. Narine also testified that the DEP maintains all of the catch basins in the City."Jd. at 21, lines 5-7. Plaintiff also opposes the City's motion for summary ju~gment, arguing that the location in which her alleged injury occurred has a history of clogged catch basins and that the City's records show that it had notice of the resulting vapor which caused her alleged injury. 1 Plaintiff states that triable issues of fact • remain as to whether the clogged catch basin vapor was an ongoing condition of wh~ch the City had notice and failed to repair and whether the City caused and created the subject condition. The City maintains that plaintiff alleges in her notice of claim and complaint that she was injured due to " ... steam emitting from and/or out of a manhole," not vapor from a clogged catch basin. Exhibit A, Notice of Claim, NYSCEF doc. no. 64 at 1. The City reiterates that it had no notice of a steam condition from the subject manhole. Therefore, any notice Con Edison asserts the City may have had regarding the clogged catch basin is irrelevant, because plaintiffs injury involved a manhole. Moreover, the City argues that Con Edison's internal records indicate that a Con Edison employee responding to the clogged catch basin checked for vapor and found it "completely dry" upon inspection on April 18, 2017. See NYSCEF doc. no. 87 at 5. The City also clarifies that its witness, Mr. Narendra Nerine, testified that a clogged catch -- basin does not produce steam or heat, only flooding. See NYSCEF doc. no. 77 at 89-93. According to the City, even if a catch basin did produce steam or heat, such condition would have developed over time, and the City would not be liable for a condition that does not immediately result in a hazardous condition. See Bielecki v City ofNew York, 14 AD3d 301 (1st Dept 2004). 1 The City objects to the Court's consideration of plaintiff's belatedly filed affinnation in opposition. However, as the City had an opportunity to respond in its reply papers, ~he Court will consider the plaintiff's opposition. See Vapnyar Affirmation in Reply, NYSCEF doc. no. 95. Additionally, the Court notes that the plaintiff's opposition largely mirrors the arguments in Con Edison's opposition, which was timely filed. [* 3] 158106/2017 ERICA RIVERA vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL . 3 of 5 Page 3 of 5 INDEX NO. 158106/2017 FILED: NEW YORK COUNTY CLERK 10/14/2022 12:24 PM NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 10/14/2022 It is a well-established principle that' the "function of summary jucfgnient is issue finding, not issue . .. . . . ~ d~termination." Assafv Ropog Cab. Corp., 153 AD7d 520 (lst.Pept .1989), quoting Sillman v Twentieth . . . Century-Fox Film Corp., 3)..JY2d 395, 404 [1957]:)'. As such, the proponent of c,l motion ·for summary - . "·-- judgment must te11der sufficic;nt eviden~~ to show the absence of any m_aterial issue of fact and the right to entitlement to judgment as a matter oflaw. See.Alvarez v· Prospect Hospital, 68 NY2d 320 (1986); Winegrad v New York University Medical Center, 64 NY2d 851 {1985). Summary judgment is a drastic remedy that should not be granted ~here there is any doubt· as to thei existence of issues of fact. See. Sillman, 3 NY2d at· 404. Therefore, the party.opposing a mot1on for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted. See Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1st Dept 1990), citing Assaf, 153 AD2d at 521. . . .. . . . To hold the City liable for injuries resulting from an allegedly defective condition, a plaintiff must demonstrate that the City has received prior written notice of the subject condition, See Administrative Code§ 7-201; Amabile v City of Buffalo, 93 NY2d471 (1999):The only exceptions to the prior written notice requirement are where the municipality itself created the defect. through an affirmative act of negligence or where the defect resulted froni a special use by the municipality. See Yarborough v City of· . . New York, 10 NY3d 726 (2008); Amabile, 93 NY2dA7l. Viewing the evidence in a light most favorable to the opposing parties, triable issues of fact exist as to whether the City had. riotice of or caused and/or created the existence of steam or vapor at. the accident · location. Con Edison's witnesses and supporting documentation raise questions of fact as to whether the ·+ City had notice of or caused and/or created a vapor or a steam that led to plaintiff's injuries. See NYSCEF doc. no. 86 at 33-35, NYSCEF .doc. ho. 87; and NYSCEF doc. no. 88. Moreover, the parties' papers raise questions as to whether the injury resulted from a manhole, ~logged catch basin, grate, or other roadway. hardware. Therefore, the City has not tendered· sufficient evidence to show the _absence of any material [* 4] 158106/2017 ERICA RIVERA vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL. 4 of 5 . Page 4 of 5 INDEX NO. 158106/2017 FILED: NEW YORK COUNTY CLERK 10/14/2022 12:24 PM NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 10/14/2022 issue of fact, including the dispositive issues of what defect caused the injury and whether the City had notice of or caused and/or created such defect. Accordingly, it is ORDERED that the City's motion for summary judgment is denied. The foregoing constitutes the decision and order of the Court. 10/11/2022 DATE CHECK ONE: CASE DISPOSED GRANTED 0 NO DENIED AL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158106/2017 ERICA RIVERA vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL - Motion No. 002 [* 5] 5 of 5 • • Page 5 of 5 OTHER REFERENCE

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