Opinion
104245/1996.
March 25, 2011.
Thomas L. Bondy, Esq., Zuller Bondy, LLP, New York, NY, for plaintiff.
Peter C. Lucas, Michael A. Cardozo, New York, NY, for defendant City.
DECISION ORDER
By notice of motion dated April 23, 2010, City moves pursuant to CPLR 3211(a)(7) for an order dismissing the complaint, or in the alternative, pursuant to CPLR 3212 for an order summarily dismissing the complaint. Plaintiff opposes.
I. UNDISPUTED FACTS
Plaintiff alleges that on April 12, 1995, she slipped and fell on a "hole in the ground" with a "piece of metal or plywood over it," on the sidewalk on East 110th Street between Lexington and Third Avenues. (Affirmation of Peter C. Lucas, Aff., dated Apr. 23, 2010 [Lucas Aff.], Exh. F.; Affirmation of Thomas L. Bondy, Esq., dated Nov. 22, 2010 [Bondy Aff.], Exh. 2). At a deposition held on July 22, 2009, plaintiff testified that the defect on the sidewalk was adjacent to one of several of the buildings between 160 East 110th Street and 174 East 110th Street. (Lucas Aff., Exh. F).
Abraham Lopez, a record searcher for the New York City Department of Transportation (DOT), testified at a deposition as to the results of a search conducted by unidentified DOT employees for records relating to East 110th Street between Lexington and Third Avenues for the two years preceding and including the date of plaintiff's accident. (Lopez Aff, Exh, H). The search yielded five permits, no applications, no corrective action requests, no notices of violations, no maintenance and repair records, no sidewalk violations, no contracts and no complaints. The search did, however, yield a Big Apple Map, received by City on February 16, 1995. None of the permits correspond to the area in front of 170 East 110th Street, although one street opening permit, to "repair electric/communications," was issued to Con Edison to open a roadway or sidewalk in front of 161 East 110th Street and 167 East 110th Street, for a maximum length of 26 feet. Lopez was unable to determine if 26 feet extend beyond 161-167 East 110th Street. According to him, when such work is conducted, City inspects the area as reflected on a cut sheet, and the cut sheet would be in the permittee's possession. A City inspector signs the cut sheet, and, before April 11, 2004, the permittee was required to submit a copy to City. However, Lopez testified that City ceased maintaining the copies of the cut sheets and he was unable to explain a computer printout of a permit issued to Con Edison, effective October 18 to November 17, 1993, in front of 174 East 110th Street, recovered by plaintiff through a FOIA request, for a "transformer vault in sidewalk area." ( Id.).
II. PERTINENT PROCEDURAL BACKGROUND
On June 30, 1995, plaintiff served a notice of claim on City (Lucas Aff., Exh. A), and on March 7, 1996, commenced this action by serving a summons and verified complaint ( id., Exh. B). Issued was joined when defendant served its answer on March 27, 1996. ( Id., Exh. C). On November 14, 2006, plaintiff served her verified bill of particulars. ( Id., Exh. D). She testified at a deposition on July 22, 2009 ( id., Exh. F), and Lopez testified at a deposition on February 18, 2010 ( id., Exh. H). The notice of claim, complaint, and bill of particulars each reflect that the defect was adjacent to the building on 170 East 110th Street. (Lucas Aff., Exhs. A, B, D). Plaintiff filed her note of issue and certificate of readiness on March 8, 2010.
III. CONTENTIONS
City contends that it may not be held liable for a defect in the sidewalk absent written notice, and denies that it caused or created the alleged defect. (Lucas Aff.). In support, it relies on plaintiff's pleadings, Lopez's testimony, and the results of the records search. ( Id., Exh. A through I).
In opposition, plaintiff argues that the Big Apple Map reflects a "hole or hazardous depression" thus establishing that City had prior written notice of the defect, that the permits issued to Con Edison also reflect prior written notice, that the absence of the Con Edison permit obtained in plaintiff's FOIL request calls into question the comprehensiveness of City's search, and that a jury could determine by City's inability to provide cut forms, that those cut forms would reflect notice. (Bondy Aff.).
IV. ANALYSIS
It is well-settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals, Inc. v Associated Fur Mfrs, Inc., 46 NY2d 1065, 1067). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers. ( Winegrad, 64 NY2d 851, 853). Accordingly, it is City's burden here, as movant, to demonstrate its entitlement to judgment, and must negate, prima facie, an essential element of the plaintiff's cause of action. ( Rosabella v Metro. Trans. Auth., 23 AD3d 365, 366 [2d Dept 2005]). If shown, the burden shifts to plaintiff to establish a triable issue of fact.
Pursuant to Administrative Code § 7-201(c), no civil action may be maintained against City arising from a dangerous condition on a sidewalk unless the plaintiff demonstrates that City had written notice of the condition "to the commissioner of transportation or any person or person or department authorized by the commissioner to receive such notice," or "written notice" of a prior injury to a city agency. Whereas plaintiff bears the burden of establishing at trial that City had written notice of the defective condition ( Katz v City of New York, 87 NY2d 241, 243), at the pleading stage she bears no such burden. Rather, City as movant bears the burden of establishing an absence of notice. ( See McNeill v City of New York, 40 AD3d 823 [2d Dept 2007]). The Big Apple map, provided by the New York State Trial Lawyers Association for the purpose of providing the written notice required under the Administrative Code, may establish prior written notice so long as the precise defect appears on the map. ( D'Onofrio v City of New York, 11 NY3d 581). Although liability for sidewalks now lies with abutting landowners pursuant to Administrative Code § 7-210, City remains liable for accidents that occurred before September 14, 2003. ( Rodriguez v City of New York, 12 AD3d 282 [1st Dept 2004]).
Here, the evidence offered by City in support of its contention that it had no notice of the claimed dangerous condition is Lopez's testimony and the records which were the product of a search performed by unidentified individuals. Absent Lopez's personal knowledge of the pertinent facts, an explanation of the positive search results, testimony that the search was comprehensive, or even a conclusion that the search reveals that there was no written notice, his testimony does not satisfy City's burden. (Cf McNeill, 40 AD3d 823 [DOT employee's testimony not based on personal knowledge]; Mancilla v City of New York, 2010 NY Slip Op 32748 [U] [Jaffe, J.]). Counsel's conclusion as to the results of the search is of no evidentiary value ( Kelly v Rubin, 224 AD2d 262 [1st Dept 1996] [facts alleged only in counsel's affirmation are without evidentiary value]), and City's search for records failed to unearth at least one pertinent document obtained by plaintiff through a FOIL request, which further calls into question the adequacy of the search. In any event, Lopez acknowledged that he is not qualified to testify as to the substance of that permit and thus City cannot meet its prima facie burden that it had no written notice of a defect at the accident's location. It is therefore unnecessary to reach the merits of plaintiff's opposition papers. ( Delarosa v City of New York, 61 AD3d 813, 814 [2d Dept 2009]).
V. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendant City of New York's motion for summary judgment is denied.
This constitutes the decision and order of the court.