Decided October 11, 2007.
Plaintiff was represented by Gregory S. Gennarelli, Esq. of Salenger, Sack, Schwartz Kimmel, LLP. Defendant Independence Community Bank Corp. s/h/a Independence Community Bank was represented by Eleanor R. Goldman, Esq. of Goldman Grossman, Esqs. Defendant City of New York was represented by Michael Shender, Esq. of the Corporation Counsel of the City of New York. Defendant Mohawk Milling and Sweeping Corp. was represented by Charles R. Strugatz. Esq.
On December 25, 2003, Helene Chowes was struck by an automobile while standing on the sidewalk in front of a branch of Independence Community Bank at 1525 Foster Avenue, Brooklyn. The errant automobile was owned by Armando D. Lucret, and was being driven by Jeannette Aslam, who has testified at examination before trial that she swerved in order to avoid a bicyclist on the roadway, mistakenly pressed the accelerator rather than the brake pedal, and took the vehicle over the curb and onto the sidewalk, where it struck Ms. Chowes.
Plaintiff's Verified Complaint alleges claims against Jeannette Aslam, Armando D. Lucret, Independence Community Bank, Cablevision Systems New York City Corporation, Verizon Communications, Inc., and the City of New York. Cablevision and Verizon are no longer in the case, but Mohawk Milling and Sweeping Corp. has been added as a defendant through consolidation.
With these motions, the City of New York and Independence Community Bank (actually Independence Community Bank Corp.) seek summary judgment of dismissal. Defendants Aslam and Lucret have not appeared on the motions; defendant Mohawk Milling has appeared, but has not submitted papers.
The Verified Complaint alleges an extensive list, almost three pages long, of ways in which the various defendants were "negligent, reckless and careless" ( see Verified Complaint, ¶ 72), but as to the City and the Bank, the allegations are fairly summarized by the assertion that "the inadequate curb height coupled with the lack of barriers to protect pedestrians at the aforesaid location created an unreasonable risk of harm to pedestrians by failing [to] provide an adequate safeguard against vehicular traffic mishaps" ( see id., ¶ 73.) Plaintiff further alleges violations of New York City Administrative Code § 7-210 (a) and § 19-152, and with her Bill of Particulars adds violation of "New York City Department of Transportation Standards and Specifications, for the construction, maintenance, resurfacing and repair of roadways and sidewalks." ( See id., ¶¶ 75, 77; Bill of Particulars, ¶ 18.)
The City contends that "as a matter of law, [there is] lack of a causal connection between the alleged negligence and the happening of the accident." (Affirmation in Support of Cross-Motion, ¶ 9.) "Thus, even assuming arguendo that the allegations of negligence against the City are true, summary judgment is warranted in the City's favor because . . . Aslam's testimony, as well as other evidence, establishes that the operation of the vehicle (and/or the bicyclist) were the sole proximate causes of the subject accident." ( Id.)
The Bank too contends that it is entitled to summary judgment "since the sole proximate cause of this accident was the negligence of Defendant Jeannette Aslam in the operation of the vehicle she was driving." ( See Affirmation in Support of Cross-Motion, ¶ 10.) "The motor vehicle accident and accompanying injuries to the plaintiff was ( sic) not a foreseeable consequence of any alleged negligence on the part of" the Bank. ( Id.)
In the first instance, however, the Bank contends that it "owed no duty to plaintiff under common law or statute." ( See id., ¶ 3.) Effective September 14, 2003, prior to the date of Plaintiff's accident, the New Sidewalk Law imposes upon the owner of real property abutting any sidewalk "the duty . . . to maintain such sidewalk in a reasonably safe condition," and provides that the owner "shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." ( See Administrative Code of the City of New York § 7-210 [a], [b].) The Bank correctly asserts that its duty to maintain under the New Sidewalk Law does not extend to the curb. ( See Irizarry v The Rose Bloch 107 University Place Partnership ,12 Misc 3d 733 [Sup Ct, Kings County 2006].)
But liability may be imposed on the Bank if it "created the defective condition, . . . voluntarily but negligently made repairs, . . . or created the defect through special use." ( See Ellman v Village of Rhinebeck , 41 AD3d 635, 637 [2nd Dept 2007] [ quoting Flores v Baroudos , 27 AD3d 517 , 517 [2nd Dept 2006].) The Bank makes no showing that it did not design or construct the curb fronting its branch at 1525 Foster Avenue. The Bank's deposition witness testified that there has been a branch at that location for approximately 40 years, and that the Bank had replaced the sidewalk and curb at one of its other branches in the City.
In any event, the Plaintiff's allegations of negligence are not limited to design and construction. The Verified Complaint alleges that the "curb was of insufficient height, broken, uneven, depressed, cracked, and created a hazardous condition for pedestrians," and that the Bank "failed to maintain the curb at a safe height." ( See Verified Complaint, ¶ 72.) These allegations are sufficient to include a dangerous condition created by negligently made repairs or special use, which the Bank denies.
For this purpose, the Bank offers the deposition testimony of its facilities manager, Nick Luisi, who has served in that position or as an assistant for 10 years. Mr. Luisi testified that the Bank had not performed any work to the sidewalk or curb fronting 1525 Foster Avenue. But his testimony lacks any foundation that would provide probative value. There is nothing in his description of his job duties that would include responsibility for sidewalk or curb work, and his occasional visits to the Foster Avenue branch, primarily related to budgetary matters, do not allow the inference that he would have known of such work if it took place. He identified no other basis for his testimony, such as a review of company records. ( See Furey v Sayville Union Free Sch. Dist., 36 AD3d 588, 589 [2nd Dept 2007]; Rendon v Castle Realty , 28 AD3d 532, 533 [2nd Dept 2006].) Mr. Luisi's testimony is insufficient to establish prima facie that the Bank did not create the unreasonably dangerous condition of the curb, as alleged. ( See Barraillier v City of New York , 12 AD3d 168, 169 [1st Dept 2004].)
In any event, none of Mr. Luisi's testimony avoids the possibility of special use. To the contrary, he testified that in November or December 2003, within two months before Plaintiff's accident, a Bank contractor made repairs to the facade of the building at 1525 Foster, including the repair and replacement of granite tiles. The work took two or three weeks, and required metal scaffolding and closing a portion of the sidewalk to pedestrians. If that work resulted in a degradation of the curb that in turn was a cause of Plaintiff's accident, the Bank could be liable. ( See Rosario v City of New York, 289 AD2d 133, 134 [1st Dept 2001]; Peretich v City of New York, 263 AD2d 410, 411 [1st Dept 1999]; see also Mullins v Siegal-Cooper Co., 183 NY 129, 132; Stockdale v City of New York, 294 AD2d 195, 196 [1st Dept 2002]; Caturano v City of New York, 224 AD2d 202, 202 [1st Dept 1996].)
Like the City, therefore, the Bank may only succeed on its motion if it can be said, as a matter of law, that any negligence on its part, even if a cause-in-fact of Plaintiff's injury, cannot be deemed its proximate cause. And like the City, the Bank makes no showing that the condition of the curb fronting 1525 Foster Avenue did not "create an unreasonable risk of harm to pedestrians by failing [to] provide an adequate safeguard against vehicular traffic mishaps" ( see Verified Complaint, ¶ 73), or that the condition of the curb was not a cause-in-fact of Plaintiff's injury.
"Evidence of negligence is not enough by itself to establish liability." ( Sheehan v City of New York, 40 NY2d 496, 501.) "It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint." ( Id.) "The concept of proximate cause, or more appropriately legal cause" ( Derdiarian v Felix Contracting Corp., 51 NY2d 308, 314) encompass two different, but related, issues: whether the defendant's negligence "was a substantial cause of the events which produced the injury"; and whether "policy considerations that serve to place manageable limits upon liability that flows from negligent conduct" should preclude liability in the particular case. ( See id., at 315.)
"There may be one, or more than one, substantial factor." ( Ohdan v City of New York, 268 AD2d 86, 89 [1st Dept 2000].) And "the absence or presence of prima facie proof of proximate cause [is] not dependent on pure logic alone but [is] rather to be determined . . . upon mixed considerations of logic, common sense, justice, policy and precedent." ( Sheehan v City of New York, 40 NY2d at 503 [internal quotation marks and citations omitted].) Here, the City and the Bank argue only precedent.
"Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, . . . liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." ( Derdiarian v Felix Contracting Corp., 51 NY2d at 315.) The acts of a third person will be deemed a "superseding cause which interrupted the link between [the defendant's] negligence and plaintiff's injuries" when they are "independent intervening acts which operate upon but do not flow from the original negligence." ( Id., at 315-16.) "An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent." ( Id., at 316.)
The relationship between "the foreseeable risk associated with the original negligence" ( see id., at 315-16) and both causation-in-fact and proximate cause cannot be over-emphasized. "[T] he element of causation may be said to provide the essential link between negligent conduct and its consequences, between the harm threatened and the harm done." ( Sewar v Gagliardi Brothers Service, 51 NY2d 752, 758-59 [Fuchsberg, J., concurring].) "[W] hat reasonable care requires . . . may both be determined by and be determinative of the question as to whether [an] activity . . . [is] an intervening cause of an accident." ( See Quinlan v Cecchini, 41 NY2d 686, 691.) "Foreseeability bears on both issues." ( Id.)
The moving Defendants rely on two somewhat-overlapping lines of authority. One line of authority, which proceeds from Tomassi v Town of Union ( 46 NY2d 91), addresses the liability of the State and its subdivisions for the design, construction, or maintenance of their roadways; the other can be traced to Tauraso v Texas Co. ( 275 AD 856 [2nd Dept], aff'd 300 NY 567), and Weber v City of New York ( 24 AD2d 618 [2nd Dept 1965], aff'd 17 NY2d 790), and addresses similar issues as to owners and lessees of private premises.
In Tomassi ( 46 NY2d 91), a collision with another vehicle forced the vehicle in which the plaintiffs were passengers into a ditch. Plaintiffs sued the town, alleging that "the construction of the ditch in such close proximity to the pavement constituted a hazard to motorists which was the cause of their injuries." ( See id., at 97.) Recognizing the town's "duty to construct and maintain its highways in a reasonably safe condition" ( Id.), the court saw the roadway as "more than adequate for safe public passage," and stated that "travel beyond those limits [was] neither contemplated nor foreseeable" ( id.; see also Rodriguez v Hernandez, 37 AD3d 809, 810-11 [2nd Dept 2007]; Chunhye Kang-Kim v City of New York ,29 AD3d 57, 62 [1st Dept 2006]; McKenna v Garcia, 189 AD2d 756, 757 [2nd Dept 1993].)
Even if, however, the town "was negligent in the design, construction or maintenance" of the roadway, there was no evidence that "such negligence was the proximate or concurring cause of the accident." ( See Tomassi v Town of Union, 46 NY2d at 98.) The evidence "compel[led] the conclusion that the sole cause of the accident" was the failure of the drivers of the colliding vehicles "to observe the rules of the road." ( Id.) Nothing in the record warranted the conclusion that "reasonable care required the town . . . to provide more safeguards to prevent motor vehicles leaving the roadway than it had done." ( Id.)
Subsequent decisions have limited Tomassi in two important respects. First, the conclusion reached in Tomassi as to the absence of duty has been limited to conditions existing on unimproved land adjacent to the roadway, and if the responsible governmental authority provides a shoulder alongside the roadway, "it must maintain that shoulder in a reasonably safe condition for foreseeable uses, including those resulting from a driver's negligence or an emergency." ( See Stiuso v City of New York , 87 NY2d 889, 890-91 [emphasis added]; see also Carollo v Town of Colden, 27 AD3d 1077, 1078-79 [4th Dept 2006].) In other words, once the duty extends off-road, invasion by a vehicle resulting from driver negligence is no longer unforeseeable.
Second, if Tomassi states a "general rule" that "a municipality's duty to a motorist is one limited to reasonable safety of those portions of the road intended for vehicular use," then there is an "important exception" for where certain roadside hazards are so inherently dangerous that the municipality has a duty to prevent vehicles from leaving the roadway or, if they do, to eliminate the danger." ( See Hill v Town of Reading , 18 AD3d 913, 915-16 [3rd Dept 2005].) Different conclusions about proximate cause necessarily follow. ( See id., at 914.)
And so, once it has been determined that the duty to design, construct, and maintain roadways in a reasonably safe condition includes a duty "to provide and maintain adequate and proper barriers along its highways" ( see Gomez v New York State Thruway Auth., 73 NY2d 724, 725), the "failure to do so may result in liability if the failure is a substantial factor in causing or aggravating a claimant's injuries" ( see id.) ( See also McDonald v State of New York, 307 AD2d 687, 689 [3rd Dept 2003]; Colegrove v County of Steuben, 216 AD2d 888, 888-89 [4th Dept 1995].) In such cases, "[t] he fact that no negligent act of the [responsible authority] caused the [claimant's] vehicle to collide with [a second] vehicle" before hitting an inadequate guardrail is "irrelevant." ( See Kirisits v State of New York, 107 AD2d 156, 158 [4th Dept 1985]; see also Gutelle v City of New York, 55 NY2d 794, 796; Hill v Town of Reading, 18 AD3d at 914.)
In both Tauraso v Texas Co. ( 275 AD 856, aff'd 300 NY 567) and Weber v City of New York ( 24 AD2d 618, aff'd 17 NY 790), a pedestrian on the sidewalk was struck by an automobile using a gasoline service station. The courts rejected claims against the owners and lessees of the service stations, concluding that "[t] here was no causal connection between the location of pumps and the negligent operation of the automobile . . . which . . . was the sole cause of the accident." ( See Tauraso v Texas Co., 275 AD at 857; Weber v City of New York, 24 AD2d at 619.)
In these cases, and others, "[t] he courts have rejected attempts by plaintiffs . . . to show a causal connection between the design or maintenance of . . . premises and negligent operation of a vehicle." ( See Margolin v Friedman, 43 NY2d 982, 983; see also Rodriguez v Hernandez, 37 AD3d at 810-11; Engel v Eichler, 290 AD2d 477, 481 [2nd Dept 2002]; Comolli v 81 and 13 Cortland Associates, L.P., 285 AD2d 863 864-65 [3rd Dept 2001]; Rodriguez v Gutierrez, 217 AD2d 692, 692 [2nd Dept 1995]; Abazis v Parks, 189 AD2d 739, 740 [2nd Dept 1993]; Rivera v Goldstein, 152 AD2d 556, 557 [2nd Dept 1989]; Grandy v Bavaro, 134 AD2d 957, 958 [4th Dept 1987]; Marcroft v Carvel Corp., 102 AD2d 651, 652 [2nd Dept 1986].) An articulated principle for the result in these cases is that the negligence of the driver of the vehicle was an "intervening act" that was not "a normal or foreseeable consequence of the situation created by the defendant's negligence." ( See Engel v Eichler, 290 AD2d at 480-81; Rodriguez v Gutierrez, 217 AD2d at 692; Rivera v Goldstein, 152 AD2d at 557.)
There are cases, on the other hand, presenting similar situations, in which the court has ruled that a vehicle's invasion of a pedestrian area was not, as a matter of law, an unforeseeable consequence of the negligent failure to provide barriers or other protection against vehicle traffic. ( See Fuller v Marcello , 17 AD3d 1017, 1018-19 [4th Dept 2005]; Phelan v Ferello, 207 AD2d 874, 875 [2nd Dept 1994]; Arena v Ostrin, 134 AD2d 306, 307 [2nd Dept 1987]; Flynn v Farias, 139 Misc 2d 699, 702-05 [Sup Ct, New York County 1988].) As one court stated, it was not prepared to conclude, as a matter of law, that a car's "crashing through [a] storefront," while its driver was attempting to park in the store's parking lot, was unforeseeable, or that the driver's "intervening act of negligence was of such an extraordinary nature or so attenuated the [store owner's] possible negligence from the ultimate injuries as to be deemed a superseding cause necessarily relieving [the store owner] of liability." ( See Arena v Ostrin, 134 AD2d at 307.)
It should be unnecessary to expressly note that neither Tomassi, nor Touraso and Weber, nor their progeny, require the conclusion that, as a matter of law, a defendant's negligence can never be a proximate cause of an injury if a concurring cause-in-fact of the injury is the negligence of a driver of a vehicle that leaves a roadway or other defined path or place for vehicular traffic. With one exception, none of the cases even addresses the liability of the City, or other subdivision of the State, for negligence in the design, construction, or maintenance of a curb.
In Chunhye Kang-Kim v City of New York ( 29 AD3d 57), the plaintiff's theory of liability was that "because of poorly placed traffic devices," an intersection at Union Square Park in Manhattan "presented an unreasonable hazard to pedestrians," and that "the City was negligent in failing to erect barriers or a curb of appropriate height to protect pedestrians and bicyclists" ( see id., at 58-59.) In an extensive opinion, vacating a judgment for the plaintiff after trial, the court summarized the evidence supporting the plaintiff's theory, and found it wanting.
Among other things, the court stated that the plaintiff's expert offered no authority for his opinion that "a barrier or higher curb should have been placed at the entranceway to Union Square Park to protect pedestrians and bicyclists," and "offered no scientific basis for his conclusion that a vehicle traveling 5 to 10 miles per hour would not have mounted the sidewalk if the curb had been eight inches high." ( See id., at 61.) The court also noted the testimony of the City's traffic control expert that "a barrier curb . . . about eight inches high . . . is used to provide a separation between a roadway and the sidewalk . . . to facilitate drainage of water . . . and is not intended as a pedestrian safely device." ( See id., at 59-60.)
In short, the plaintiff had failed to prove either breach of duty or causation-in-fact. "There [was] simply no evidence that the intersection was dangerous . . . and the only proximate cause of plaintiff's injuries was, as a matter of law, [a] drunken driver's" negligence. ( See id., at 62.) The court cited Tomassi in stating that the design characteristics of the intersection at Union Square "establish that travel beyond the limits of the roadway was neither contemplated nor foreseeable'" ( see id. [ quoting Tomassi v Town of Union, 46 NY2d at 97]), and cited Weber in stating that "[t] here was no causal connection between the absence of barriers or the height of the curb and the negligent operation of the automobile, which was the sole legal cause of the accident" ( see id., at 62.)
Whatever challenges Chunhye Kang-Kim may present to Plaintiff here in making her prima facie case, and they are not insubstantial, that decision does not warrant dismissal of her claims. Plaintiff here cannot be saddled with the deficiencies in expert proof that were identified in Chunhye Kang-Kim, particularly where, for purposes of these motions, the moving Defendants concede a breach of duty and causation-in-fact. Indeed, the court distinguished the cases, discussed above, in which the failure "to install guard rails or barriers was found to constitute negligence," because in those cases "the need for such safety devices was necessitated by a known dangerous condition or a prior history of accidents at the site." ( See id., at 61.)
Generally, the determination of legal cause is one of fact ( see Derdiarian v Felix Contracting Corp., 51 NY2d at 315), and, assuming both breach of duty and causation-in-fact, the Court here cannot say that "the sequence of events leading to the plaintiff[s'] injuries was so extraordinary and far removed from any alleged breach of the defendant[s'] duty of care as to be unforeseeable as a matter of law" ( see Taylor v Bedford Check Cashing Corp ., 8 AD3d 657, 657-58 [2nd Dept 2004].) Indeed, given the essential relationship between duty and proximate cause, unless it is shown that "the risk of the intervening act is [not] the very same risk which renders the actor negligent" ( see Dediarian v Felix Contracting Corp., 51 NY2d at 316), a determination (or concession) of breach of duty and causation-in-fact would seem to lead to a finding of proximate cause.
Because neither the City nor the Bank has established prima facie that it is entitled to judgment ( see Zuckerman v City of New York, 49 NY2d 557, 562), their respective motions must be denied, and it is unnecessary to consider whether Plaintiff has raised a triable issue on any of the elements of negligence ( see Winegrad v New York University Med. Ctr., 64 NY2d 851, 853.)
Although "multiple summary judgment motions in the same action are generally disfavored and should be discouraged in the absence of newly discovered evidence or other sufficient cause" ( Detko v McDonald's Restaurants of New York, Inc., 198 AD2d 208, 209 [2nd Dept 1993]), "sufficient cause" might be found in a showing that a further motion "will further the ends of justice while eliminating an unnecessary burden on the resources of the courts" ( see id.)
The respective motions of the City of New York and Independence Community Bank Corp. are denied.