Opinion
Index No. 150185/2016 Third-Party Index No. 595814/2016 Motion Seq. No. 005
02-23-2024
OLGA ALICEA, Plaintiff, v. CITY OF NEW YORK, STERLING UNION SQ. LLC., BEST BUY CO., INC., Defendant. CONSOLIDATED EDISON COMPANY OF NEW YORK, Plaintiff, v. STERLING UNION SQ., LLC Defendant.
Unpublished Opinion
MOTION DATE 09/21/2023.
PRESENT: HON. NICHOLAS W. MOYNE, Justice.
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 138, 139, 140, 141, 142, 143, 144, 145, 146. 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, '163, 164, 165, 166, 167, 168, 171, 172, 173 were read on this motion to/for JUDGMENT - SUMMARY. Upon the foregoing documents, it is
This is an action by plaintiff, Olga Alicea, to recover for personal injuries allegedly sustained on October 13, 2014, when she was caused to trip and fall as a result of a dangerous or defective condition on the sidewalk located near the intersection of 14th Street Union Square and Fourth Avenue, New York, New York.
Defendant, the City of New York ('The City"), now moves for an order, pursuant to CPLR § 3211 (a)(7), dismissing the complaint for the failure to state a cause of action and/or, pursuant to CPLR § 3212, granting summary judgment on the grounds that the City did not have prior written notice of the defect as required by New York City Administrative Code § 7-201. Plaintiff opposes the motion, asserting that summary judgment is not warranted as there is evidence that the City played a role in causing or creating the condition.
The 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 demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).
Discussion:
Administrative Code § 7-201 requires that to maintain an action against the City for personal injuries arising out of the existence of a dangerous or defective condition on a sidewalk, the City must have received prior written notice of such condition and failed to repair it within 15 days of such notice (Administrative Code § 7-201 [c] [2]). Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove, the failure to demonstrate prior written notice leaves a plaintiff without legal recourse against the City (Katz v City of New York, 87 N.Y.2d 241, 243 [1995]).
The City correctly contends that plaintiff failed to comply with this pre-requisite as she failed to assert or plead that the City had prior written notice of the defect that allegedly caused her accident in either the notice of claim or the complaint (see Kales v City of New York, 169 A.D.3d 585 [1st Dept 2019]). The City additionally met its prima facie burden by submitting evidence that shows it did not have prior written notice of the specific condition of a piece of metal located on the sidewalk in front of the Best Buy located on East 14th Street and Fourth Avenue (Dunn v City of New York, 206 A.D.3d 403, 403 ; see also Haulsey v City of New York, 123 A.D.3d 606, 607 [1st Dept 2014]). In opposition, plaintiff does not challenge her failure th plead and prove but instead asserts that notice was not required as the City played a role in causing or creating the defective condition.
Where the City establishes it lacked prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate a question of fact exists or the applicability of one of two recognized exceptions to the rule: the municipality affirmatively created the defect through an act of negligence or a special use (Yarborough v City of New York, 10 N.Y.3d 726, 728 [2008]). Only the affirmative negligence exception is indicated in this case, and the exception is limited to work done by the City that immediately results in the existence of a dangerous condition (Yarborough v City of New York, 10 N.Y.3d 726, 728 [2008]).
Plaintiff failed to present any evidence or raise a triable issue of fact that the City engaged In an affirmative act of negligence which immediately caused or created the condition (Rosenblum v City of New York, 89 A.D.3d 439, 440 [1st Dept 2011]). Plaintiff argues that the City played a significant part in actively causing or creating the alleged defect, specifically relying on three building operations permits that were issued by the City to Third-Party Defendant, Sato Construction Co., Inc. ("Sato"), for the purpose of doing work on the sidewalk.
However, all the permits found in the records search were issued to non-City entities and contain no evidence that the City undertook or performed any work on the subject sidewalk or relevant area (see Tomashevskaya v City of New York, 161 A.D.3d 511,512 [ 1 st Dept 2018]; Merrill v City of New York, Ml A.D.3d 483, 484, 100 N.Y.S.3d 244, 245 [1st Dept 2019]).
Further, plaintiff's argument that the City played an ongoing supervisory role during the time the work authorized by these three permits was being done, and therefore allowing Sato to create a dangerous condition, is speculative and conclusory (see Oboler v City of New York, 8 N.Y.3d 888, 889 [2007]; Gray v City of New York, 195 A.D.3d 538 [1st Dept 2021]). Notably, and contrary to the plaintiffs allegation, the deposition testimony of the City's witness demonstrates that the search revealed that only one inspection report was found with respect to the permits issued to Sato, no notice of violation was issued, and the inspection passed (.see NYSCEF Doc. No. 163 at 54-55).
Finally, plaintiffs argument that crucial facts about the relationship between the City, Third-Party Defendants, and the defect are unknown and may only come to light through conducting outstanding depositions, is insufficient to show that the City's motion for summary judgment is premature (Civic v City of New York, 215 A.D.3d 445, 446 [1st Dept 2023] [defendant's motion was not premature even in the absence of depositions as the City provided documents and affidavits from witnesses concerning records searches and plaintiff failed to show further discovery would lead to relevant evidence]). Therefore, the City's motion for summary judgment is granted in its entirety.
Conclusion:
Accordingly, it is hereby
ORDERED that the motion of defendant The City of New York for summary judgment to dismiss the complaint herein is granted and the complaint and any cross-claims are dismissed in their entirety as against said defendant, and the Clerk is directed to enter judgment accordingly in favor of said defendant, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the remainder of the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that ail future papers filed with the court bear the amended caption; and it is further
ORDERED that the amended caption read as follows: .
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OLGA ALICEA, Plaintiff, -v
STERLING UNION SQ., LLC., BEST BUY CO., INC.,CONSOLIDATED EDISON COMPANY OF NEW YORK, Defendants.
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STERLING UNION SQ., LLC, Third-Party Plaintiff
-v
SATO CONSTRUCTION CO. INC. d/b/a FLAG WATERPROOFING &RESTORATION COMPANY, Third-party Defendant.
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SATO CONSTRUCTION CO. INC. d/b/a FLAG WATERPROOFING &RESTORATION COMPANY, Second Third-Party Plaintiff
-V
MAYA CONTRACTING, INC., Second Third-Party Defendant
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and it is further
ORDERED that as the City of New York is no longer a party to this action, the matter should be removed from the City Part and the action shall be reassigned to a General IAS Part; and it is further
ORDERED that this action is remitted to the General Clerk's Office for reassignment to another Justice; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website)].
This constitutes the decision and order of the court.