Opinion
No. 107545.
2010-08-23
Jeanne CONNOR, Plaintiff, v. CITY OF NEW YORK and New York City Department of Transportation, Defendants.
Jason S. Krakower, Esq., Raphaelson & Levine Law Firm, P.C., New York, for plaintiff. Andrew Lucas, ACC, Michael A. Cardozo, Corporation Counsel, New York, for defendant City.
Jason S. Krakower, Esq., Raphaelson & Levine Law Firm, P.C., New York, for plaintiff. Andrew Lucas, ACC, Michael A. Cardozo, Corporation Counsel, New York, for defendant City.
BARBARA JAFFE, J.
By notice of motion dated March 30, 2010, defendants City of New York and New York City Department of Transportation (DOT) (collectively, City) move pursuant to CPLR 3211(a)(7) for an order dismissing the claims against them, or alternatively, pursuant to CPLR 3212, for an order summarily dismissing the complaint. As defendants offer no factual or legal basis for a dismissal pursuant to CPLR 3211(a)(7), only the motion pursuant to CPLR 3212 is addressed. ( See Kane v. City of New York, Sup Ct, New York County, May 14, 2010, Jaffe, J., Index No. 103963/07).
I. UNDISPUTED FACTUAL BACKGROUND
On August 24, 2007, plaintiff stepped off the sidewalk on the southwest corner of Lenox Avenue and 125th Street, tripped on a defect in the street, and fell. (Affirmation of Andrew Lucas, Esq., dated March 30, 2010 [Lucas Aff.], Exh. A). In her notice of claim, plaintiff alleges that the defect was three inches deep, approximately 29 feet north of the corner, two feet from the curb line, and approximately 44 feet west of the cement median which divides Lenox Avenue. ( Id.). At a hearing held pursuant to General Municipal Law § 50–h, plaintiff testified that she fell while crossing Lenox Avenue in order to catch an uptown bus across the street. ( Id., Exh. B).
Abraham Lopez, a record searcher for the DOT, testified at a deposition held on November 4, 2009, as to the results of a search conducted by Stacey Williams, an employee in his office. (Lucas Aff ., Exh. F). A roadway segment search for the area of Lenox Avenue between 125th and 126th Streets revealed twelve permits, two applications, sixteen inspections, one notice of violation, no corrective action requests, an application filed by Tri–Line Contracting Corp. to perform work in front of 310 Lenox Avenue, between West 125th Street and West 126th Street, and a notice of violation issued to Structural Systems relating to 310 Lenox Avenue for failure to comply with terms and conditions of DOT permits. ( Id., Exhs. F at 7–8, 10–11, G).
II. CONTENTIONS
City contends that it cannot be held liable for plaintiff's injuries absent prior written notice of the condition, and denies that it either caused or created the condition. In support, it relies on plaintiff's notice of claim identifying the precise location of her fall, the deposition testimony of plaintiff and Lopez, the results of the DOT search, a map of the location provided by the Big Apple Pothole and Sidewalk Protection Corporation (Big Apple map), and other maps. (Lucas Aff., Exhs. A, B, F, G).
In opposition, plaintiff argues that City has failed to establish, prima facie, that it had no written notice, or that it did not cause and create the condition. In support, she relies on the notice of violation for the block where she fell. (Affirmation of Jason s. Krakower, Esq., dated June 18, 2010).
In reply, City argues that the notice of violation is for a location that does not correspond with the location of plaintiff's fall. (Affirmation in Reply of Andrew Lucas, Esq., dated June 25, 2010).
III. ANALYSIS
It is well-settled that “[t]he proponent of a summary judgment motion 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. Ctr., 64 N.Y.2d 851, 853 [1985];Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980];Friends of Animals, Inc. v. Associated Fur Mfrs, Inc., 46 N.Y.2d 1065, 1067 [1979] ). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers. (Winegrad, 64 N.Y.2d 851, 853). Accordingly, it is City's burden here, as movant, to demonstrate its entitlement to judgment, and must negate, prima facie, an essential element of the plaintiff's cause of action. (Rosabella v. Metro. Trans. Auth., 23 AD3d 365, 366 [2d Dept 2005] ). If shown, the burden shifts to plaintiff.
Pursuant to New York City Administrative Code § 7–201 “no civil action shall be maintained against the city” arising from a dangerous condition on a sidewalk absent proof that City had written notice of the dangerous condition. Big Apple maps have been deemed sufficient evidence of written notice if the alleged defect is clearly identified and corresponds with the condition which allegedly caused the accident. (D'Onofrio v. City of New York, 11 NY3d 581 [2008] ). If City establishes that it received no written notice, the burden shifts to plaintiff to establish a recognized exception to the rule, in this case, that City affirmatively created the defect. (Yarborough v. City of New York, 10 NY3d 726, 728) [2008] ).
As plaintiff indicates, both in her deposition testimony and notice of claim, she fell at the southwest corner of the intersection of Lenox Avenue and West 125th Street, and as the Big Apple map reflects an “extended section of broken, misaligned or uneven curb” on the other side of the street and across the median, closer to the northeast corner, City has demonstrated, prima facie, that the defects identified in the search results and Big Apple map are not where plaintiff fell. ( Cf D'Onofrio, 11 NY3d at 585 [markings on Big Apple Map did not indicate defect alleged by plaintiff] ). City has also demonstrated, prima facie, that the notice of violation relating to 310 Lenox Avenue pertains to the other side of the street and across the median. ( See Maynard v. Harrah's Entertainment, Inc., 2010 WL 1930263, *5 n. 6; 2010 U.S. Dist LEXIS 45888, *15 n. 6 [ED N.Y.2010] [taking judicial notice, via Google maps, of distance between two locations]; Application of Carmen Crespo, 123 Misc.2d 862, 863 [Sup Ct, New York County 1984] [taking judicial notice that intersection in notice of claim does not exist in Manhattan]; Dynamic Medical Imaging, P.C. v. State Farm Mutual Auto. Ins. Co., Misc.3d, 2010 N.Y. Slip Op 20285 [Dist Ct, Nassau County 2010] [observing that Google maps indicate street in residential neighborhood] ). Consequently, City has satisfied its burden that it received no written notice of the defect.
As City has established the absence of written notice, the burden shifts to plaintiff to establish an issue of fact as to whether City affirmatively created a dangerous condition. (Yarborough, 10 NY3d at 728). As plaintiff offers no evidence other than that addressed above, she has failed to sustain her burden of proof on the motion.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendants City of New York and New York City Department of Transportation's motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendant 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 judgment accordingly.
This constitutes the decision and order of the court.