Opinion
No. 11171/08.
2010-09-3
Dora FERMIN, Plaintiff, v. The CITY OF NEW YORK and Millenium Pharmacy, Inc., Defendants.
Paul Polios, Sacco & Fillas, LLP, Whitestone, NY, Attorneys for Plaintiff. Edward T. Timbers, Corporation Counsel, Brooklyn, NY, Attorneys for Defendant the City of New York.
Paul Polios, Sacco & Fillas, LLP, Whitestone, NY, Attorneys for Plaintiff. Edward T. Timbers, Corporation Counsel, Brooklyn, NY, Attorneys for Defendant the City of New York.
Richard J. Fodera, Robin, Harris, King & Fodera, New York, NY, Attorneys for Defendant Millenium Pharmacy, Inc.
KENNETH P. SHERMAN, J.
Upon the foregoing papers, defendants, the City of New York (City) and Millennium Pharmacy, Inc. (Millennium), move and cross-move, respectively, for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint of plaintiff, Dora Fermin (plaintiff). Plaintiff separately moves, pursuant to CPLR 3025(b), for leave to amend her complaint to add MMLC Corporation (MMLC) as a co-defendant.
Background Facts and Procedural History
Plaintiff punctured the sole of her right foot and fell on her right side on September 11, 2007 in front of 3420 Fulton Street in Brooklyn after stepping on the metal stump of a No Parking signpost located one and a half inches above the sidewalk and approximately 25 feet from the corner of Lincoln Avenue and Fulton Street. She claims chronic pain in her right foot and resulting difficulty walking and running from the trip and fall.
She filed a notice of claim against the City on November 5, 2007 and then filed this action for her personal injuries from the fall against the City and Millennium on April 8, 2008. Millennium has rented the ground floor of 3420 Fulton Street, a mixed-use building, from its owner, MMLC since 2004. Plaintiff claims that it was the City's and Millennium's duty to maintain the southeast sidewalk corner of Lincoln Avenue and Fulton Street and that her personal injuries resulted solely from defendants' negligence, carelessness and recklessness.
Discussion
The City's Summary Judgment Motion
(1)
A plaintiff seeking to recover from the City for injuries caused by a defect in the sidewalk must show as a condition precedent to suit that the City received prior written notice of the defect as required by the Administrative Code of the City of New York (N.Y.C Administrative Code) § 7–201(c)(2) (the Pothole Law). “A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto” (Regan v. Town of North Hampstead, 66 AD3d 863, 864 [2009];Diaz v. City of New York, 56 AD3d 599, 600 [2008] ).
Here, the City states that it did not receive any prior written notice of the metal stump that allegedly injured plaintiff's foot. It proffers deposition testimony by two New York City Department of Transportation (DOT) employees, Mr. Joseph Lorenzo and Ms. Stacey Williams, and documentary evidence as a prima facie showing in support of its motion.
Mr. Lorenzo, the DOT's Deputy Borough Engineer for Brooklyn, testified (at pages 12–13 of his deposition) that the City received a complaint on November 29, 2006 about a stump of a signpost in the sidewalk on the eastern side of Lincoln Avenue between Fulton Street and Atlantic Avenue. He explained that the records indicate that a contractor removed the stump and installed a new No Parking signpost and sign on December 5, 2006, but thereafter, the City had no written notice that the No Parking signpost was allegedly knocked down again until after plaintiff's injury.
In addition, Ms. Williams, a Record Searcher and Testifier at the DOT, described in her testimony the results of a search she performed in connection with the case regarding the Lincoln Avenue sidewalk between Fulton Street and Atlantic Avenue. She testified (at pages 10–13 and 18–19 of her deposition) that, other than the December 5, 2006 job, the City has no record of applications for permits, permits, violations, contracts, complaints or repair orders between September 11, 2005 and September 11, 2007. The City therefore has made a successful prima facie showing that it received no prior written notice that the No Parking signpost had been knocked down again until after plaintiff's injury. Ms. Williams' and Mr. Lorenzo' respective deposition testimony and documentary evidence together provide facts that clearly establish that the City did not receive any written notice about the metal stump of the knocked-down No Parking signpost after December 5, 2006 and before plaintiff's accident. Equally significant, the plaintiff has voiced no challenge in response to any facts in either Ms. Williams' or Mr. Lorenzo's testimony, and, therefore, plaintiff may be deemed to have admitted the facts therein ( see Zientek v. State 222 A.D.2d 1041, 1042 [1995],appeal dismissed87 N.Y.2d 1054 [1996],cert denied519 U.S. 862 [1996] ).
Plaintiff argues in opposition that the City's summary judgment motion is procedurally defective for failing to comply with CPLR 3212(b) which requires that a summary judgment motion “be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.”
However, “[t]he fact that defendant's supporting proof was placed before the court by way of an attorney's affidavit annexing ... deposition testimony and other proof rather than affidavits of fact on personal knowledge, does not defeat defendant's right to summary judgment” (Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093 [1985];Enriquez v. B & D Dev., Inc., 63 AD3d 780, 781 [2009] [“defendants established their prima facie entitlement to judgment as a matter of law ... by annexing the pleadings and the deposition testimony of the plaintiff to their attorney's affirmation”] [internal citation omitted]; Paul v. Haley, 183 A.D.2d 44, 55–56 [1992],lv denied81 N.Y.2d 707 [1993] [“fact that the defendants' supporting proof was placed before the court by way of attorneys' affidavits, annexing the plaintiff's manuscript, deposition testimony, and other proof, rather than affidavits, based on personal knowledge, does not defeat the defendants' right to summary judgment”] ).
(2)
Once the City has made a prima facie showing that a plaintiff has not met the written notice requirement, such plaintiff may still defeat summary judgment by establishing either that the particular condition constituted a special use resulting in a special benefit to the City, or that the City affirmatively caused or created the defect by performing work that immediately resulted in the existence of a dangerous condition ( see Yarborough v. City of New York, 10 NY3d 726, 728 [2008] ).
Plaintiff claims that in this case the No Parking sign and signpost, even though missing, provided a special use to the City because the City could fine motorists who parked their vehicles at that location at a prohibited time. However, the Court of Appeals has observed that “the special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to public use, and is therefore required to maintain a portion of that property” (Poirier v. City of Schenectady, 85 N.Y.2d 310, 315 [1995] [emphasis added] ). Traffic signs and their posts and anchors do not qualify as a special use to the City as “[t]raffic signs are intended to promote the orderly flow of vehicular and pedestrian traffic, and the posts and anchors are generally maintained by the municipality in the discharge of its duty to create safe streets” ( id.).
Plaintiff's attempt to distinguish Poirier as limited to vehicular and pedestrian traffic signs and not, as here, parking signs is unavailing. The Appellate Division, First Department held in Bisulco v. City of New York (186 A.D.2d 84, 85 [1992] ) that an “IAS Court erred in finding that the installation of a parking sign on a city street is a special use bringing it out of the mandate of the statute [i.e., the Pothole Law].”
Plaintiff also argues that a triable issue of fact remains whether the City possibly caused or created the dangerous metal stump on the sidewalk because it does not argue or maintain that it did not remove, knock down or cut off the No Parking signpost and left only the metal stump. However, Mr. Lorenzo's and Ms. Williams' respective deposition testimony eliminate this issue by establishing that the City never issued a repair order to remove the No Parking signpost after it was replaced on December 5, 2006 and that there were no subsequent written notices on record for the subject location.
Plaintiff in her final argument contends that the dangerous condition at issue is outside the Pothole Law's scope, which she claims, concerns only physical defects in the sidewalk, such as holes, cracks and raised or misleveled concrete slabs. However, plaintiff's cited case law
fails to support this argument and simply establishes that the Pothole Law is inapplicable to defective or poorly maintained “Stop” signs. Rather, it is well settled that the stump of a metal signpost anchor protruding from the sidewalk constitutes a condition for which prior written notice is required under the Pothole Law ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 475 [1999] [prior notice applies to 10–inch remnant of signpost protruding from sidewalk]; Poirier v. City of Schenectady, 85 N.Y.2d at 314 [prior notice applies to four-inch traffic sign post anchor protruding from sidewalk] ).
Plaintiff cited Doremus v. Incorporated Vil. of Lynbrook (18 N.Y.2d 362, 365–366 [1966] );DiSanto v. Town of Islip (212 A.D.2d 500, 500–501 [1995] );Fitzpatrick v. Barone (215 A.D.2d 351, 351 [1995] );Torres v. Galvin (189 A.D.2d 870, 871 [1993] ); and De Francisci v. Baron
(97 A.D.2d 453, 454 [1983] ).
Plaintiff's Motion To Amend Her Complaint and Add A New Defendant
A party seeking to join an additional party may, pursuant to CPLR 3025(b), amend or supplement the complaint by leave of the court, but the movant must strictly comply with CPLR 1003, which provides that “[p]arties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared ...” “[N]oncompliance renders the pleadings jurisdictionally defective (Perez v. Paramount Communications, 92 N.Y.2d 749, 753 [1999];see also Nikolic v. Federation Empl. & Guidance Serv., Inc., 18 AD3d 522, 524 [2005] [“plaintiff's service of the amended summons and complaint was a nullity since he served these papers without leave of court or a stipulation of the parties in accordance with CPLR 3025(b)”]; Yadeger v. International Food Mkt., 306 A.D.2d 526, 526 [2003] [“plaintiffs' failure to follow (CPLR 1003) before service of their supplemental summons and amended complaint constituted a jurisdictional defect requiring dismissal of the action against the new party defendants”] ).
Here, plaintiff seeks to add MMLC as a defendant by leave of this court. The moving papers note that plaintiff only learned that MMLC was the owner of the property at the time of her accident through the July 24, 2009 deposition testimony of Mr. Rahman, tenant Millennium's President. Plaintiff claims that MMLC would suffer no prejudice by the amendment of the complaint.
However, plaintiff has failed to serve its motion papers upon MMLC, the proposed new defendant. More significantly, though, plaintiff mistakenly seeks to impose liability upon MMLC. NYC Administrative Code § 7–210, applicable to sidewalk-defect accidents occurring on or after September 14, 2003, shifted liability for sidewalk accidents in most instances from the City to abutting land owners.
Nonetheless, the Appellate Division, First Department held on July 1, 2010 in Smith v. 125th St. Gateway Ventures, LLC (75 AD3d 425, 425 [2010] ) that “a city sign or signpost is not part of the sidewalk' for purposes of section 7–210 of the Administrative Code of the City of New York, which imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition” ( see also Calise v. Millennium Partners, 26 Misc.3d 1222[A], 2010 N.Y. Slip Op 50208[U] [2010] [plaintiff tripped and fell on a piece of protruding metal that was from a signpost bearing a No Parking or No Standing sign; landowner “as a matter of law ... is not liable for the defective condition of a city-owned and maintained sign post”]; Sehnert v. New York City Transit Authority, 2009 N.Y. Slip Op 32807[U] [“(g)enerally, liability for a city sign post lies with the City, and not with the landlord or tenant”]; King v. Alltom Props., Inc ., 16 Misc.3d 1125[A], 2007 N.Y. Slip Op 51570[U] [2007] [landowner bears no obligation to maintain City signpost] ). Indeed, New York City Charter § 2903(a)(2) obligates the City, through its Department of Transportation to “control, install and maintain ... any and all signs, signals, marking, and similar devices ... for guiding, directing or otherwise regulating and controlling vehicular and pedestrian traffic in the streets.”
More specifically, Section 7–210(a) pertinently provides that “[i]t shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition.” Section 7–210(b) then pertinently provides that “the owner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.” However, Section 7–210(b) “shall not apply to one-, two- or three-family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.”
Correspondingly, Section 7–210(c) pertinently provides that “the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two-or three-family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition.” In addition, Section 7–210(c) “shall not be construed to apply to the liability of the city as a property owner pursuant to subdivision b of this section.”
In addition, the signpost fails to qualify as a special use to the owner. MMLC, like the owner in Calise, “had no power to either install a No Parking' or No Standing' sign or to remove such a sign that was installed by the City. That some benefit may have flowed to [the owner] is not the determinative factor. There must be control over the installed object in order to impute liability to [the owner] under a theory of special use, and that has not been shown here” (Calise v. Millennium Partners, 2010 N.Y. Slip Op 50208 [U], *3). Consequently, the above analysis shows that plaintiff's proposed amendment to add MMLC, the building owner, as a co-defendant lacks merit and warrants denial.
Millennium's Summary Judgment Motion
The above analysis equally warrants granting tenant Millennium's summary judgment motion. No statutory duty applies herein to either Millennium or MMLC, and plaintiff does not contend that Millennium created the dangerous condition of the sidewalk nor caused the condition through special use.
Plaintiff does argue that Millennium bears liability for failing to notify the City or MMLC of the metal stump because Mr. Rahman, Millennium's President, voluntarily assumed a duty to act “in a reasonably prudent manner” by calling 311 twice to notify the City before the accident about a hole in the street in front of his store. However, Mr. Rahman's telephone calls fail to constitute assumption of a voluntary duty. The Court of Appeals noted in Waters v. New York City Housing Authority (69 N.Y.2d 225, 230 [1987] ) that the extent of control that a defendant has over the ultimate injuries incurred by a plaintiff constitutes an important issue in determining the scope of a defendant's duty. Here, the City, not Millennium, controls the signpost repair and no liability could extend to plaintiff from Mr. Rahman's phone notifications to the City ( see Matter of New York State Silicone Breast Implant Litig., 166 Misc.2d 299 [NY County, 1995], affd 227A.D.2d 310, 311 [1996], appeal dismissed89 N.Y.2d 889 [1996] ). Accordingly, it is
ORDERED that defendant City's summary judgment motion is granted; and it is further
ORDERED that plaintiff's motion to amend her complaint and add MMLC as a co-defendant is denied; and it is further
ORDERED that defendant Millennium's summary judgment motion is granted.
This constitutes the decision, order and judgment of this court.