Opinion
106371/05.
Decided January 4, 2010.
David L. Engelsher, Plaintiff.
John Orcutt (Corporation Counsel), Defendant.
Plaintiff brings this action for personal injuries allegedly sustained when she tripped and fell "in the crosswalk of Downing Street, at or near its intersection with Avenue of the Americas" in the County and State of New York on November 30, 2004. Specifically, plaintiff alleges that she tripped on an "uneven excessive amount of p[a]int used to make [the] crosswalk." Defendants the City of New York and the New York City Department of Transportation ("City") moves to dismiss pursuant to CPLR 3211 or, in the alternative, for summary judgment pursuant to CPLR 3212. Plaintiff opposes and cross-moves to amend in order to assert a claim against Iberia Road Markings ("Iberia"), a company alleged to have contracted with City to "furnish and install crosswalks." Iberia opposes plaintiff's cross-motion.
City, in support of its motion, submits: plaintiff's notice of claim; the pleadings; a copy of the "response sheet" produced pursuant to a search request, two street opening permits; a copy of the Big Apple Pothole and Sidewalk Map for the subject location; the deposition transcript of plaintiff; a copy of a contract titled "Furnish and Installation of School Crosswalks in the Boroughs of the City of New York;" a copy of the results of a search conducted by Dorothy Rozier, Supervisor of Traffic Unit, and several records; and the deposition transcript of Edward Manglos, Assistant Chief of Contracts for the Department of Transportation ("DOT"). City argues that it did not have prior written notice of the subject defect as is required by New York City Administrative Code § 7-201(c)(2). City points out that any permits uncovered by its search of records do not constitute prior written notice. City also asserts that it did not cause or create the alleged defect.
Plaintiff, in opposition, submits: her bill of particulars; four color photocopies of a photograph of the subject location; a copy of plaintiff's 50-h hearing transcript; and a copy of her March 11, 2009 Notice for Discovery and Inspection ("D I"). Plaintiff asserts that City's motion is premature because City failed to respond to her March 11, 2009 D I. The outstanding discovery allegedly includes: a "job file" for the subject intersection; Field Inspection Reports and completed work orders; relevant documents from the Engineering Audit Bureau, lab reports for the analysis of the paint used to mark the cross-walk, and any written complaints "lodged with the City . . . for similar defects."
Plaintiff submits a Supplemental Affirmation in Opposition, to which she annexes two compliance conference orders which direct City to respond to the D I.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. ( Zuckerman v. City of New York, 49 NY2d 557). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255). ( Edison Stone Corp. v. 42nd Street Development Corp., 145 AD2d 249, 251-252 [1st Dept. 1989]).
New York City Administrative Code § 7-201(c)(2) states, in relevant part:
No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any . . . sidewalk . . .being out of repair, unsafe, dangerous, or obstructed, unless it appears that written notice . . . was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice.
The only recognized exceptions to the notice requirement are (1) where a special use confers a special benefit upon the municipality or; (2) An act of affirmative negligence by the municipality caused or created the defect. ( LoCurto v. City of New York , 2 AD3d 277 [1st Dept. 2003]). When it is alleged that the municipality caused or created the defect, the exception is "limited to work by the City that immediately results in the existence of a dangerous condition." ( Oboler v. City of New York , 8 NY3d 888 ).
City submits the deposition testimony of a DOT record searcher who testifies that no complaints, repair orders, or violations existed regarding the specific location of plaintiff's accident. Although the search revealed that two street opening permits were issued, neither of them showed that the City did any work in the area of the defect. It is well settled that the City's issuance of a work permit does not constitute evidence of prior written notice. ( Levbarg v. City of New York, 282 AD2d 239 [1st Dept. 2001]). The Big Apple map shows no defect in the crosswalk.
Pursuant to CPLR 3212(f), if it appears from affidavits submitted in opposition that "facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion . . ." City has repeatedly failed to respond to plaintiff's D I. Indeed, City fails to provide the outstanding discovery here.
The photographs provided show an area of cracked and broken pavement, where the debris appears to contain chunks of the thick layer of paint used to designate a separation between a traffic and crossing or pedestrian lane. Plaintiff asserts that the missing field inspection reports might demonstrate that the disintegration of the painted designation was noted immediately after the work was done, or provide written notice of the underlying condition.
Mr. Mangelo testifies that the purpose of the inspections, which are conducted approximately two weeks after Iberia finishes its work, is to ensure that the painting work was done properly. Mr. Mangelo testifies:
Q: At the end of the crosswalk stripe, does it appear to be chipped?
A: Yes it does.
'Q: Could you explain how that would happen?
A: Pavement looks like it's in lousy shape to begin with.
Q: The pavement underneath the stripe?
A. Yeah.
Q: Any other reason why that could have chipped off and broken?
A: For this case, that looks like what it is . . .
Turning now to the cross-motion, plaintiff's reliance on the relation back doctrine, as codified in CPLR 203(c), is misplaced. "To invoke th[e] relation back doctrine, a plaintiff must show that: (1) both claims arise out of the same transaction; (2) the new party is united in interest with the original defendant such that their respective defenses are the same and they stand or fall together; and (3) the new party knew or should have known that but for the mistake of the plaintiff in failing to identify all proper parties, the action would have been brought against him." (Tucker v. Lorieo, 291 AD2d 261 [1st Dept. 2002]).
For purposes of CPLR 203(c), City and Iberia are not united in interest. It remains to be seen whether the defect was caused by negligently applied paint or a defective roadway beneath the painted line. Neither can Iberia assert the same defenses as City. Indeed, Iberia might allege the defective roadway surface as a reason why the paint did not take to the surface. Provided Iberia performed the work it contracted to do, it may have a complete defense as owing no duty to a non contracting third party. "The mere possibility that a defendant who was served late could have such a different defense is all that is required because, the Statute having run, it is now too late for him to conduct an investigation into the viability of that defense." ( Connell v. Hayden 83 AD2d 30,42[2nd Dept, 1981]).
Wherefore it is hereby
ORDERED that defendants the City of New York and the New York City Department of Transportation's motion is denied as premature; and it is further
ORDERED that City is to comply with all outstanding discovery, as directed by the compliance conference orders dated May 23, 2009 and July 14, 2009 within 30 days of service of a copy of this order with notice of entry; and it is further
ORDERED that the cross-motion is denied.