CARLEBACH v. CITY OF NEW YORK (2019)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered July 13, 2017, which granted defendant City of New York's motion for summary judgment, unanimously affirmed, without costs.

Plaintiff alleges that she tripped and fell when, while crossing the street at an intersection, she placed her cane into a small opening within a manhole cover.  The City may be held liable for a discretionary traffic planning decision only where either (1) its study of a known hazard was plainly inadequate or (2) where there was no reasonable basis for its plan (see Affleck v. Buckley, 96 N.Y.2d 553, 556, 732 N.Y.S.2d 625, 758 N.E.2d 651 [2001] ).  Here, the City's papers in support of its summary judgment motion demonstrated, prima facie, that it was unaware that the design or placement of the manhole would give rise to any hazard requiring a study (see Turturro v. City of New York, 28 N.Y.3d 469, 486, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016] ).  The City made a further prima facie showing that it had a reasonable basis both for the design of the manhole cover (which had trapezoid-shaped openings to capture water buildup) and for its placement of the manhole to facilitate drainage at the intersection (see Nowack v. New York City Tr. Auth., 40 A.D.3d 510, 511, 834 N.Y.S.2d 858 [1st Dept. 2007], lv denied 14 N.Y.3d 712, 2010 WL 2196650 [2010] ).  In opposing the motion, plaintiff failed to present evidence (such as of prior similar accidents or of a violation of any mandatory safety standard) that would raise an issue of fact as to whether the City lacked a reasonable basis for its design or placement of the manhole (see Chunhye Kang–Kim v. City of New York, 29 A.D.3d 57, 60, 810 N.Y.S.2d 147 [2006] ).

We note that, to the extent that plaintiff's injuries were caused by a dangerous condition within the purview of Administrative Code of the City of N.Y. § 7–201(c)(2), we find that the City met its initial burden of establishing that it received no prior written notice of the defective condition (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ).  The City, which owns the manhole cover, submitted records demonstrating that the manhole at issue was installed in the subject location at least two years prior to plaintiff's accident and there were no repairs or complaints about the condition of the manhole cover, thereby shifting the burden to plaintiff.  In opposition, plaintiff has failed to raise an issue as to whether the City caused the condition through affirmative negligence, which “immediately result[ed]” in a defective condition (Brown v. City of New York, 150 A.D.3d 615, 616, 56 N.Y.S.3d 67 [1st Dept. 2017], citing Bielecki v. City of New York, 14 A.D.3d 301, 301, 788 N.Y.S.2d 67 [1st Dept. 2005];  see also Tomashevskaya v. City of New York, 161 A.D.3d 511, 73 N.Y.S.3d 433 [1st Dept. 2018];  cf. Bania v. City of New York, 157 A.D.3d 612, 614, 70 N.Y.S.3d 183 [1st Dept. 2018] [accident occurring within 10 days of the City's work found to be “immediate”] ).

Accordingly, the City was entitled to summary judgment.