Opinion
150018/06.
Decided May 22, 2008.
Defendants City of New York and Petrocelli Electric Co. Inc.'s motion for summary judgment pursuant to CPLR § 3212 is granted in part and denied in part, as discussed further below.
This action was commenced by plaintiffs Benjamin Kohn and Alexis Asher ("plaintiffs") to recover for injuries allegedly suffered as the result of a vehicle collision. The material facts are contained in the parties' motion papers and are not in dispute, except as noted below. Plaintiffs were passengers in a taxicab driven by defendant Michellea Boston ("Boston") and owned by defendant Dandy Dan, Inc. ("Dandy Dan"), when the taxicab was struck by another taxicab driven by defendant Alex Sasu ("Sasu") and owned by defendant TOT Service Corp. ("TOT") and/or defendant Billy's Taxi Repair ("Billy's"). The collision occurred on June 29, 2006 between 9:30 and 9:45 p.m. at the intersection of East 23rd Street and Lexington Avenue, New York, New York, where the traffic signal was malfunctioning. According to the police report, the records of Petrocelli's repair crew, the New York City Department of Transportation Traffic Bureau records of citizen calls, and most of the party deposition testimony, the traffic control device at the subject intersection was completely non-functioning, with no lights illuminated and the pedestrian signals not working. The Department of Transportation transmitted notice of a citizen complaint to that effect at 7:55 p.m., in addition to four other complaints it received throughout the evening of June 29, 2006. Defendant Sasu, however, testified that the traffic signal was green for him when he approached the intersection, and disputes that all the traffic lights were out.
Defendants City of New York ("City") and Petrocelli Electric Co. ("Petrocelli") now move for summary judgment dismissing plaintiff's claims and all cross-claims as against each of them, contending that, 1) Petrocelli did not owe a duty to plaintiffs, members of the general public; 2) the traffic signal malfunction was not the proximate cause of plaintiffs' injuries; 3) the City did not breach any duty owed to the general public; and 4) the City did not receive notice of the malfunction within a reasonable period of time in which to correct the malfunction prior to the collision. Plaintiffs submit opposition to the motion, as do defendants Dandy Dan, Boston, Sasu, TOT, and Billy's.
In support of their motion for summary judgment, the City and Petrocelli submit: 1) plaintiffs' summons and complaint; 2) the City's and Petrocelli's answers, with cross-claims; 3) plaintiffs' bill of particulars; 4) the contract between the City and Petrocelli; 5) an Intersection History Report for 30 days prior to and including the day of the accident; 6) Petrocelli Traffic Signal Maintenance Repair Reports for each of the five notices received by Petrocelli regarding the subject traffic signal malfunction; 7) the affidavit of David Ferguson, Project Director of Outside Electrical Installations for Petrocelli; 8) the police accident report of the accident; 9) a portion of defendant Sasu's EBT testimony; 10) a portion of plaintiff Kohn's EBT testimony; 11) a portion of plaintiff Asher's EBT testimony; 12) a portion of defendant Boston's EBT testimony; and 12) a portion of defendant Petrocelli's EBT testimony, by David Ferguson.
In their opposition to the motion, plaintiffs submit: 1) the police accident report; 2) four portions of defendant Boston's EBT testimony; 3) one of the Petrocelli Traffic Signal Maintenance Repair Reports; and 4) three portions of defendant Sasu's EBT testimony. With their opposition, defendants TOT, Sasu and Billy's submit the complete EBT transcripts of defendants Sasu's and Boston's EBT testimonies. In opposition to the motion, defendants Dandy Dan and Boston submit a portion of Petrocelli's EBT testimony by David Ferguson.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact. ( Alvarez v Prospect Hosp., 68 NY2d 320). Once the movant has made such a showing, the burden then shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action. ( Zuckerman v City of New York, 49 NY2d 557).
Petrocelli first contends that, since its duty was contractual and only the City of New York was a party to the contract, it cannot be liable to plaintiffs or co-defendants for any alleged breach of its contractual duty to the City.
As a general principal, it is well-settled that "a duty directly assumed to benefit one person does not extend to third parties who are not intended beneficiaries of the undertaking to perform, even if it is foreseeable that someone else might be damaged by the nonfeasance." ( Francois v New York City, 161 AD2d 319, 320 [1st Dept 1990]). The Court of Appeals long ago held that a member of the public may not maintain an action against an entity who contracts with a municipality, unless the contract demonstrates an intention to make such contractor answerable to individual members of the public. ( H.R. Moch Company, Inc. v Rensselaer Water Company, 247 NY 160). To allow such an action to be maintained would extend an involuntary duty to "an indefinite number of potential beneficiaries." ( H.R. Moch Company, Inc. V Rensselaer Water Company, id. at 168).
Co-defendants Dandy Dan and Boston argue that the Court of Appeals has held that a contractor can, in some cases, have a duty of care to individuals injured by its action or inaction, even where such individual was not a party to the contract. However, the cases cited by Dandy Dan and Boston are distinguishable from the matter at hand. In both Palka v Servicemaster, 83 NY2d 579 (1994) and Espinal v Melville Snow Contractors, 98 NY2d (2002), the defendants contracted to perform services with private entities, not municipalities. Although the defendant in Uvaydova v W.P. Weslbach Electric, 275 AD2d 776 (2d Dept 2000), was hired by the City of Yonkers to, inter alia, install a temporary pedestrian signal, the court found that a duty to ensure the safety of the public was explicitly included in the contract, as the work was part of a larger construction project. Finally, in Davilmar v City of New York , 7 AD3d 559 (2d Dept 2004), the court did not stray from the principal established by the Court of Appeals in H.R. Moch Company, Inc., but rather discussed an exception to that rule not applicable here. The Davilmar court explained that, "(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm' . . .; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, . . . and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely," the contractor may be held liable for injuries proximately caused by such conduct. ( Davilmar v City of New York , 7 AD3d 559 [2d Dept 2004]). The court in Davilmar held that "negligent repair of a traffic light may fall within the first exception for launching a force or instrument of harm." ( Id. at 560). However, there is no evidence, nor does any party make the argument, in the instant action that any repair work was done to the subject traffic light for at least 30 days prior to and including the date of the collision, let alone that Petrocelli "fail[ed] to exercise reasonable care in the performance of [its] duties, launch[ing] a force or instrument of harm. . . .'" ( Id. at 560).
While plaintiffs and defendants TOT, Sasu and Billy's oppose the City's motion for summary judgment, they submit no opposition to Petrocelli's motion for summary judgment. As Petrocelli has met its burden of making a prima facie showing of entitlement to judgment as a matter of law, and defendants Dandy Dan and Boston have failed to raise a material issue of fact necessitating trial, its motion for summary judgment dismissing plaintiff's claims as against it must be granted.
That portion of the parties' motion for summary judgment dismissing all cross-claims against them is addressed at the end of this decision and order.
The City moves for summary judgment dismissing plaintiff's claims against it and all cross-claims, contending that 1) the traffic signal malfunction was not the proximate cause of plaintiffs' injuries; 2) the City did not breach any duty owed to the general public; and 3) the City did not receive notice of the malfunction within a reasonable period of time in which to correct the malfunction prior to the collision. Specifically, the City argues that, where both drivers were aware of the traffic signal malfunction and the need to exercise caution, the traffic signal cannot be found to be the proximate cause of the collision. Further, New York Vehicle and Traffic Law § 1117 provides that drivers approaching an intersection with a malfunctioning signal shall treat the intersection as a four-way stop and yield the right-of-way accordingly. Finally, according to the City, it did not have notice within a reasonable period of time in which to act before the collision.
In Minemar, et al. v Khramova, et al., the Appellate Division, Second Department held that, where the plaintiff driver was fully aware of the malfunctioning traffic light and the consequent need to exercise caution in proceeding through the intersection, any negligence on the part of the City in maintaining the traffic light was not the proximate cause of the accident.
The parties have cited to, and the Court has found, no published Appellate Division, First Department cases which deal squarely with this issue of proximate cause.
( 29 AD3d 750, 751). In Minemar, the plaintiff stopped at a malfunctioning traffic light, waited for approximately 30 to 60 seconds, looked down the one-way street for approaching traffic and, seeing none, proceeded into the intersection where his car was struck by another vehicle. In another case, Rubinfeld v City of New York, the Appellate Division, Second Department reversed a decision of the trial court, which denied the City's post-trial motion to dismiss. ( 263 AD2d 448). The plaintiff in Rubinfeld was a pedestrian who was struck by a vehicle as she crossed an intersection in which the "walk/don't walk" signal was not functioning. As in Minemar, the plaintiff noted that the light was not working, looked in both directions of traffic, and crossed the street, where she was struck by an approaching vehicle. ( Rubinfeld v City of New York, supra). The Rubinfeld court wrote,
Defendants TOT, Sasu and Billy's spend a good deal of time discussing the lower court's decision in Minemar ( 2005 WL 6061334 [NY Sup. Ct. 2005]), which denied a motion for summary judgment by the City, "holding that it failed to provide proof demonstrating to the court that the intervening acts of the plaintiff and defendant were the sole superseding cause of the accident. (Affirmation in Opposition, ¶ 19). However, as discussed here, that decision was overturned by the Appellate Division and is, therefore, no longer good law.
Under these circumstances, we conclude that the inoperative status of the "walk/don't walk" signal was not the proximate cause of [Plaintiff's] accident and thus there is no basis for liability against the defendant City of New York. Although the issue of proximate cause is generally one to be determined by the finder of fact, it is the function of the court to determine if a prima facie case of causation has been established in the first instance. Moreover, it is well settled that to establish a prima facie case, a plaintiff must show that "defendant's negligence was a substantial cause of the events which produced the injury."
( Rubinfeld v City of New York, 263 AD2d at 450 [internal citations omitted]; see also Bisceglia v International Business Machines, 287 AD2d 674 [2nd Dept. 2001] [where the drivers were familiar with the intersection and testified that the malfunctioning light did not confuse them, the traffic signal was not the proximate cause of the accident]). This position has also been adopted in unpublished New York County Supreme Court decisions in the matter Lawrence v City of New York (Index No. 107203/99, Decision and Order [Sup. Ct. NY Co. July 10, 2007] [Smith, J.]) and in Mena v City of New York (Index No. 109978/04, Decision and Order [Sup. Ct. NY Co. September 8, 2006] [Rakower, J.]).
However, unlike in the above-mentioned cases, the evidence here is not conclusive and precludes a finding that the malfunctioning traffic signal was not the proximate cause of the collision. The City fails to establish, through submission of admissible evidence, that both drivers were aware of the malfunctioning traffic signal, and therefore fails to make a prima facie showing of entitlement to judgment on the basis of proximate cause. The records maintained by Petrocelli, hired to perform repair work on the traffic signal, show that no complaints regarding that intersection were made for at least 30 days prior to the collision, until less than two hours before the collision. Further, no repairs were conducted or other work performed on the intersection's traffic control devices for the same period of time. The records show that the City received a total of five complaints that the traffic signal was completely out the night of the collision. Upon arriving at the intersection, Petrocelli's employee noted that the signal was out in all directions. In her deposition testimony, defendant Boston, who was driving the taxicab transporting plaintiffs, stated that she noticed the traffic signal was out nearly a block before entering the intersection, and that she came to a stop at the intersection and proceeded with caution. However, the City fails to introduce any evidence regarding whether defendant Sasu, the driver of the other taxicab, was aware of the malfunctioning traffic signal and the need to exercise caution. In fact, as he points out in his opposition to the motion, defendant Sasu testified at his deposition that as he approached the intersection, he had a green light and was unaware that defendant Boston had no signal. While Sasu's testimony is not consistent with the findings of the Petrocelli employee who responded to the scene well after the collision occurred, this Court is not prepared to say that it is incredible as a matter of law. Therefore, an issue of fact remains as to whether the traffic signal malfunction was a proximate cause of the collision.
The City also moves for summary judgment contending that, as traffic control is a governmental function, it may not be held liable to plaintiffs unless plaintiffs can demonstrate that a "special relationship" between themselves and the City existed, thereby creating an individual duty to plaintiffs, which the City contends plaintiffs cannot establish.
It is well settled that a municipality bears no liability for negligent performance of governmental functions by its agents, absent the existence of a special relationship between the injured party and the municipality. ( Kircher v City of Jamestown, 74 NY2d 251; Cuffy v City of New York, 69 NY2d 255). Although several parties cite to cases in which a municipality or other government entity has been held liable in support of the proposition that a special relationship need not have been established between the City and the injured party, reference to these cases demonstrates a misunderstanding of the law of governmental immunity as it pertains to municipalities. The Court of Appeals has stated that "to sustain liability against a municipality, the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of a duty to use due care for the benefit of particular persons or classes of persons.'" ( Florence v Goldberg, 44 NY2d 189, 195; quoting Motyka v City of Amsterdam, 15 NY2d 134, 139; citing Evers v Westerberg, 38 AD2d 751 [2nd Dept 1972], aff'd 32 NY2d 684). Those activities aimed at the public at-large, rather than an individual or specific class of individuals, are considered governmental functions and are protected from liability by governmental immunity. ( See Florence v Goldberg, supra). Certain municipal government activities have been specifically held by the courts to be governmental functions cloaked in immunity absent a special relationship between the municipality and the injured party. "Like crime prevention, traffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers." ( Balsam v Delma Engineering Corp., et al., 90 NY2d 966; see also Florence v Goldberg, supra). As such, in order for an injured party to hold a municipality liable for negligently performing traffic control or traffic regulation functions, the party must demonstrate that a special relationship existed between it and the municipality.
The elements of a "special relationship" are:
1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2) knowledge on the part of the municipality's agents that inaction could lead to harm; 3) some form of direct contact between the municipality's agents and the injured party; and 4) the injured party's justifiable reliance on the municipality's affirmative undertaking.
Plaintiffs have not alleged or submitted any evidence to indicate that the City established a "special relationship" with them or with any of the co-defendants. Rather, plaintiffs contend that the City is liable here, irrespective of the "special relationship" rule, because it had actual or constructive notice of the malfunctioning traffic signal with sufficient time to either repair the signal or assign a traffic officer to direct traffic at the intersection. There is no evidence, in admissible form or otherwise, to indicate that the City had any notice prior to the time it notified Petrocelli of the outage, less than two hours prior to the collision. However, even if the City had actual or constructive notice of the malfunctioning traffic signal and failed to provide police or other City personnel to direct traffic in the intersection, such notice does not defeat the requirement that there be a "special relationship" between plaintiff and the City in order for the City to be liable for her injuries. ( See Cuffy v City of New York, 69 NY2d 255). As such, plaintiffs and the opposing co-defendants have failed to raise a material issue of fact requiring trial to defeat the City's motion on this ground.
Finally, while both Petrocelli and the City seek dismissal of all cross-claims as against it, neither party submits the pleadings in which cross-claims are asserted against them, as mandated by CPLR § 3212. Without the relevant pleadings, the Court is unable to ascertain what the cross-claims are or whether the moving defendants have met their burden. Therefore, any cross-claims against Petrocelli and the City remain, with leave to file a motion for summary judgment on them within 45 days of the date of this decision and order.
Accordingly, it is;
ORDERED that the portion of the motion by the City of New York seeking summary judgment dismissing plaintiffs' claims as against it is granted; it is further
ORDERED that the portion of the motion by the City of New York seeking summary judgment dismissing all cross-claims as against it is denied with leave to resubmit within 45 days of today's date; it is further
ORDERED the portion of the motion by Petrocelli Electric Co., Inc., seeking summary judgment dismissing plaintiffs' claims as against it is granted; it is further
ORDERED that the portion of the motion by Petrocelli Electric Co., Inc., seeking summary judgment dismissing all cross-claims as against it is denied with leave to resubmit within 45 days of today's date; it is further
ORDERED that movant serve a copy of this decision and order, together with notice of entry hereof, upon the Clerk of the Court (60 Centre Street) and the Clerks of the DCM Office (80 Centre Street) and the Trial Support Office (60 Centre Street), within 30 days of entry hereof; it is further
ORDERED that movant serve a copy of this decision and order, together with notice of entry hereof, upon all parties within 15 days of entry hereof; it is further
ORDERED that the parties appear for an early settlement conference on May 29, 2008 at 9:30 a.m. with J.H.O. Leibovitz (80 Centre Street), as previously scheduled.
The foregoing constitutes the decision and order of this court.