Opinion
7308 301797/12
10-11-2018
Thomas GENOVA, etc., Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Jason Anton of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jason Anton of counsel), for respondents.
Friedman, J.P., Gische, Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 8, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the negligence cause of action, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff is the trustee of the bankruptcy estate of Thomas Slockbower, an officer of the New York City Police Department (N.Y.P.D.). Plaintiff seeks damages in connection with injuries Slockbower sustained when he fell after he exited a van in the parking lot of an NYPD training facility and stepped onto an uneven, depressed asphalt area surrounding a sewer drain. Plaintiff claims that defendants were negligent in creating or failing to repair the depressed sewer grate.
The negligence cause of action is not barred by the firefighters' rule, because the risk of injury was not increased by Slockbower's performance of his official duties (see Wadler v. City of New York, 14 N.Y.3d 192, 194–195, 899 N.Y.S.2d 73, 925 N.E.2d 875 [2010] ). Slockbower had parked the van in order to direct traffic, but was not actually doing so when he fell (see Tighe v. City of Yonkers, 284 A.D.2d 325, 725 N.Y.S.2d 384 [2d Dept. 2001] ; Olson v. City of New York, 233 A.D.2d 488, 650 N.Y.S.2d 291 [2d Dept. 1996] ; Siciliano v. City of N.Y., 16 Misc.3d 1129[A], 2007 N.Y. Slip Op. 51630[U], 2007 WL 2410852, *3 [Sup. Ct., Richmond County 2007] ). Although Slockbower admitted that he did not see the depressed sewer grate because he was "[l]ooking to see if there were any cars going by," and not at the ground, it is clear from the context of this statement that he was not looking at the cars for the purpose of directing traffic, but in order to exit the van safely.
Defendants established prima facie that they neither caused nor had actual notice of the depressed sewer grate. However, they failed to establish as a matter of law that they had no constructive notice of it (see Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526, 962 N.Y.S.2d 46 [1st Dept. 2013] ). They submitted no evidence of any prior inspections (see Savio v. St. Raymond Cemetery, 160 A.D.3d 602, 75 N.Y.S.3d 11 [1st Dept. 2018] ; Niu v. Sasha Realty LLC, 151 A.D.3d 488, 489, 56 N.Y.S.3d 91 [1st Dept. 2017] ). Moreover, they submitted photographs of the grate taken within weeks after the accident that Slockbower testified fairly and accurately depicted the site as it appeared on the day of the accident (see DeGiacomo v. Westchester County Healthcare Corp., 295 A.D.2d 395, 743 N.Y.S.2d 548 [2d Dept. 2002] ). Because the nature of the defect, as depicted in the photographs, is not latent, and the defect would not have developed overnight, constructive notice may be inferred from its existence (see Johnson v. 675 Coster St. Hous. Dev. Fund, 161 A.D.3d 635, 77 N.Y.S.3d 406 [1st Dept. 2018] ).