Opinion
2012-03-1
Ingram BATTS, et al., Plaintiffs–Appellants–Respondents, v. CITY OF NEW YORK, Defendant–Respondent–Appellant,Neighborhood Partnership Housing Development Fund Company, Inc., et al., Defendants–Respondents.
Blank & Star, PLLC, Brooklyn (Helene Blank of counsel), for appellants-respondents. Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), for respondent-appellant.
Blank & Star, PLLC, Brooklyn (Helene Blank of counsel), for appellants-respondents. Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), for respondent-appellant. Smith & LaQuercia, LLP, New York (Lana S. Kaganovsky of counsel), for Neighborhood Partnership Housing Development Fund Company, Inc. and West 132 Street, LLC, respondents.Quirk and Bakalor, P.C., New York (Richard H. Bakalor of counsel), for A. Aleem Construction, Inc., respondent.TOM, J.P., FRIEDMAN, ACOSTA, DeGRASSE, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered January 14, 2011, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained when a scaffold-supported sidewalk shed collapsed and fell on plaintiffs pedestrians as they walked underneath it, denied plaintiffs' motion for partial summary judgment on the issue of liability and denied defendant City of New York's cross motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, the City's cross motion granted, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint and all cross claims as against defendant City of New York.
Plaintiffs' motion was properly denied as against defendant A. Aleem Construction Inc., the contractor that constructed the subject sidewalk shed. Viewing the evidence in the light most favorable to the contractor, there is a dispute between the parties' respective experts relating to whether the sidewalk shed was properly constructed. These conflicting opinions of the experts cannot be resolved on a motion for summary judgment ( see Ocampo v. Abetta Boiler and Welding Serv., Inc., 33 A.D.3d 332, 333, 822 N.Y.S.2d 52 [2006] ).
Defendants owner and developer had a nondelegable duty to ensure due care in the construction of the sidewalk bridge that extended over an area used by pedestrians ( see Tytell v. Battery Beer Distrib., 202 A.D.2d 226, 227, 608 N.Y.S.2d 225 [1994] ). However, as the motion court held, a finding of negligence on the part of defendant contractor is a prerequisite to the owner and developer's vicarious liability in this matter ( see Little v. Cohen, 259 A.D.2d 261, 686 N.Y.S.2d 11 [1999] ).
The action as against the City should have been dismissed. Administrative Code of City of N.Y. § 7–201(c)(2) requires plaintiffs to show that the City received prior written notice of the alleged defect as a prerequisite to maintaining an action ( see Tucker v. City of New York, 84 A.D.3d 640, 923 N.Y.S.2d 525 [2011], lv. denied 17 N.Y.3d 713, 2011 WL 4916547 [2011] ). Although there is evidence that the City was notified of the unstable nature of the sidewalk shed, where, as here, the City neither created the sidewalk shed through an affirmative act of negligence nor made special use of it, the lack of prior written notice is fatal to plaintiffs' claim against the City ( see id. at 644–45, 923 N.Y.S.2d 525). “Nor can a verbal or telephonic communication to a municipal body that is reduced to writing satisfy a prior written notice requirement” ( Gorman v. Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009] ).