Opinion
Index No. 156588/2019 Motion Seq. No. 004
09-14-2022
DAVID CHENG and LIZHEN BAO, Plaintiffs, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION BUREAU OF WATER AND SEWER OPERATIONS and 277 PARK AVENUE, LLC, Defendants.
Unpublished Opinion
MOTION DATE 7/19/2022
PRESENT: HON. JUDY H. KIM Justice.
DECISION + ORDER ON MOTION
HON JUDY H. KIM, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 63, 64, 65, 66, 6768, 69, 70, 71, 72, 73, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90' were read on this motion to DISMISS.
On July 3, 2019, plaintiffs commenced this action against the City of New York, the New York City Department of Buildings, the New York City Department of Transportation, the New York City Department of Environmental Protection, and the New York City Department of Environmental Protection Bureau of Water and Sewer Operations (collectively, the "City") and 277 Park Avenue, LLC, asserting claims for negligence and loss of consortium stemming from David Cheng's alleged slip and fall on June 28, 2018 (NYSCEF Doc. No. 1 [Compl. at ¶¶13, 4951]).
On December 3,2018, Cheng testified at a General Municipal Law ("GML") §50-h hearing that it was heavily raining on the date of his fall (NYSCEF Doc. No. 70 [GML §50-h Tr. at p. 15]). On that date, Cheng was walking along a segment of Park Avenue where, due to construction on the sidewalk in front of 277 Park Avenue, pedestrian traffic was diverted into a walkway on the road (Id. at p. 14). At the time, a large portion of this walkway in the road was "blocked" by a puddle left by the rain (Id. at ¶22). As the pedestrian walkway in the road was not wide enough to accommodate the flow of rush hour pedestrians in both directions, Cheng testified, and he, like "most of the people coming from north to south ... went onto the sidewalk" while "most of the people going south to north" remained on the walkway on the road (Id. at p. 23). Cheng testified that he slipped and fell on the wet metallic edge of the sidewalk (Id. at pp. 22, 24).
The City now moves, pursuant to CPLR §3211(a)(1) and (a)(7), for an order dismissing the complaint and all cross-claims against it, arguing that "[a]ny allegation the City caused, permitted, or allowed the walkway to be in a dangerous condition must fail, as, based on Plaintiffs own testimony, his slip and fall was not caused by a dangerous of defective condition within the curb, but rather due to the curb being wet from the ongoing rain. The same is true as to any alleged repairs or failure to make repairs-as, based on Plaintiffs testimony, there was no defective prior repairs, nor a need for repairs as there was no defect" (NYSCEF Doc. No. 64 [Igoe Affirm at ¶13]).
Plaintiffs and co-defendant 277 Park Avenue, LLC, oppose the motion, arguing that they have sufficiently alleged that the City's negligence led to defects in the walkway forcing pedestrians on to the sidewalk and that defects in the sidewalk led to Cheng's fall. They further argue that the motion is premature as further discovery is needed.
DISCUSSION
As a preliminary matter, the Court observes that the City "conflates the burdens of proof imposed by CPLR § 3211(a)(1) and (7) and CPLR §3212; utilizing CPLR §3211(a) (1) and (7) as the basis for dismissal while nevertheless making arguments and submitting proof more appropriate to a motion for summary judgment pursuant to CPLR § 3212" (Preston v The City of New York, 2017 NY Slip Op 30539[U], 2-3 [Sup Ct, Bronx County 2017]). On this motion to dismiss pursuant to CPLR §3211, however, "the pleading is to be afforded a liberal construction" with the facts alleged in the complaint accepted as true and the plaintiffs accorded the benefit of "every possible favorable inference" (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994] [internal citations omitted).
That branch of the City's motion to dismiss pursuant to CPLR §3211(a)(7) is denied, as the complaint's allegations state a claim for negligence (See e.g., Alba v The City of New York, 2008 NY Slip Op 32111 [U] [Sup Ct, NY County 2008] [negligence action in which plaintiff alleged she was forced to detour into roadway where her foot was stuck between steel plates dismissed as to City pursuant to Administrative Code §7-201]). That branch of the City's motion pursuant to CPLR §3211(a)(1) is also denied.
Under CPLR §3211(a)(1), "[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law" (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 433 [1st Dept 2014] [internal citations and quotations omitted]). "To be considered documentary" such evidence "must be unambiguous and of undisputed authenticity" (Toribio v 575 Broadway LLC, 61 Misc.3d 1224(A) [Sup Ct, NY County 2018] [internal citations and quotations omitted]). Significantly, "[j]udicial records, mortgages, deeds and contracts constitute documentary evidence, but affidavits and deposition testimony are not considered documentary evidence" (Id. [internal citations omitted]).
In support of its motion, the City relies solely on plaintiffs GML §50-h testimony which, it argues, definitively establishes that the sidewalk was slippery solely due to the recent rain. While it is undisputed that "the mere wet nature of a surface from rain does not impose liability on a party" (NYSCEF Doc. No. T64K [Igoe Affirm, at ¶10]), the testimony submitted here is insufficient, at this juncture, to establish that this principle applies here such that dismissal is warranted.
As an initial matter, a party's testimony is generally not considered documentary evidence for purposes of a CPLR §3211(a)(1) motion (See e.g., Correa v Orient-Express Hotels, Inc., 84 A.D.3d 651 [1st Dept 2011]). Even assuming, for the sake of argument, that the City may use plaintiffs GML §50-h testimony in support of the instant motion (See Stein v Nat. Gen. Ins. Co., 2020 NY Slip Op 31814[U], 3 [Sup Ct, New York County 2020] ["on a motion to dismiss pursuant to CPLR §3211(a)(1), documentary evidence may be supplemented by affidavits or deposition testimony that are not disputed"] citing Rosenbaum, Rosenfeld & Sonnenblick, LLP v Excalibur Grp. NA, LLC, 146 A.D.3d 489 [1st Dept 2017]), Cheng's testimony at that hearing-that he believed he slipped on the metallic edge of the sidewalk because it was wet-does not constitute objective evidence conclusively establishing the City's defense that Cheng's fall was due solely to the rain rather than a defect of the sidewalk.
Accordingly, it is
ORDERED that motion by the City of New York to dismiss this action is denied; and it is further
ORDERED that within twenty days of the date of this decision and order, plaintiffs shall serve a copy of this decision and order with notice of its entry upon all parties, the Clerk of the Court (60 Centre St., Room 141B), and the Clerk of the General Clerk's Office (60 Centre St., Rm. 119) 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 this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.