Vargas v. Con Edison Co. N.Y.

Full title: JONATHON VARGAS Plaintiff, v. CON EDISON COMPANY OF NEW YORK, INC.…

Court: Supreme Court, New York County

Date published: Jan 12, 2023

2023 N.Y. Slip Op. 30108 (N.Y. Sup. Ct. 2023)

Opinion

Index No. 158885/2018 Motion Seq. No. 001

01-12-2023

JONATHON VARGAS Plaintiff, v. CON EDISON COMPANY OF NEW YORK, INC., Defendant.

HON. JAMES E. D'AUQUSTE JUSTICE, J.S.C

Unpublished Opinion

MOTION DATE 05/23/2022

PRESENT: Hon. James E. d'Auquste Justice

DECISION + ORDER ON MOTION

HON. JAMES E. D'AUQUSTE JUSTICE, J.S.C

The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for SUMMARY JUDGMENT.

Jonathon Vargas ("Vargas") seeks summary judgment on the issue of Defendant Con Edison Company of New York, Inc.'s ("ConEd") liability under his claim of negligence.

On June 24, 2017, Vargas allegedly suffered personal injuries when he fell on metal grating owned by defendant. Vargas asserts that the subject incident occurred "on the right side of West 46^th Street...directly in front of the parking lot on the right side of 46^th Street" (NYSCEF Doc. No. 47). Vargas contends that the accident occurred after he had finished dinner, at which he did not consume any alcohol. Vargas claims that, while walking, he felt his "right foot stop and he fell forward onto a grating," and "landed on his elbow and shoulder" (NYSCEF Doc. No. 47). ConEd concedes that it owns the subject grating covering its vault, that it monitors and inspects its sidewalk gratings, including the 12 inches of concrete surrounding their metal hardware, and that it last inspected the subject vault in 2014 (NYSCEF Doc. Nos. 75, 83).

Initially, ConEd argues there are questions of fact as to where the accident occurred, alleging Vargas' statement in the Notice of Claim which stated the accident occurred on the sidewalk in front of 346 West 46^th Street-the opposite side of West 46^th Street from where Vargas alleges the accident happened at 333 West 46^th St (NYSCEF Doc. Nos. 75, 77). However, Vargas' deposition testimony, bill of particulars and supplemental bill of particulars all indicate the accident occurred by the grate in front of 333 West 46^th Street. Vargas' statements in hospital and ambulance reports also all indicate the accident occurred because of a defect by the grating, and Vargas notes there is no vault grating on the sidewalk in front of the building at 346 West 46^th Street-the address provided in the Notice of Claim. The grating is located diagonally across the street from such address, in front of a parking lot, as Vargas always contended (NYSCEF Doc. No. 83). Vargas states the deposition testimony and bill of particulars simply provide additional details and a more precise location, which does not rise to the level of a prior "inherently inconsistent" statement required to defeat summary judgment. Cuevas v. Baruti Constr. Corp., 164 A.D.3d 447 (1st Dep't 2018) (citing Cox v. McCormick Farms Inc., 144 A.D.3d 1533 (4th Dep't 2016) (holding that where a question was not directly asked in deposition, it is proper to consider a subsequent affidavit providing greater specificity as long as it does not directly contradict deposition testimony)). In the end, ConEd failed to provide actual evidence contradicting Vargas' recitation of the facts surrounding the incident.

Next, ConEd asserts that the seriously degraded grating was not dangerousness, and that it also lacked actual or constructive notice of the allegedly defective condition. In support of his prima facie case on these two issues, Vargas submitted the affidavit of Vincent Ettari, a licensed engineer. Ettari contends that the subject grating violated numerous Administrative Codes and the Rules of the City of New York, noting as ConEd admits owning, monitoring, and inspecting the grating, including the 12 inches of concrete surrounding its metal hardware, it was required to maintain the grating's surrounding area in a reasonably safe condition under 34 RCNY §2-07(b). Ettari opines the poor and deteriorated condition of the sidewalk and vault caused Vargas to trip and fall, resulting in his injuries (NYSCEF Doc. No. 48). As such, Vargas argues ConEd's failure to maintain the grating and surrounding area in a reasonably safe condition, arguably for over eight years, as Ettari's report and photographic evidence show, is evidence of ConEd's notice and negligence, entitling Vargas to summary judgment on liability (NYSCEF Doc. No. 83). ConEd did not submit an expert affidavit disputing Ettari's expert conclusions.

ConEd asserts that liability on a negligence claim cannot be premised upon a failure to comply with the administrative code because such violations constitute some evidence of negligence, and not negligence per se. Contrary to this argument, "the violation of an ordinance which causes injury to any person has been found to be prima facie evidence of negligence and, unless its probative force is overcome, it becomes conclusive and fixes liability" Lein v. Czaplinski, 106 A.D.2d 723, 724 (3d Dep't 1984). Typically, the primary issue that often exists in the context of violations of an administrative code exists around caution, which are rarely appropriate for conclusions made as a matter of law. Id. at 725. Here, ConEd failed to contradict with evidentiary support Vargas's prima facie showing as to its negligence or its proximate causation as to Vargas' injuries.

Additionally, ConEd argues the lack of actual or constructive notice. Initially, Ettari asserts that post-accident photographs show that the "vertical discontinuity-height difference between the broken concrete and steel rim of the grating's vault structure-grew to a height of at least one and one-eighth inch, noting such "advanced level of deterioration could only have occurred over the course of several years of seasonal cycles" (NYSCEF Doc. Nos. 48, 83). This conclusion is supported by Google Street images showing substantial deterioration of the accident scene since at least 2011, and progressively continued to degrade over the years until Vargas' accident in 2017 (NYSCEF Doc. No. 83). ConEd asserts that an April 2014 inspection does not mention pedestrian defects, but its SIP inspection report found numerous defects that were not repaired, including "flaking, peeling, corroded steel plate, heavy cracks with greater than Va, inch, and step crack in brick mortar with opening greater than % inch" (NYSCEF Doc. Nos. 40, 83). In addition to the documentation being insufficient to create a dispute on the issue of notice, ConEd did not submit any expert proofs challenging the conclusion that deterioration at issue would have taken multiple seasons. Thus, there was more than sufficient time for ConEd to reasonably discovery the defective condition and remedy it.

The Court considered all other arguments asserted by defendant and found them without merit.

Accordingly, Vargas is granted summary judgment on the issue of liability on his cause of action for negligence. This constitutes the decision and order of the Court.