Opinion
00 Civ. 8434 (JCF)
April 3, 2002
MEMORANDUM OPINION AND ORDER
This is a personal injury case which is before this Court on the basis of diversity jurisdiction. All three parties have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment. In addition, the plaintiff moves for an order pursuant to Rule 37 of the Federal Rules of Civil Procedure striking the answer of the City of New York (the "City") or precluding it from offering any evidence regarding liability. The parties consented to refer the action to me for all purposes including the determination of dispositive motions pursuant to 28 U.S.C. § 636 (c). For the reasons that follow, the plaintiff's motions are denied and the defendants' motion is granted.
Background
The plaintiff, Rose H. Montenegro, contends that on August 4, 1999, as she was walking on a sidewalk along the north side of West 27th Street between 9th and 10th Avenues in New York City, she tripped and fell over street light mounting bolts. The bolts were protruding vertically two to three inches from the sidewalk. (Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment ("P1. Memo.") at 1; Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def. Memo.") at 1). As a result of the fall, Ms. Montenegro alleges that she suffered several injuries and underwent surgery for a carpal tunnel release. (P1. Memo. at 1; Def. Memo. at 1).
Although all parties intermittently refer to the street in question as "27th Drive," official documents indicate that it is 27th Street.
The plaintiff served a Notice of Claim upon the City of New York on August 26, 1999, and a hearing was held on or about October 19, 1999, as required under New York General Municipal Law § 50-h. (P1. Memo. at 2). On November 3, 2000, the plaintiff commenced the instant action against the City and Petrocelli Electric Co., Inc. ("Petrocelli"), claiming that the defendants were negligent. She subsequently filed an amended complaint in which she specifically alleged that the City owned, managed, and controlled the sidewalk along 27th Street east of Tenth Avenue where she fell. (Amended Complaint ("Am. Compl."), ¶¶ 11, 13-14, 16). She further asserted that the City created the dangerous condition that led to her fall. (Am. Compl., ¶ 20). In addition, the plaintiff claimed that pursuant to a contract with the City, Petrocelli was responsible for the maintenance and repair of the street lights on 27th Street and also was responsible for the defective sidewalk that caused her accident. (Am. Compl., 27-28, 32).
The plaintiff now moves for summary judgment claiming that it is "incontrovertible" that the City owns the sidewalk in question and created the condition that caused her to fall. (P1. Memo. at 5). She further contends that since the City has failed to explain "why, when, how, the street light was removed," this should result "in the strongest presumption against the City." (P1. Memo. at 5).
In the alternative, the plaintiff moves pursuant to Rule 37 of the Federal Rules of Civil Procedure for an order striking the answer of the City or precluding the City from offering evidence because of its failure to cooperate with discovery or to comply with this Court's orders. The defendants cross-move for summary judgment on the basis that they are not the proper parties to the action.
Legal Framework
A. Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenacia v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)).
B. Negligence
In order to prove negligence under New York law, a plaintiff must demonstrate: (1) the existence of a legal duty that the defendant owes to the plaintiff; (2) a breach of that duty; (3) injury; and (4) a reasonably close causal connection between the breach and the resulting harm. See Perrin v. Hilton International, Inc., 797 F. Supp. 296, 299 (S.D.N.Y. 1992); Akins v. Glens Falls City School District, 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 (1981). Furthermore, in order to establish a prima facie case of negligence for injuries sustained as a result of a defective condition, one must prove that the party responsible for maintenance created the dangerous condition which caused the injuries or had either actual or constructive notice of the condition. See Shy v. City of New York, 266 A.D.2d 275, 276, 699 N.Y.S.2d 423, 424 (2d Dep't 1999); Eddy v. Tops Friendly Markets, 91 A.D.2d 1203, 1203, 459 N.Y.S.2d 196, 197 (4th Dep't), aff'd, 59 N.Y.2d 692, 463 N.Y.S.2d 437 (1983).
Discussion
A. City of New York
1. Summary Judgment Motions
In this case, the plaintiff has failed to meet her initial burden of demonstrating "the absence of a genuine issue of material fact" since a dispute exists as to whether the City is a proper party. Celotex, 477 U.S. at 323. The plaintiff has failed to offer any proof that the City owns, maintains, controls, or was responsible for the creation of the defective sidewalk that caused her accident. Rather, Ms. Montenegro simply concludes that 27th Street is City-owned and therefore that the defendant has a nondelegable duty to maintain it in a reasonably safe condition and is liable for injuries resulting from a breach of this duty. (Pl. Memo. at 3).
The plaintiff is correct that liability for injuries sustained on a public sidewalk is generally placed on the municipality. See Hausser v. Giunta, 88 N.Y.2d 449, 452-53, 646 N.Y.S.2d 490, 491 (1996). However, in this case the City has submitted evidence that the sidewalk in question was actually sold to the New York City Housing Authority (the "Housing Authority") in 1941. (Deed L 4447 cp 180 and Deed L 4123 cp 279, attached as Exhs. B C respectively to Affidavit of Debra Engoron dated Dec. 10, 2001 ("Engoron Aff."), attached as Exh. J to Affirmation of Steven Jeffrey Harkavy dated Dec. 10, 2001 ("Harkavy Aff.")). The defendants further support their claim by submitting evidence showing that two City agencies that are frequently responsible for the maintenance of City-owned street lights show no records for the sidewalk on 27th Street. The affidavit of Yvon Roc, the Borough Engineer for Manhattan Street Lights Division of the Department of Transportation, states that the street light on 27th Street is not maintained by the Transportation Department. (Affidavit of Yvon Roc dated Nov. 29, 2001 ("Roc Aff."), attached as Exh. G to Harkavy Aff.). A second affidavit from Vincent Pullo, the Assistant Counsel for New York City Department of Parks and Recreation Capital Projects Division, indicates that the Parks and Recreation Department has no record of any contracts or permits regarding the installation of street lights on 27th Street. (Affidavit of Vincent Pullo dated Dec. 3, 2001 ("Pullo Aff."), attached as Exh. H to Harkavy Aff.). And finally, an affidavit from Michael Meli, the Supervisor of Parks Maintenance and Operations for the Parks and Recreation Department, states that there is no record of any repair orders for street lights on the sidewalk in question for the last two years. (Affidavit of Michael Meli dated Dec. 10, 2001 ("Meli Aff."), attached as Exh. I to Harkavy Aff.).
The New York City Housing Authority is a legal entity separate from the City of New York. See Rosario v. City of New York, 261 A.D.2d 380, 380, 689 N.Y.S.2d 519, 520 (2d Dep't 1999); Pagan v. New York City Housing Authority, 175 A.D.2d 114, 114, 572 N.Y.S.2d 18, 18 (2d Dep't 1991); see also Valentin v. New York City, No. 94 CV 3911, 1997 WL 33323099, at *1 n. 1 (E.D.N.Y. Sept. 9, 1997). Moreover, "[t]he City cannot be held liable for [a] plaintiff's injuries" where it does not "operate, maintain, or control the [area] where the accident occurred." Cruz v. City of New York, 288 A.D.2d 250, 251, 733 N.Y.S.2d 112, 114 (2d Dep't 2001).
Since the plaintiff has failed to show that ownership of the sidewalk is uncontested, her motion for summary judgment is denied. Furthermore, since the plaintiff has failed to respond with any valid evidence showing that the Housing Authority is not the true owner of the property in question, the City's motion for summary judgment is granted.
2. Sanctions Motion
In the alternative, the plaintiff moves to strike the City's answer or preclude it from offering evidence regarding liability pursuant to Rule 37 of the Federal Rules of Civil Procedure. Rule 37 authorizes the court to impose sanctions for a party's failure to cooperate in discovery. Possible sanctions include an order striking out pleadings and an order prohibiting the disobedient party from introducing evidence in support of its position. See Fed.R.Civ.P. 37(b)(2)(B) (C).
In this case, the plaintiff alleges that the City was "continuously derelict in its duty to cooperate with counsel and the Court" during discovery. (Pl. Memo. at 9). Specifically, the plaintiff contends that the City failed to produce a representative when depositions were taken on October 16, 2001, and that the only document the plaintiff received during discovery was a one-page search result sheet, indicating that the City had no records for the subject street light on 27th Street. (Pl. Memo. at 9). The plaintiff further complains that the City failed to respond to interrogatories or to requests for documentation that would explain "what happened to the lamp post, who removed it, why it was removed, who removed the bolts, and patched the holes from the protruding bolts." (Pl. Memo. at 9).
Since the Housing Authority is apparently the true owner of the sidewalk in this case, it is understandable that the City could produce no documents explaining the removal of the street lamp. Indeed, the City did respond by producing that which it had — a statement from the Department of Transportation indicating that a search for records of 27th Street between 9th and 10th Avenues produced no evidence of any applications, permits, repair orders, violations, contracts, resurfacing orders, or complaints for the area two years prior to the accident. (Department of Transportation Search Result dated June 18, 2001, attached as Exh. J to Affirmation of Abram I. Bohrer dated Nov. 29, 2001).
The City indeed failed to produce a representative for deposition and to answer interrogatories. However, in support of its motion for summary judgment it has submitted affidavits verifying that neither the Department of Transportation nor the Department of Parks and Recreation has any records relating to street light construction or repairs in the vicinity of the accident. (Roc Aff.; Pullo Aff.; Meli Aff.). Accordingly, it is clear that the City neither possesses the information to respond substantively to the plaintiff's interrogatories nor could present a deponent with relevant knowledge. Thus, although the City should have made these representation in formal discovery responses rather than deferring until dispositive motions were made, no sanctions are warranted.
B. Petrocelli Electric Co., Inc.
Petrocelli's motion for summary judgment is also granted since the plaintiff has failed to offer any evidence that this defendant maintained or repaired the defective sidewalk. Petrocelli has submitted an affidavit from David Ferguson, Director of Outside Operations, denying that Petrocelli performed any work around the subject location for two years prior to and including the date of the accident. (Affidavit of David Ferguson dated Oct. 15, 2001, ¶¶ 4-7, attached as Exh. E to Harkavy Aff.). This assertion is consistent with Mr. Ferguson's deposition testimony. (Deposition of David Ferguson dated Oct. 16, 2001, ("Ferguson Dep.") at 8, attached as Exh. F to Harkavy Aff.). Mr. Ferguson also stated that Petrocelli has a contract with the City only to maintain street lights owned by the Department of Transportation. (Ferguson Dep. at 12-13). The plaintiff does not dispute this fact nor offer evidence to suggest that Petrocelli has a similar contract with the Housing Authority to provide maintenance for its street lamps.
Since the plaintiff has failed to submit sufficient evidence to raise a triable issue of fact as to whether Petrocelli was a proper party to the action, this defendant is also entitled to summary judgment.
Conclusion
For the reasons stated above, the defendants' motion for summary judgment is granted and the plaintiff's motions are denied. The Clerk of the Court shall enter judgment dismissing the complaint.
SO ORDERED.