Opinion
2013-02-5
David R. HOGIN, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant–Respondent, Consolidated Edison Company of New York, et al., Defendants. [And a Third–Party Action].
Downing & Peck, P.C., New York (John M. Downing, of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.
Downing & Peck, P.C., New York (John M. Downing, of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.
FRIEDMAN, J.P., DeGRASSE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 9, 2011, which granted defendant City of New York's motion for summary judgment dismissing the complaint and all cross claims as against it, and denied plaintiffs' cross motion to strike the City's answer, unanimously affirmed, without costs.
The documentation of various complaints made to the Department of Environmental Protection and repairs made by the Department of Transportation do not constitute “written acknowledgment” of the alleged sinkhole condition that caused plaintiff David Hogin's fall (Administrative Code of City of N.Y. § 7–210[c][2]; see Bruni v. City of New York, 2 N.Y.3d 319, 778 N.Y.S.2d 757, 811 N.E.2d 19 [2004] ).Only one of the documents refers to a sinkhole, but that document does not demonstrate that the City “had knowledge of the condition and the danger it presented” ( Bruni, at 326–327, 778 N.Y.S.2d 757, 811 N.E.2d 19). Indeed, it states that the inspectors found no such condition. Moreover, the record is devoid of evidence that the City caused or created the condition by an affirmative act of negligence ( see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008];Rosenblum v. City of New York, 89 A.D.3d 439, 931 N.Y.S.2d 326 [1st Dept. 2011] ).
Supreme Court also properly denied plaintiffs' cross motion. Although the City was recalcitrant or tardy with respect to complying with certain discovery directives, striking its answer would have been too severe a sanction under the circumstances ( see e.g. Frye v. City of New York, 228 A.D.2d 182, 182–183, 643 N.Y.S.2d 90 [1st Dept. 1996] ). Moreover, the documents and testimony plaintiffs sought would not overcome their inability to demonstrate prior written notice or acknowledgment, nor would it show that the City caused or created the condition ( see Flores ex rel. Hernandez v. Cathedral Props. LLC, 101 A.D.3d 432, 955 N.Y.S.2d 324 [1st Dept. 2012] ).
We have considered plaintiffs' remaining arguments and find them unavailing.