Opinion
101897/12
06-25-2015
Joseph DeBlasi and CARRI DeBLASI, Plaintiffs, v. The City of New York, JOHN S. GANNONE, and WINROCK PLUMBING, INC., Defendants.
The following papers number 1 to 15 were marked fully submitted on the 6th day of May, 2014:
Pages
Numbered
Notice of Motion for Summary Judgment
by Defendant John S. Gannone, with Supporting Papers and Exhibits
(dated February 2, 2015).........................................................................................1
Notice of Cross Motion to Dismiss
by Defendant the City of New York, with Supporting Papers and Exhibits
(dated March 18, 2015)...........................................................................................2
Notice of Cross Motion for Summary Judgment
by Defendant Winrock Plumbing, Inc, with Supporting Papers and Exhibits
(dated April 9, 2015)...............................................................................................3
Affirmation in Opposition to City's Motion for Summary Judgment
by Plaintiff, with Supporting Papers and Exhibit
(dated April 13, 2015).............................................................................................4
Affirmation in Opposition to City's Motion
by Defendant Winrock Plumbing, Inc, with Supporting Papers and Exhibits
(dated April 15, 2015).............................................................................................5
Supplemental Affirmation in Support of Motion
by Defendant Winrock Plumbing, Inc, with Supporting Papers and Exhibit
(dated April 15, 2015).............................................................................................6
Notice of Cross Motion to Enforce Settlement
by Defendant the City of New York, with Supporting Papers and Exhibits
(dated April 16, 2015).............................................................................................7
Affirmation in Opposition to City's Motion to Enforce Settlement
by Plaintiff, with Supporting Papers
(dated April 27, 2015)............................................................................................8
Affirmation in Opposition to Winrock's Motion for Summary Judgment
by Plaintiff, with Supporting Papers
(dated April 27, 2015)............................................................................................9
Affirmation in Opposition to City's Motion for Summary Judgment
by Defendant John S. Gannone, with Supporting Papers and Exhibits
(dated April 29, 2015)..........................................................................................10
Affirmation in Reply and in Opposition to Winrock's Motion to Dismiss,
and in Further Support of the City's Motion to Dismiss
by the City of New York
(dated April 29, 2015)..........................................................................................11
Affirmation in Reply and in Further Support of the City's Motion to Enforce
Settlement, by the City of New York
(dated April 30, 2015)..........................................................................................12
Affirmation in Reply to Gannone's Opposition
and in Further Support of the City's Motion to Dismiss
by the City of New York
(dated May 1, 2015).............................................................................................13
Sur-Reply Affirmation in Opposition to City's Motion to Enforce Settlement
by Plaintiff
(dated May 4, 2015).............................................................................................14
Affirmation in Reply to the Opposition to Winrock's Motion
for Summary Judgment by Defendant Winrock Plumbing, Inc
(dated May 5, 2015).............................................................................................15
Upon the foregoing papers, the motion (No. 543-003) and cross motion (No. 1395-005) for summary judgment by defendants John S. Gannone and Winrock Plumbing, Inc. are granted; the cross motions (Nos. 1128-004 and 1474-006) of defendant the City of New York (hereinafter the "City") for summary judgment and to enforce a stipulation of settlement entered into with the plaintiff on March 27, 2015 are denied.
In this personal injury action, plaintiff Joseph DeBlasi, a United States Postal Worker, claims that on February 28, 2012, while he was in the process of delivering mail, he was negligently caused to trip and fall due to an "uneven, raised and improperly constructed sidewalk" located in front of 604 Lamont Avenue, Staten Island, New York (see Plaintiff's Bill of Particulars, para 4).
It is undisputed that defendant John S. Gannone was the owner of the property in question and that co-defendant Winrock Plumbing, Inc (hereinafter "Winrock") performed excavation and construction work in front of the subject property on December 5, 2006, approximately five years prior to plaintiff's accident.
At his deposition, plaintiff testified that while he was delivering mail on Lamont Avenue, he tripped and fell over a crack in the sidewalk and injured his right ankle (see EBT of Joseph DeBlasi, pp 22-26). Plaintiff did not see the crack until after he fell (id. at 20-21). He was not aware of any prior complaints about the condition of the sidewalk, nor did he make any complaints to the owner of 604 Lamont Avenue (id. at 42-43). According to plaintiff, the sidewalk "was like two inches above the other part of the sidewalk" ( see Transcript of Plaintiff's General Municipal §50-H Hearing, p 27).
Also submitted are copies of photographs of the sidewalk flag in question, which plaintiff testified accurately depicted the condition of the sidewalk on the date in question and the location where he fell (see Transcripts of Plaintiff's General Municipal §50-H Hearing, p 47; see EBT of Joseph DeBlasi, pp 23).
Eileen Winrock, an employee and wife of the owner of Winrock, testified on its behalf that certain work involving a "[s]eptic to sewer conversion" was performed in front of 604 Lamont Avenue on December 5, 2006 (see EBT of Eileen Winrock, p. 5, 10-12). According to the witness, the "City puts in a sanitary sewer in the middle of a road and it puts a pipe from the middle of the road to the curb line and then instructs the homeowner to hire a master plumber to connect the spur... at the curb line to [the] trap in their home... Back in 2006, we [would have] saw cut the sidewalk, re-grooved it with a tool connected to [a] backhoe, tunnel through the sidewalk[,]... through the ground and the gravel in the sidewalk, put the pipe in, compress the dirt[,] and replace the gravel and... sidewalk... as long as [it]... did not crack. If the sidewalk cracked, we would put blacktop on that piece of property for approximately four weeks until the earth settled a bit and then we would lay a new piece of concrete" (id. at 10-11). The witness testified that she does not retain possession of any "records of inspection unless we fail inspections by Department of Transportation", and denied receipt of any complaint from the homeowner about the concrete work done in front of 604 Lamont Avenue (id. at 12-13).
In an affidavit, Kevin Winrock admitted that on December 5, 2006, he performed the sanitary sewer connection at 604 Lamont Avenue, and that during the course of the work he "removed a small portion of concrete sidewalk in the immediate vicinity of the excavation" and "constructed the replacement concrete sidewalk in accordance with the New York City Department of Buildings, New York City Department of Transportation and other City agencies overseeing the pedestrian right of way" (see Affidavit of Kevin Winrock, paras 4-7). According to Winrock, "[o]n July 28, 2007, an inspector from the New York City Department of Transportation performed an inspection of the work performed by Winrock Plumbing Inc at 604 Lamont Ave, and the result was [a] Pass'" (id. at 8). In support, Winrock attached a computer printout from the City's Departement of Transportation website to demonstrate that its permit (No. S012006332022) received a post-audit "pass" on July 28, 2007 (see Winrock's Exhibit "W").
Winrock also claimed that he did not receive any written or oral complaints regarding the work performed at the above location (see Affidavit of Kevin Winrock, para 10), and that based on his inspection of the sidewalk area on February 20, 2015, i.e., after the action was commenced, the work performed by his company was located approximately thirteen feet from the sidewalk defect indicated by plaintiff (id. at 13). More specifically, Winrock attests that he "did not perform any work on the subject sidewalk flag in which the alleged defect is located. [He] also did not perform any work to any sidewalk flag located adjacent to either side of the... sidewalk [flag], where plaintiff's alleged accident occurred" (id. at 14).
Defendant John S. Gannone (hereinafter "defendant") testified at his deposition that he purchased a one-family house at 604 Lamont Avenue over 40 years ago, where he currently resides with his son and grandchildren (see December 13, 2012 EBT of John S. Gannone , pp 6-7). When asked about his son's landscaping business, Gannone admitted that he occasionally helps his son, and that the gardening equipment is kept at the home (id. at 30).
Further, Gannone denied knowledge of any complaints regarding the sidewalk in front of his house (id. at 13), and when asked if he had any maintenance or construction work done on the sidewalk adjacent to his property prior to the accident date, the witness responded in the negative ( id. at 13). However, he did recall that the City installed sewers and that "this one plumber did the whole block and everybody just got him" ( see April 2, 2014 EBT of John S. Gannone , pp 6-7). That work involved digging up the grass and sidewalk flag in front of his house ( id. at 15), which the workers "repair[ed]... before they left", by pouring new concrete ( id. at 16). After the work was completed, Gannone did not contact this plumbing company to complain about the crack left in the sidewalk ( id. at 17).
Louis Gannone, the son of defendant John Gannone, submitted an affidavit in which he attested that the "home at 604 Lamont Avenue is a one family home use[d] exclusively for residential purposes," and that he lives at the home "two days a week, but otherwise live[s] in Pennsylvania" (see Affidavit of Louis Gannone, para 3-4). The affidavit further provides that "[a]t the time of the alleged incident, [he] owned a [business performing] landscaping, handyman and odd jobs... [and that although he] would park [his] landscaping truck in [his father's] driveway... [a]ll the work... [he] performed was done at... [his] customers" homes (id. at 4-5). He denied having a "home office," as he would be paid by the customer when the work was completed (id. at 5-6).
Jeremy John, a paralegal for the City's Department of Transportation (hereinafter "DOT"), conducted a search of the records regarding the sidewalk on Lamont Avenue (between Nippon and Huguenot Avenues) from February 2, 2004 through and including February 18, 2012, and that the search revealed "62 Permits, 10 Applications, 4 Corrective Action Requests, 65 Inspections and 1 Complaint" (see Affidavit of Jeremy John, para 3). The search also revealed a Big Apple Map dated February 2, 2004 that included the subject location (id. at 4).
Based on the foregoing, the City has established prima facie its right to judgement as a matter of law on the ground that there is no evidence that it caused or created the alleged sidewalk defect, or had prior written notice of the specific defect identified by plaintiff. Nevertheless, its cross motion for summary judgment (No. 1128-004) must be denied.
The Administrative Code of the City of New York §7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects of which its officials have been actually notified exist at a specified location (see Bartels v. City of New York, 125 AD3d 583, 585 [2nd Dept 2015]). Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove in order to maintain an action against the City (id.). In this regard, maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc (hereinafter "Big Apple") and filed with the DOT serve as prior written notice of any defective conditions depicted thereon (see Fleisher v. City of New York, 120 AD3d 1390, 1391 [2nd Dept 2014]).
In opposition to the City's motion, plaintiff submits an affidavit by Andrea Kinloch, the assistant director of Big Apple, who attests that her "search revealed that there was, indeed, a defective sidewalk in front of 604 Lamont Avenue, Staten Island, New York". According to the witness, the "Big Apple map, Volume 5, Page 552, unequivocally confirms that... [in or about February of 2004] cracked and extended, raised and/or uneven portions of sidewalk existed in front of 604 Lamont Avenue, Staten Island, New York" (see Affidavit of Andrea Kinloch), and that said map was served on DOT on February 2, 2004 (id.). Accordingly, plaintiff has raised a triable issue of fact as to whether the markings on the Big Apple Map were sufficient to provide the City with notice of the sidewalk defect which caused plaintiff to fall (cf. Perez v. City of New York, 110 AD3d 777, 779 [2nd Dept 2013]).
In Motion No. 543-003, the homeowner, co-defendant John S. Gannone moves for summary judgment on the ground that the subject premises is an exempt owner-occupied, one-family home.
Section 7-210 of the Administrative Code of the City of New York (hereinafter the "Sidewalk Law") was enacted in 2003 to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners. Thus, it provides that the owner of real property abutting a sidewalk shall be liable for any injury proximately caused by the failure of the owner to maintain the sidewalk in a reasonably safe condition ( see Administrative Code 7-210[b]; see Meyer v. City of New York, 114 AD3d 734 [2nd Dept 2014]). The Sidewalk Law, however, exempts from liability the owners of one-, two- or three-family residential real property that is (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes ( id.). "This exemption recognizes the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair" ( id. at 734 [internal quotation marks omitted]).
Here, the Court opines that defendant Gannone has established prima facie that his property is covered by the foregoing exemption, and that his son's use of the driveway for his landscaping business is incidental to its residential purpose (see Town of New Castle v. Kaufman, 72 NY2d 684, 687 [1988]; Coogan v. City of New York, 73 AD3d 613 [1st Dept 2010]; cf. Sisler v. City of New York, 84 AD3d 638 [2nd Dept 2011]). In response, neither plaintiff or Gannone's co-defendants have raised a triable issue of fact. As a result, the homeowner's motion for summary judgment is granted.
Likewise, the cross motion for summary judgment by defendant Winrock (Motion No. 1395-005) is granted. In support of its motion, Winrock has submitted the affidavit of Frank Villano, a professional engineer. Based on his inspection of the sidewalk on February 20, 2015, along with his review of the relevant pleadings and deposition transcripts, Villano opined "within a reasonable degree of engineering certainty that the alleged defect in the sidewalk adjacent to 604 Lamont Avenue, Staten Island, New York... was not caused or created by the work performed by Winrock Plumbing in December 2006" (see Affidavit of Frank Villano, PE). According to Villano, the purported accident site is approximately 13 feet to the east of the Winrock sanitary sewer excavation and work area (see Winrock's Exhibit "V"). Moreover, Villano noted that during his inspection, he saw "[v]arious defects within the asphalt roadway in the vicinity of the subject parcel includ[ing] cracks in the pavement up to 1-inch [in length] and three (3) inches in overall depth, as well as abrupt differences in grade due to differential settlement and frost heave over an extended period of time". He also noted that "[b]oth of the observed [types of] defects... are not associated with [Winrock's] work areas" (id.). Further, in Villano's opinion these defects "are indicative of long-term normal and expected wear and tear of sidewalks related to water infiltration, poor drainage of the sub-base materials and subsequent cyclical freeze-thaw occurrences" (id.).
Based on this evidence, the Court opines that Winrock has established its prima facie entitlement to judgment as a matter of law. In opposition, plaintiff and its co-defendants have failed to raise a triable issue of fact.
Although a contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk, it would be mere speculation to conclude that the allegedly dangerous condition which caused plaintiff to trip and fall was the result of any affirmative act of negligence performed by Winrock at a location some 13 feet distant (see Minier v. City of New York, 85 AD3d 1134 [2nd Dept 2011]).
Finally, the City's motion (No. 1474-006) to enforce the stipulation of settlement executed by plaintiff's counsel on his behalf on March 27, 2015 must be denied.
Absent the formalities required by statute (see CPLR 2104), a stipulation of settlement is unenforceable (see DeWell Container Shipping Corp v. Mingwei Guo, 126 AD3d 846 [2nd Dept 2015]). Thus, "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered" (CPLR 2104). In addition, in order to be enforceable, "[t]he stipulation must be definite and complete and all material terms must be included" ( id. at 847 [citations and internal quotation marks omitted]).
It is well settled that stipulations of settlement are favored by the courts and will not lightly be cast aside. Accordingly, if made in compliance with the statute, it is only in the presence of cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, that a party will be relieved of the consequences of a stipulation made during litigation (see Bethea v. Thousand, 127 AD3d 798 [2nd Dept 2015]). However, an exception exists if it can be demonstrated by the party that its agent (e.g., counsel) was without authority to enter into same (see Matter of 259 Broadway Realty Corp v. Incorporated Vil of Amityville, 29 AD3d 596, 597 [2nd Dept 2006]).
Here, in opposition to the City's enforcement motion, plaintiff's counsel affirms that he "failed to explain to the plaintiff that there was a $125,000.00 Worker's Compensation lien that had to be compromised and partially paid from the $35,000.00 settlement". As a result, "plaintiff would not sign the Release" (see Affirmation of Nicholas Martino, Jr., Esq., paras 4-5). Based on the foregoing, the motion to enforce the stipulation of settlement entered into without plaintiff's full knowledge of the consequences must be denied.
Accordingly, it is
ORDERED that the motion and cross motion for summary judgment by defendants John S. Gannone and Winrock Plumbing Inc are granted; and it is further
ORDERED that the complaint and any cross claims against these defendants are severed and dismissed; and it is further
ORDERED that the remaining cross motions by defendant the City of New York are denied; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.
ENTER,
_____/s/ Hon. Thomas P. Aliotta.__________
J.S.C.
DATED:June 25, 2015