Opinion
Index No. 109063/2008 MOTION SEQ. No. 007
01-16-2024
MEGHAN GONYO, Plaintiff, v. THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK INC., TRINITY COMMUNICATIONS CORP., EN-TECH CORP., DANELLA CONSTRUCTION CORP., NICO ASPHALT, INC., Defendants. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Plaintiff, v. DANELLA CONSTRUCTION CORP. and NICO ASPHALT, INC., Third-Party Defendants.
Unpublished Opinion
MOTION DATE 03/13/2023
PRESENT: HON. JUDY H. KIM, Justice.
DECISION + ORDER ON MOTION
HON. JUDY H. KIM, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 175, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 231, 234, 235, 236, 240, 241 were read on this motion to _DISMISS.
Upon the foregoing documents, the City of New York's motion, pursuant to CPLR §3212, for summary judgment dismissing this action and all crossclaims against it is granted for the reasons set forth below.
Plaintiff alleges that on April 15, 2007, she tripped and fell in a hole within the southern crosswalk at the intersection of Essex Street and Rivington Street, New York, New York, sustaining injuries (NYSCEF Doc. No. 183 [Compl. at ¶¶ 24-25] and 159 [Gonyo EBT at pp. 39-41]). Plaintiffs initial complaint asserted negligence claims against the City of New York (the "City"), alleging, as relevant here, that the City had "[w]ritten notice of the ... condition" and failed to remedy it (Id. at ¶¶ 24-25). Thereafter, plaintiff filed an Amended Complaint, pursuant to CPLR §3025(a), asserting negligence claims against the City, Consolidated Edison Company of New York, Inc. ("ConEd"), Trinity Communications Corp., and En-Tech Corp., alleging that these defendants caused and created the alleged defect or had actual or constructive notice of same (NYSCEF Doc. No. 152 [Compl. at ¶ 70]).
Empire City Subway Company and Trocom Construction Corp. were also named in the complaint but were dismissed from this action pursuant to decisions and orders dated February 7, 2023 and January 2, 2024, granting their motions for summary judgment (See NYSCEF Doc. Nos. 91 and 242).
The City now moves, pursuant to CPLR §3211(a)(7), to dismiss this action on the grounds that plaintiff has not alleged in her notice of claim, amended notice of claim, or complaint that the City had prior written notice of the defect. In the alternative, the City moves, pursuant to CPLR §3212, for summary judgment dismissing plaintiffs complaint on the grounds that the City did not receive the prior written notice of the defective condition required by Administrative Code §7-201 or cause or create the defective condition.
In support of its motion, the City submits: (i) the affidavit of Lorenzo Bucca, an employee for the New York City Department of Transportation ("DOT"), detailing the results of searches of DOT records for the intersection of Essex Street and Rivington Street and the roadway of Essex Street between Delancey Street and Rivington Street for the two-year period prior to and including the date of the subject incident (NYSCEF Doc. No. 162 [Bucca Aff. at ¶¶ 3-5]); and (ii) the records produced by this search-ten permits, three corrective action requests, one notice of violation, nine inspections, four maintenance and repair orders, six complaints, five gangsheets, and two Big Apple Maps (NYSCEF Doc. No. 161 [DOT Records]).
The City also submits the affidavit of Yelena Pasynkova, a DOT employee, Principal Administrative Associate in its Manhattan Street Maintenance Division of Roadway Repairs stating that the four maintenance records (or "FITS" reports) produced-dated September 6,2005, April 22, 2006, May 8, 2006, and March 16, 2007-detailed repairs made to defective conditions at the subject intersection, three of which were in response to citizen complaints, prior to plaintiff s fall (NYSCEF Doc. No. 165 [Pasynkova Aff. at ¶¶ 1-11]).
Plaintiff opposes the motion, arguing that three DOT permits issued to ConEd for work at the subject intersection-permit #M01999211002, issued on July 30, 1999, permit #M01-2001248-045, issued on September 10, 2001, and permit #M01-2003164-065, issued on June 13, 2003-establish the City had prior written notice of this defect. Plaintiff further argues that t corrective action request #1071687 (the "CAR"), issued on July 9, 2006 (in connection with permit #M01-2003164-065,) for the driving lane on Essex Street from Rivington Street, noting that the "trench has multiple sections of cracked and broken out asphalt" (NYSCEF Doc. No. 187) as well as a notice of violation DOT issued to Con Edison on September 12, 2006 (also related to work performed under permit #M01-2003164-065) (the "NOV"), which noted that ConEd "failed to flush wearing course with surrounding area" (NYSCEF Doc. No. 188) constitute prior written acknowledgment of the subject defect by the City.
Finally, plaintiff submits the affidavit of David Chaitovsky, Sidewalk Resolutions' Director of Engineering, in which he asserts that "[t]he subject defect was a hole resulting from a defective trench cut and patch which ran from a Con Edison service box ... to a manhole cover which is also owned by Con Edison" and that "[t]he defective trench cut, and patch was created by Con Edison; based on the permits, and supporting documents that we received" concluding that this "defect was the part of the trench cut ... noted in CAR 1071687 (NYSCEF Doc. No. 187 [Chaitovsky Aff.]). Chaitovsky further asserts that "all of the street opening permits, FITS reports, HIQA inspections made, CAR and violations issued, that the City of New York had prior written notice of the defect that caused Meghan Gonyo to trip and fall" (NYSCEF Doc. No. 187 [Chaitovsky Aff.]).
In reply, the City argues that the CAR and NOV are insufficiently detailed to provide notice of the specific defect at issue here. The City further asserts that a November 20, 2006 inspection (performed in connection with a permit covering the same area as permit #M01-2003164-065) which resulted in a "pass" establishes that the prior CAR and NOV could not have provided prior written notice to the City.
Plaintiff also cross-moves, pursuant to General Municipal Law §50-e(6) and CPLR §3025, for leave to amend her notice of claim and complaint to allege that the City had both prior written notice and prior written acknowledgment of the subject defect. The City opposes the motion, arguing that such amendment is untimely and, under the circumstances, prejudicial. In reply to her cross-motion, plaintiff contends, for the first time, that the November 20, 2006 inspection cited by the City in fact creates an issue of fact as to whether the City received prior written notice or issued a written acknowledgment of the defect.
DISCUSSION
As a threshold matter, plaintiffs cross-motion to amend her complaint is granted. While the complaint failed to allege that the City had prior written notice, it sufficiently pled the City's actual notice of the condition such that amendment sought here is permissible (See Cruzado v City of New York, 80 A.D.3d 537, 538 [1st Dept 2011]).
While new theories of liability are generally not permitted after the expiration of the statute of limitations, prior written notice is not a new theory of liability where, as here, prior pleadings- in this case plaintiffs Amended Complaint-pled actual notice (Cruzado v City of New York, 80 A.D.3d 537, 538 [1st Dept 2011] [no prejudice or surprise where notice of claim, complaint, and bill of particulars alleged actual notice]). Contrary to the City's claim, prior written notice does not need to be alleged in both the complaint and the notice of claim (Figueroa v City of New York, 2023 NY Slip Op 32818[U], 3 [Sup Ct, NY County 2023] citing Perez v City of New York, 193 A.D.3d 432 [1st Dept 2021]). Accordingly, plaintiffs cross-motion to amend her complaint is granted and the City's motion to dismiss the complaint based upon plaintiffs failure to plead prior written notice is denied, and the Court turns to the City's motion for summary judgment.
"The 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 demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]).
Section 7-201 of the Administrative Code of the City of New York provides, in pertinent part, that:
No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous, or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there
was written acknowledgement from the city of the defective, unsafe dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger, or obstruction complained of, or the place otherwise made reasonably safe.(Administrative Code §7-201 [c][2]).
Generally, "the awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident" (Mullen v City of New York, 68 Misc.3d 1210(A) [Sup Ct 2020] citing Vargas v City of New York, 172 A.D.3d 552, 553 [1st Dept 2019] and Jagopat v City of New York. 110 A.D.3d 507, 508 [1st Dept 2013]).
Here, the City has established, through the Bucca and Pasynkova affidavits and the DOT records attached thereto, that it did not receive prior written notice of the defective condition as required by Administrative Code §7-201 (See Gray v City of New York. 195 A.D.3d 538, 538 [1st Dept 2021]). Accordingly, the burden shifts to plaintiff to submit evidence in admissible form that raises a question of fact as to whether the City had prior written notice or, failing that, "demonstrate[s] the applicability of one of two recognized exceptions to the rule-that the [City] affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" (Yarborough v City of New York. 10 N.Y.3d 726, 728 [2008]).
Plaintiff argues that the City's motion should be denied because it failed to meet its prima facie burden in its initial motion papers to establish that it had not issued a prior written acknowledgment of the defect. This argument is not made in good faith. The City failed to address this issue because at the time it made its motion, plaintiff had not yet moved to amend its complaint to assert that the City had made such prior written acknowledgment.
Plaintiff has failed to carry her burden. The work permits cited by plaintiff do not, in and of themselves, establish prior written notice-they were not issued to the City or City contractors and "permits issued to other parties do not show notice of the defective condition" (Haulsey v City of New York, 123 A.D.3d 606, 607 [1st Dept 2014] citing Kapilevich v City of New York, 103 A.D.3d 548 [1st Dept 2013]). Neither can they constitute a prior written acknowledgement (See Id. ["defendant's contention that ... permits issued to Consolidated Edison, and repair orders ... regarding potholes in the vicinity of the accident 19 months earlier satisfied the "written acknowledgment" alternative under Administrative Code § 7-201(c)(2), is unavailing"]). Moreover, neither the CAR or NOV are sufficiently specific to raise a question of fact as to prior written notice or prior written acknowledgment of the particular "hole or divot" that precipitated plaintiffs fall (See Stoller v City of New York, 126 A.D.3d 452, 452 [1st Dept 2015]; Haulsev v City of New York, 123 A.D.3d 606, 607 [1st Dept 2014]). Finally, the November 20, 2006 inspection report is of questionable relevance here and, in any event, does not create an issue of fact as it does not note any defective conditions at the location. As such, it cannot reasonably be construed as demonstration "that the responsible city agency knew of the hazard and had an opportunity to remedy it" (Bruni v City of New York, 2 N.Y.3d 319, 327 [2004]; see also Hogin v City of New York. 103 A.D.3d 419, 420 [1st Dept 2013] [document referring to sinkhole did not demonstrate City's knowledge of condition and danger it presented, where it stated only that inspectors found no such condition]).
Plaintiff has also failed to demonstrate the applicability of an exception to the prior written notice rule. The record contains no evidence to suggest that the City affirmatively caused or created the defect through its own negligence (See Dunn v City of New York. 206 A.D.3d 403, 403-404 [1st Dept 2022]; see also Arzeno v City of New York, 128 A.D.3d 527, 528 [1st Dept 2015], Iv denied 26 N.Y.3d 914 [2015]). To the contrary, plaintiffs expert asserts that the subject defect resulted from a defective trench cut and patch by ConEd.
Accordingly, it is
ORDERED that the City of New York's motion for summary judgment is granted and the complaint and all crossclaims against it are dismissed; and it is further
ORDERED that plaintiffs motion to amend is granted and the Second Amended Complaint in the form annexed to its cross motion (NYSCEF Doc. No. 190) is deemed timely filed and served, nunc pro tunc; and it is further
ORDERED that within thirty days from entry of this order, counsel for the City of New York shall serve a copy of this decision and order, with notice of entry, on the Clerk of the Court (60 Centre St., Room 141B) and the Clerk of the General Clerk's Office (60 Centre St., Rm. 119) who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on this court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that since the City of New York is no longer a party to this action, the Clerk of the Court shall reassign this action to the inventory of a non-City Part.
This constitutes the decision and order of the Court.