Opinion
13623 Index No. 114966/09 Case No. 2020-02532
04-20-2021
Renee VEGA, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant, Consolidated Edison Company of New York, Inc., et al., Defendants.
James E. Johnson, Corporation Counsel, New York (Jamison Davies of counsel), for appellant. Mark L. Lubelsky & Associates, New York (Thomas J. Sottile of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York (Jamison Davies of counsel), for appellant.
Mark L. Lubelsky & Associates, New York (Thomas J. Sottile of counsel), for respondent.
Webber, J.P., Kern, Oing, Gonza´lez, JJ.
Order, Supreme Court, New York County (Julio Rodriguez, III, J.), entered January 8, 2020, which denied defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured while rollerblading in front of the Columbia Street entrance to the Luther Gulick Playground when her right skate struck grid-shaped cut marks etched into the roadway. There is no dispute that the City did not receive prior written notice of the defect, as required by the Pothole Law (see Administrative Code of City of N.Y. § 7–201[c][2]). Accordingly, the burden shifted to plaintiff to establish that there are triable issues of fact as to whether affirmative negligence of the City's contractor caused the cuts to be etched into the roadway prior the accident (see Martin v. City of New York, 191 A.D.3d 152, 155, 137 N.Y.S.3d 346 [1st Dept. 2020] ).
Plaintiff's reliance on permits issued to the City's contractor authorizing it to reconstruct the catch basin is insufficient to raise an issue of fact as to whether it etched grid-shaped cut marks into the roadway where plaintiff fell (see Ingles v. Architron Designers & Bldrs., Inc., 136 A.D.3d 605, 25 N.Y.S.3d 603 [1st Dept. 2016] ). Sanjay Modi, the Construction Engineer in Charge for the catch basin repair contract, reviewed the work location and drawings for the project and affirmed that the only work performed pursuant to these permits by the City's contractor was approximately 64 feet away from where plaintiff fell (see Merrill v. City of New York, 172 A.D.3d 483, 483, 100 N.Y.S.3d 244 [1st Dept. 2019] ).