Opinion
114987/2001.
March 6, 2009.
White, Fleischner Fino, LLP, By Dan Mcstcrman, Esq., New York, NY, for the plaintiff's.
Ccrussi Spring, By Greg Ribreau, Esq., White Plains, NY, for Defendant Westmoreland.
Michael A. Cardozo, Esq, Corporation Counsel, New York, NY, for Defendant The City of New York.
Law Offices of James J. Toomey, By Dwentie E. Paul, Esq., New York, NY, for Defendant Triumph.
London Fischer, LLP, By John R. Beattic, Esq., New York, NY, for Defendant Felix.
Richard W. Babinccz, By John M. Fox, Esq., New York, NY, for Defendant Consolidated Edison.
DECISION AND ORDER
Papers and exhibits considered in review of the motions:
Felix's Notice of Motion 1 Memorandum of Law in Support of Motion 2 plaintiff's Affirmation in Opposition 3 Westmoreland's Affirmation in Opposition 4 Reply Affirmation 5 Westmoreland's Notice of Motion 6 Memorandum of Law in Support of Motion 7 plaintiff's Affirmation in Opposition 8 Reply Affirmation 9 City's Notice of Motion 10 Westmoreland's Affirmation in Opposition 11 Con Ed's Notice of Motion 12 plaintiff's Affirmation in Opposition 13This is an action for injuries allegedly sustained by plaintiff when he was caused to fall by a defect in the public roadway while crossing the street. All defendants, except defendant Triumph Construction Corporation, move for summary judgment to dismiss the complaint and all cross-claims against them. Triumph Construction Corporation has cross-moved, without indicating which of the motions it is cross-moving against, to renew a prior motion for summary judgment that was denied by the Hon. Paul Feinman on September 12, 2007. Pursuant to CPLR 2221(a), the cross-motion is hereby being referred to Justice Feinman by separate interim order and is thus being severed from the motions.
Factual and Procedural Background
Plaintiff alleges that on May 17, 2000, he was injured while crossing Water Street as a result of falling in a pothole in the roadway near the intersection of Water Street and Cocnties Slip, New York, New York. At his deposition, plaintiff testified that he fell in front of 55 Water Street, that the pothole that caused him to fall was located near the intersection of Water Street and Coenties Slip, and that the pothole was eight to ten inches in diameter, several inches deep, approximately sixteen feet eight inches from the east side curb of Water Street, sixteen feet ten inches from the north edge of the crosswalk at Coenties Slip and Water Street, and thirteen feet four inches from the double yellow line on Water Street. 55 Water Street is a large office building which occupies the entire city block of Water Street between Coenties Slip and Old Slip. Plaintiff testified that he did not sec the pothole prior to the date of the accident nor did he look down at the roadway before crossing. No portion of the street was blocked by construction or otherwise obstructed at the time of plaintiffs accident and plaintiff was not crossing the street at a designated crosswalk.
Plaintiff commenced this action on July 30, 2001, by summons and complaint alleging negligence against the City of New York ("the City"), Felix Equities, Inc. ("Felix"), Westmoreland Construction, Inc. ("Westmoreland") and Triumph Construction Corporation, in that these parties caused or created the defective road condition which lead to his accident and injury. Plaintiff commenced a subsequent action against Consolidated Edison Company of New York, Inc. ("Con Ed"), which was consolidated with the preexisting action on June 23, 2006. The co-defendants subsequently asserted cross-claims of common law indemnification and contribution against each other and Con Ed brought an additional cross-claim of contractual indemnification against Felix. Westmoreland, Felix, the City and Con Ed now move for summary judgment to dismiss the complaint and all cross-claims asserted against them.
I. Westmoreland's Motion for Summary Judgment
Defendant Westmoreland is a small general contractor that at the time of plaintiff's accident had less than twenty employees. Westmoreland moves for summary judgment arguing that there is no evidence that it performed work at 55 Water Street or that any of its work resulted in the hazardous condition which allegedly caused plaintiff's injuries. Westmoreland further argues that summary judgment is appropriate as the evidence indicates that numerous other entities performed work at the exact location of plaintiff's accident after Westmoreland performed work a block away and that it did not have actual or constructive notice of the condition. Plaintiff opposes the motion and contends that Westmoreland has failed to prove that it did not create the condition, and that issues of fact remain regarding the location of Westmoreland's work and its negligence.
Westmoreland, in support of its motion, has produced three permits for work it conducted in the area surrounding plaintiff's accident, permits for work conducted at or near plaintiff's accident location by co-defendants, and the deposition testimony of Michael Paletta, Westmoreland's President and General Superintendent. The first permit introduced by Westmoreland, number M01-1998310-018, authorized conduit construction to install fiberoptic ducts in the roadway and sidewalk on Water Street from Hanover Square to Old Slip. This permit authorized work from November 7, 1998 through November 23, 1998, and specified the location for the work as "Water St. B/T Coenties Slip and Hanover St aka 7 Hanover Street." The second and third permits, authorizing work from February 27, 1998 to March 26, 1998, both authorized Westmoreland to conduct conduit construction to install fiber optic ducts on Broad Street from South Street to Water Street and on Water Street from Broad Street to Coenties Slip, respectively. The specific location provided for both permits is MCI Metro, which Westmoreland states is located at 4 New York Plaza.
Michael Paletta stated in his deposition testimony that he could not determine where the first permit authorized Westmoreland to work or whether work was done pursuant to this permit. Mr. Paletta, in fact, said that the permit "seems a little contradictory . . . So, no, looking at this, I can't tell where this location was exactly and I don't recall." After he was presented with a picture of the site of plaintiff's accident, including a manhole cover in the near proximity of the site, Mr. Paletta recognized this manhole as a sewer manhole and stated that Westmoreland has not been involved in any jobs involving sewers since either 1996 or 1998. All other deposition testimony submitted indicates that work was conducted by the co-defendants in and around 55 Water Street during and after Westmoreland worked in the area.
The initial burden in a motion for summary judgment is on the moving party to establish that there are no material issues of fact in dispute and that it is entitled to judgment as a matter of law. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985); GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965,967 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Failure to make such a showing requires the court to deny the motion, regardless of the sufficiency of the opposing papers. Winegrad at 853.
In a negligence action stemming from a defective roadway condition, a contractor's liability hinges on whether it caused or created the defective condition which resulted in the accident, See Melcher v. City of New York, 38 AD3d 376, 377 (1st Dept 2007). Westmoreland asserts that there is no evidence connecting its work to the site of plaintiff's injury, and thus the case must be summarily dismissed against it. See Robinson v. City of New York, 18 AD3d 255, 256 (1st Dept 2005).
Summary judgment is a "drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue." Moskowitz v. Oarlock, 23 AD2d 943, 944 (3d Dept 1965). The specified location in the first permit creates uncertainty and confusion as to where Westmoreland was authorized to work. Upon reviewing a map provided in the motion papers, it appears that the area between Coenties Slip and Hanover Square on Water Street includes the location of plaintiff's accident, while the area between Water Street from Hanover Square to Old Slip does not. The permit, therefore, is inconclusive as to where Westmoreland was authorized to work. The testimony of Mr. Paletta also did not clarify where and if work was performed pursuant to the first permit. Additionally, Mr. Paletta did not conclusively establish the last date Westmoreland conducted road repairs related to sewers. Thus, the fact that the hole at issue is located next to a sewer manhole does not rule out that it was created by Westmoreland's work under the first permit. Under the circumstances, it must be concluded that Westmoreland has failed to satisfy its burden of establishing that no issue of material fact exists regarding its role in causing or creating the hazardous condition. Based the evidence submitted, a trier of fact could still reasonably infer that Westmoreland was granted a permit for and did perform work at the location of plaintiff's injury. The end result is that Westmoreland is not entitled to summary dismissal of the claims against it. See Flores v. City of New York, 29 AD2d 356, 359 (1 st Dept 2006); see Dollas v. Grace Co., 225 AD2d 319, 325 (1996) (holding that it is the duty of the trier of fact to weigh the value of the presented evidence and resolve any outstanding conflicts between plaintiff's allegations and the documentary evidence).
II. Felix's Motion
A. Summary Judgment to Dismiss the Complaint
Felix was a utility contractor that conducted work in the New York City area through September 2003. Plaintiff alleges that Felix, through its negligence, caused or created the dangerous condition which lead to plaintiff's accident. In support of its motion for summary judgment, Felix argues plaintiff failed to raise a material issue of fact demonstrating that Felix performed work at the location of Plaintiff's alleged accident. Specifically, Felix asserts that the permits issued by the City to Felix do not demonstrate that Felix performed work on the block where plaintiff's accident occurred and that the picture of the defective roadway does not correspond to the type of work or location which the permits authorized. Plaintiff opposes the motion arguing that Felix has failed to make a prima facie showing that it did not create the defect and generally that a triable issue of fact exists regarding whether Felix proximately caused the defective condition.
In support of its motion, Felix submits two permits issued to it by DOT and the deposition testimony of its former management consultant. The submitted permits authorized Felix to open the roadway and/or sidewalk at 55 Water Street, between Coenties Slip and Old Slip, from September 23, 1998 through November 23, 1998, and September 26, 1998 through November 26, 1998, each for a maximum of one-hundred feet. Felix contends that the diagrams attached to the permits displaying the projected work indicate work different from that evidenced by the photographs of the accident location. Although the permits are inconclusive as to whether Felix performed work at this location, and Felix does not concede that work was completed under these permits, they give rise to a material issue of fact as to whether Felix performed the work authorized by the permits and whether the work depicted in the pictures corresponds with that performed by Felix. The testimony of Matthew Verkuilen, Felix's former employee, was inconclusive as to whether work was actually performed pursuant to the permits or if further documentation confirming Felix's fulfillment of the permits is available.
As discussed above, the moving party in a summary judgment motion has the burden of establishing that no material issues of fact are in dispute and that it is entitled to judgment as a matter of law. Winegrad at 851; GTF Mktg. at 967; Zuckerman at 562. To be granted summary dismissal in this negligence action, Felix must therefore establish that no issue of fact exists regarding whether it created the defective condition which caused the accident. Felix has failed to meet its prima facie burden of proving that no issue of material fact exists regarding its role in creating the defective condition. See Clark v. City of New York, 43 AD3d 419 (2d Dept 2007). Though not conclusive, the permits, through their indication that Felix was authorized to perform roadway construction in front of 55 Water Street between Coentics Slip and Old Slip, create an issue as to the location of Felix's work. Additionally, although Felix contends that the shape of the trench and the type of work it performed were not the same as that documented in the pictures of the accident location, this remains a factual issue to be resolved by the trier of fact and not one that the court can conclusively determine as a matter of law. These outstanding issues and Felix's failure to meet its initial burden require that Felix's motion for summary judgment be denied. See Winegrad at 853. B. Summary Judgment as to Cross-Claims
Felix also moves for summary judgment to dismiss Con Ed's cross-claims of contractual indemnification and breach of insurance procurement obligations, as well as all claims of common law contribution and indemnification brought by co-defendants. Because Con Ed does not oppose the portion of Felix's motion concerning its claims of contractual indemnity and breach of insurance, summary judgment will be granted to Felix as to those claims alone.
The motion for summary judgment to dismiss all cross-claims of common law indemnification and contribution is denied. Felix bases its entitlement to judgment in this regard on the argument that it cannot be subject to liability since it did not cause or contribute to plaintiff's accident. See CPLR § 1401; see also Trustees of Columbia v. Mitchell/Giurgola, 109 AD2d (1st Dept 1985). As held above, issues of fact exist such that this court cannot conclude as a matter of law that Felix was not responsible for the defect that caused plaintiff's accident.
III. The City of New York's Motion for Summary Judgment
The City moves for summary judgment to dismiss the complaint based on plaintiff's failure to comply with § 7-201(c)(2) of the Administrative Code of New York City requiring prior written notice of the defective condition. Prior written notice is a condition precedent which a plaintiff must affirmatively plead and prove to maintain an action against the City for injuries stemming from dangerous conditions in City streets or sidewalks. Administrative Code § 7-201 (c)(2); see Katz v. City of New York, 87 NY2d 241, 243 (1995); see also Becker v. City of New York, 131 AD2d 413, 415 (2d Dept 1987). Where the City establishes that it lacked prior written notice of the alleged defect, "the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule that the municipality 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 NY3d 726, 728 (2008). In order for the City to be liable under the cause and create exception to the rule, the City's affirmative negligence must "immediately result in the existence of a dangerous condition." Id.; Fernandez v. City of New York, 19 Misc3d 1135 (A) (Sup Ct, Kings County 2008).
In his complaint, plaintiff alleges that the City created the defective condition through its negligent repair of the pothole at 55 Water Street and had notice of the condition prior to the accident. Plaintiff, however, does not oppose the City's motion and offers no proof that the City had notice of the condition or that one of the exceptions to the notice requirement apply. Westmoreland, the only party who objects to the City's motion, asserts that the motion should be denied because an issue of fact exists regarding whether the City had notice of or created the defective condition. Regarding notice, Westmoreland contends that the lone civilian complaint of a pothole in need of repair and the fourteen permits and three applications for pothole repairs at 55 Water Street are sufficient to satisfy the notice requirement. However, neither citizen complaints made to the Department of Transportation (also known as FITS reports) nor permits for street excavation provide the requisite notice to the City pursuant to Administrative Code § 7-201(c)(2). See Lopez v. Gonzalez, 44 AD3d 1012 (2d Dept 2007); see also Meltzer v. City of New York, 156 AD2d 124 (1989); see also Levbarg v. City of New York, 282 AD2d 239, 241 (1st Dept 2001); Gee v. City of New York 304 AD2d 615, 617 (2d Dept 2003). No additional evidence or affidavits were presented to satisfy plaintiff's burden of pleading and proving notice. See Becker at 415.
Westmoreland also argues that even if the City lacked written notice, the cause and create exception to the written notice requirement is applicable and allows the City to maintain liability even though it lacked written notice. This exception requires Westmoreland to demonstrate that the City created the dangerous condition through an affirmative act of negligence in the repair or construction of the roadway which immediately resulted in the existence of the condition. Yarborough at 728. Westmoreland fails to meet this burden. The only evidence presented to support this contention is the testimony of Michael Paletta, President and General Superintendent of Westmoreland, wherein he states that the defect was not brand new and that the asphalt surrounding the condition demonstrated signs of deterioration. No evidence or testimony was presented establishing if the City was the last entity to pave this section of Water Street prior to plaintiff's accident or if the defect was the result of negligence or deterioration over time. As a result, Westmoreland has failed to demonstrate a triable issue of fact as to the applicability of an exception to the notice requirement and therefore cannot withstand summary judgment. Id. Oboler v. City of New York, 8 NY3d 888, 889 (2007).
IV. Con Ed 's Motion for Summary Judgment
Con Ed moves for summary judgment to dismiss the complaint and all cross-claims on the ground that plaintiff has not establish a prima facie case of negligence as no evidence was presented that Con Ed caused or contributed to the defect. In support of its position, Con Ed submits the testimony of Roger LeGoff, a former associate chief investigator for Con Ed, two reports for street openings by Con Ed listed as Plaintiff's Exhibits 6 and 7, and the affidavit of Robert Davino, an investigator for the Con Ed law department. Plaintiff opposes this motion by asserting that Con Ed failed to meet its burden and that issues of fact remain regarding Con Ed's involvement in causing or creating the defect. This argument is largely based on permits omitted from Con Ed's motion papers and statements by co-defendants allegedly indicating that Con Ed performed work in the area of plaintiff's accident.
It does appear from the two submitted reports, the testimony of Roger LeGoff, and the affidavit of Robert Davino stating the exact location of the work portrayed in Plaintiff's Exhibit 6, that Con Ed did not perform work in the location of plaintiff's accident under the reports labeled Plaintiff's Exhibits 6 and 7. However, the deposition testimony of Roger LeGoff refers to another permit that was omitted from Con Ed's moving papers and which authorized Con Ed to excavate a trench up to two-hundred feet in length on Water Street between Coenties Slip and Old Slip. This permit, a copy of which was included in the City's motion papers, authorized Con Ed to work from February 8, 2000 through March 8, 2000. Mr. LeGoff further clarified that the excavation was to take place one foot cast of the west curb and ten feet south of the north curb submitted as Coenties Slip. It is reasonable, based on the language of the permit and the testimony of Mr. LeGoff, that a trier of fact could interpret this permit as authorizing work in the location where plaintiff's accident occurred. This interpretation is particularly reasonable based on the size of the proposed excavation and the lack of specification as to the exact shape and direction of the trench.
Particularly because of the February 8, 2000 permit, which is nowhere addressed by Con Ed, it must be concluded that a material issue of fact exists regarding Con Ed's participation in causing or creating the defect. As Con Ed has failed to meet its prima facie burden, its motion for summary judgment must therefore be denied, regardless of the sufficiency of plaintiff's papers. Winegrad at 851; see Clark v. City of New York, 43 AD3d 419 (2d Dept 2007); see also Clark v. City of New York, 43 AD3d 419 (2d Dept 2007).
In light of the foregoing, it is
ORDERED that defendant Westmoreland's motion for summary judgment is denied; and it is further
ORDERED that defendant Felix's motion for summary judgment is granted solely to the extent of dismissing defendant Consolidated Edison's cross-claims for contractual indemnification and breach of insurance procurement obligations, and in all other respects the motion is denied; and it is further
ORDERED that defendant Consolidated Edison's motion for summary judgment is denied; and it is further
ORDERED that the City of New York's motion for summary judgment is granted; and it is further
ORDERED that the City of New York shall serve a copy of this order upon all parties, the Clerk of the Court (60 Centre Street, Basement), the Trial Support Office (60 Centre St., Rm. 158) and the DCM Office (80 Centre, Rm. 102) with notice of its entry within 20 days of its entry; and it is further
ORDERED that upon proof of service of a copy of this order with notice of entry upon all parties, the Clerk of Court is directed to enter judgment dismissing the complaint in its entirety and any cross-claims as against co-defendant the City of New York only, and it is further
ORDERED that the entire action is respectfully referred to the Trial Support Office for re-assignment because the City is no longer a party to the action.
This constitutes the Decision and Order of the Court.