Opinion
10029 Index 106847/04
12-19-2019
Yannick BENJAMIN, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (John Moore of counsel), for the City, respondent. Torino & Bernstein, P.C., Mineola (Bruce A. Torino of counsel), for Trocom Construction Corp., respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (John Moore of counsel), for the City, respondent.
Torino & Bernstein, P.C., Mineola (Bruce A. Torino of counsel), for Trocom Construction Corp., respondent.
Manzanet–Daniels, J.P., Kern, Oing, Singh, JJ.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered May 1, 2017, which granted defendants' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiffs allege that plaintiff Yannick Benjamin was injured after his car collided with and rolled over a guiderail on the northbound side of the Henry Hudson Parkway, near 96th Street. This action was brought against the City and various City agencies (the City defendants), alleging negligence. The action against defendant Trocom Construction Corp. (Trocom) alleges liability based upon its' contract with the City to replace certain damaged guiderails between 79th and 125th Streets.
The City defendants established prima facie entitlement to judgment as a matter of law by submitting New York City Department of Transportation records revealing that they had not received any prior written notice of the allegedly defective roadway markings (see New York City Administrative Code § 7–201(c)(2) ; Sada v. City of New York, 168 A.D.3d 1014, 1014–1015, 90 N.Y.S.3d 563 [2d Dept. 2019] ). In opposition, plaintiffs failed to raise a triable issue of fact.
We reject plaintiffs' claim that the City defendants were negligent in failing to adequately address a recurrent flooding condition at catch basins in the area of plaintiff's accident (see generally Cappolla v. City of New York, 302 A.D.2d 547, 548, 755 N.Y.S.2d 100 [2d Dept. 2003], lv denied 100 N.Y.2d 511, 766 N.Y.S.2d 165, 798 N.E.2d 349 [2003] ). Deposition testimony indicates eight flooding complaints within approximately three years in the vicinity of plaintiff's accident. Of these complaints, three involved different locations, two were not substantiated, and the remaining three were either timely remedied or resolved themselves (see Cassidy v. City of New York, 121 A.D.3d 735, 736–37, 994 N.Y.S.2d 635 [2d Dept. 2014] ; Cappolla, 302 A.D.2d at 548–49, 755 N.Y.S.2d 100 ). As none of the reported flooding incidents were caused by clogged catch basins, the reports were insufficient to constitute constructive notice of a recurrent flooding hazard (see Cassidy, 121 A.D.3d at 736–37, 994 N.Y.S.2d 635 ; Cappolla, 302 A.D.2d at 548–49, 755 N.Y.S.2d 100 ).
We also reject plaintiffs' claim that a history of similar accidents should have put the City on notice of a hazardous guiderail. According to New York State Department of Transportation records, in the five years preceding the subject accident, there were two prior accidents in the area labeled "collision with guiderail—end," but the known facts regarding those accidents and the incident road conditions were sufficiently dissimilar to preclude finding that the subject guiderail was an actionable hazard (see generally Chunhye Kang–Kim v. City of New York, 29 A.D.3d 57, 59–61, 810 N.Y.S.2d 147 [1st Dept. 2006] ; see Gjonaj v. Otis El. Co., 38 A.D.3d 384, 385, 832 N.Y.S.2d 189 [1st Dept. 2007] ). The five notices of claim submitted by plaintiffs were likewise insufficient to put the City on notice of a defective guiderail at the location where plaintiff was injured (see Fan Guan v. State of New York, 55 A.D.3d 782, 785, 866 N.Y.S.2d 697 [2d Dept. 2008] ; Martin v. State of New York, 305 A.D.2d 784, 785, 759 N.Y.S.2d 802 [3d Dept. 2003], lv denied 100 N.Y.2d 512, 766 N.Y.S.2d 166, 798 N.E.2d 350 [2003] ; but cf. Gregorio v. City of New York, 246 A.D.2d 275, 280, 677 N.Y.S.2d 119 [1st Dept. 1998], lv dismissed 93 N.Y.2d 917, 691 N.Y.S.2d 380, 713 N.E.2d 414 [1999] ).
The specificity of Trocom's guiderail replacement contract with the City, and the fact that this defendant did not repair the guiderail where plaintiff was injured, preclude plaintiff claim against this defendant (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 140, 142–43, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ; Rosenbaum, Rosenfeld & Sonnenblick, LLP v. Excalibur Group NA, LLC, 146 A.D.3d 489, 490, 45 N.Y.S.3d 37 [1st Dept. 2017] ).
We have considered plaintiffs' remaining arguments and find them unavailing.