Opinion
25452/2015E
03-28-2018
Brisaida SANTOS, Plaintiff, v. The CITY OF NEW YORK, et als., Defendants.
Counsel for Plaintiff: Yadgarov & Assoc., ESQ., (Ronald Ramo, Esq..) Counsel for Defendant City of NY: Zachary W. Carter, Corporation Counsel (Marbel L. Munoz, Esq.)
Counsel for Plaintiff: Yadgarov & Assoc., ESQ., (Ronald Ramo, Esq..)
Counsel for Defendant City of NY: Zachary W. Carter, Corporation Counsel (Marbel L. Munoz, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 read on the below motion noticed on October 6, 2017 and duly submitted on the Part IA15 Motion calendar of December 4, 2017 :
Papers Submitted/Numbered
Def.'s Notice of Motion, Exhibits 1,2
Pl.'s Aff. In Opp., Exhibits 3,4
Def.'s Reply Aff. 5
Upon the foregoing papers, the defendant City of New York ("City") moves for summary judgment, dismissing the complaint of the plaintiff Brisaida Santos ("Plaintiff"), and any and all cross-claims, pursuant to CPLR 3212. Plaintiff opposes the motion.
I. Background
This matter arises out of an alleged trip and fall accident that occurred on July 6, 2014, on an uneven and broken sidewalk condition in front of 701 Elton Avenue in the Bronx, New York. City moves for summary judgment, contending that pursuant to New York City Administrative Code § 7–210, it is not liable for Plaintiff's alleged injuries, because (1) City did not own the premises abutting the accident location, (2) none of the exceptions to the application of Admin. Code § 7–210 apply to this matter, and (3) City did not cause or create the allegedly defective condition.
In opposition to the motion, Plaintiff notes that the map provided by the Big Apple Pothole and Sidewalk Protection Corporation on June 26, 2003 ("Big Apple Map") submitted by the City indicates an extended section of cracked sidewalk in front of the subject premises. Plaintiff alleges that she sought records from the City relating to any maintenance or repair work or complaints related to the sidewalk, but to date she has received no responses. Plaintiff thus argues that the motion must be denied, because City failed to demonstrate that it did not conduct any repair work on the sidewalk from 2003 to the accident date, especially when City had actual notice of the hazard more than 15 days prior to transferring liability to the landowner in September 2003. Plaintiff also asserts that the motion must be denied as premature, pursuant to CPLR 3212(f).
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "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 from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738 [1993] ).
III. Applicable Law and Analysis
The Administrative Code of the City of New York § 7—210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two-, or three-family residential properties that are owner occupied and used exclusively for residential purposes (see Vucetovic v. Epsom Downs, Inc ., 10 NY3d 517, 520 [2008] ). Subsection (c) specifically provides: "[n]otwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks ... in a reasonably safe condition" (New York City Admin. Code § 7–210[c]; see also Ortiz v. City of New York , 67 AD3d 21, 25 [1st Dept. 2009], rev'd , 14 NY3d 779 [2010] ). This statute was enacted to save costs to New York City and to encourage landowners to maintain abutting public sidewalks in good repair so as to avoid liability ( Sangaray v. West River Associates, LLC. , 121 AD3d 602, 604 [1st Dept. 2014] [Saxe, J., Concurring], rev'd , 26 NY3d 793 [2016] ). The City may nevertheless be held liable for a defective condition on a sidewalk where it caused and created the defective condition through an "affirmative act of negligence" (see Trawinski v. Jabir & Farag Properties, LLC. , 154 AD3d 991, 994 [2nd Dept. 2017] ).
In this matter, City demonstrated that this accident occurred on the sidewalk in front of a building owned by the co-defendant, and this was not an area that the City was required to maintain (see Puello v. Georges Units, LLC. , 146 AD3d 561, 562 [1st Dept. 2017] ). City also demonstrated that none of the exceptions to Admin. Code § 7–210(c) apply, as the abutting property was not an owner-occupied one, two, or three-family residential building used exclusively for residential purposes (id. ).
City further established that it did not affirmatively create the allegedly hazardous condition or make special use of the sidewalk. City provided an affidavit from a New York City Department of Transportation ("DOT") employee who performed a search of electronic databases for corresponding paper records of permits, applications for permits, corrective action requests ("CAR")'s, notices of violation, ("NOV")'s, inspections, maintenance and repair orders, sidewalk violations, contracts, complaints, and Big Apple Maps for the accident location encompassing a period of two years prior to and including the accident date of July 6, 2014. The search revealed the existence of a "Big Apple Map" served on the DOT on June 26, 2003, but no other records indicating prior complaints or repair work in the area.
In opposition to the motion, Plaintiff argues that the City failed to carry its initial burden because the Big Apple Map demonstrates the existence of a sidewalk crack in the area as of 2003, and yet City did not produce any work or repair records from 2003–2012 to show whether or not it took steps to repair this condition. However, the fact that a sidewalk crack appeared on the Big Apple Map as of 2003 has no bearing on the City's liability for it. Administrative Code § 7–210 became law on July 16, 2003, became effective on the sixtieth day thereafter, and applies "to accidents on or after such effective date." (Local Law No. 49 [2003] of City of NY § 7–210 § 2 [emphasis added] ). "Thus, it is the date of the accident, not the date when the sidewalk condition manifested itself, that is the determinative date" ( Goss v. Park Briar Owners, Inc. , 14 Misc 3d 1239 [A][Sup. Ct., Queens Cty., 2007]; see Gonzalez v. City of New York , New York County Index No, 103233/09 [March 2, 2010][ Jaffe, J.] ). Accordingly, City cannot be held liable for this 2014 accident even if they had notice of the defect in 2003, since the accident occurred well after the statute was enacted shifting tort liability to the abutting property owners.
Plaintiff contends that the motion is premature, because City has not produced records of repairs performed in the area from 2003–2012 which may raise issues of fact as to whether City caused the dangerous condition through an affirmative act of negligence. However, the "affirmative negligence" exception is limited to work by the City or its contractors that immediately resulted in the creation of a dangerous condition (see Yarborough v. New York , 10 NY3d 726 [2008] ). Thus, a plaintiff cannot invoke this exception for allegedly negligent repair work that results in the deterioration and emergence of dangerous conditions over a period of time (id. , see Lopez v. G & J Rudolph Inc , 20 AD3d 511 [2nd Dept. 2005] ; Bilecki v. New York , 14 AD3d 301 [1st Dept. 2005] ; PJI2:225A Comment IV: Exceptions to Prior Written Notice Requirement). In this case, by providing records indicating an absence of any repair work in the area during the two years prior to this accident, City demonstrated that its conduct did not "immediately result" in the creation of this dangerous condition. Plaintiff has not provided any admissible evidence, or non-speculative basis, for the proposition that work performed more than two years before this accident could have "immediately" resulted in the defect (see Bilecki v. New York , 14 AD3d 301 ; see also Brown v. City of New York , 150 AD3d 615, 616 [1st Dept. 2017] ). Plaintiff, therefore, has failed to support her motion by "something other than mere hope or conjecture" and thus she cannot avail herself of CPLR 3212(f) to avoid summary judgment (see Safier v. Saggio Restaurant, Inc. , 151 AD3d 543, 544 [1st Dept. 2017] ; Erkan v. McDonald's Corp. , 146 AD3d 466, 468 [1st Dept. 2017] [mere hope that sufficient evidence to defeat summary judgment may be uncovered in discovery is insufficient to deny motion][internal quotation omitted]; see also Chester v. Alsol Enterprises, Ltd. , 95 AD3d 922, 923 [2nd Dept. 2012] ).
IV. Conclusion
Accordingly, it is hereby
ORDERED, that City's motion for summary judgment is granted, and it is further,
ORDERED, that Plaintiff's complaint, and any cross-claims asserted against City are dismissed with prejudice.
This constitutes the Decision and Order of this Court.