BARRETT v. CITY OF NEW YORK (2017)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/ Petition/Cross Motion And Affidavits (Affirmations) 1A—1B

Opposing Affidavits (Affirmations) 2A—2B

Reply Affidavits (Affirmations) 3

Introduction

Defendant, the City of New York, moves by notice of motion, sequence number three, pursuant to CPLR § 3212 for an order granting summary judgment, dismissing plaintiff's complaint with prejudice, and for such other and further relief as the court deems just and proper. Plaintiff, Judy Barrett, opposes this application.

Background

Plaintiff allegedly sustained personal injuries on June 26, 2010, when she tripped and fell on a patch in the roadway in the vicinity of 68 and 72 East Third Street, between Greenwood Avenue and Vanderbilt Street, in Brooklyn, New York (see Notice of Motion, Exhibit A, Proposed Amended Notice of Claim).

Plaintiff testified at a statutory hearing pursuant to General Municipal Law (GML) § 50–h on March 22, 2011, and at an examination before trial (EBT) on February 5, 2013 (see generally, Notice of Motion, Exhibit B, 50–h Transcript; see also Notice of Motion, Exhibit F, EBT Transcript).¹ Plaintiff testified that the defect was an oval shaped “pothole”, approximately four to five feet wide and seven to eight feet long (see Barrett 50–h at 23–24). The pothole was partially filled in with tar which was not flush with the surrounding asphalt. She described the inner portion of the pothole as sunken, while the outer edges of the pothole were “rough and raised” (Barrett 50–h at 23–24). The portion of the patch where plaintiff's “foot lost balance was higher than the surrounding roadway” (Barrett EBT at 38). Plaintiff further testified that residents of a neighboring property made multiple telephonic complaints about this roadway condition prior to date of plaintiff's incident (Barrett EBT at 19–20, 96).

Records Search

Charlene Mui, an employee at the Department of Transportation of the City of New York (DOT), in the Office of Litigation Services and Records Management submitted an affidavit, sworn to on July 29, 2016 (see generally Notice of Motion, Exhibit I, Charlene Mui Affidavit). In her affidavit, Ms. Mui stated that she personally conducted a search for “permits, applications for permits, corrective action requests, notices of violation, inspections, contracts, maintenance and repair orders, complaints, gangsheets for roadway work and milling and resurfacing records for the roadway located at East 3rd Street, between Greenwood Avenue and Vanderbilt Street” (Mui Affidavit at ¶ 3). The results of this search for two years prior to and including June 26, 2010, the date of the incident, were four permits, four inspections, and three complaints.

Permits

Four permits were issued for East Third Street between Greenwood Avenue and Vanderbilt Street. One was issued to Arco General Contractor, Inc., allowing them to place a container and occupy the roadway in front of 23 East Third Street from July 10 to August 9, 2008 (permit No. B02–2008192–146). The remaining three permits were issued to Con Edison, allowing them to open the roadway for repairs in 2010. Two of these Con Edison permits allowed roadway cuts at 29 East Third Street, and 15 East Third Street (B01–2010129–004 and B01–2010129–005, respectively). The remaining Con Edison permit did not specify an address. This permit, # B01–2010027–084, issued on January 27, 2010, and valid on February 25, 2010, permitted Con Edison to open the roadway for a maximum of 10 feet to “repair traffic street light” (see generally Notice of Motion, Exhibit I).

 Inspections and Complaints

Ms. Mui's search indicated that three complaints were made and four inspections were conducted on East Third between Greenwood Avenue and Vanderbilt Street. Three of the inspections are DASH (Dynamic Access System for HIQA) ² records which correspond to three of the four permits issued. Two of the DASH inspections indicated passing inspections related to the permits in front of 15 East Third Street and 29 East Third Street. The third inspection record indicated that an inspection was conducted on January 27, 2010, in relation to permit # B01–2010027–084. Again, there is no house number listed on this inspection record. The result of the inspection by Vincent Szynal was “pass” (see generally Notice of Motion, Exhibit I).

The fourth inspection record indicated that three complaints were made to the 311 Call Center. The first complaint was made on October 21, 2008, for “defective hardware” at 43 East 3rd Street. The second complaint, made on February 24, 2009, for “failed street repair” at 58 East Third Street, was described as “concrete around hydrant” (SR # 1–1–451259210). The third 311 complaint, created on March 17, 2010, also related to a “failed street repair” (SR # 1–1–548649678). The complaint was for a “sunken street cut” at 67 East Third Street, near the location of the incident. An inspection was conducted on March 23, 2010, and DOT inspector Anthony Reyes reported that “the condition was not found, therefore no action was taken” (see generally Notice of Motion, Exhibit I; see also Affidavit in Opposition, Exhibit D, Plaintiff's Exhibit 14). In the complaint form section labeled “Resolution Action” the matter complained of was described as “Not Found” (see generally Notice of Motion, Exhibit I). Inspector Reyes testified at an EBT on September 18, 2013 (see generally, Notice of Motion, Exhibit H). Reyes testified that he had no independent recollection of this inspection (see Reyes EBT at 23, 26), however, based upon the inspection record, Reyes inspected the location of the incident three months prior.

Big Apple Map

Ms. Mui also conducted a search for Big Apple Maps for the location of this incident. This search resulted in one map, Vol. 10A, page 40, which was served on the DOT on February 2, 2004 (see Notice of Motion, Exhibit I, Mui Affidavit; see also Exhibit I, Big Apple Map).³

Discussion

Summary Judgment

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 (see Gammons v. City of New York, 24 NY3d 562, 25 N.E.3d 958 [2014], citing Alvarez v. Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572 [1986] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle, 126 AD3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 NY3d 499, 965 N.E.2d 240 [2012] ).

“Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it ‘should only be employed when there is no doubt as to the absence of triable issues’ of material fact” (Bonaventura v. Galpin, 119 AD3d 625, 988 N.Y.S.2d 866 [2 Dept., 2014], citing Andre v. Pomeroy, 35 NY2d 361, 320 N.E.2d 853 [1974] ). “In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party” (Boulos v. Lerner–Harrington, 124 AD3d 709, 2 N.Y.S.3d 526 [2 Dept., 2015], citing Pearson v. Dix McBride, LLC, 3 AD3d 895, 883 N.Y.S.3d 53 [2 Dept., 2009] ). “It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact” (Vega v. Restani Const. Corp., 18 NY3d 499, supra, citing Sillman v. Twentieth Century—Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387 [1957] [“Issue-finding, rather than issue-determination, is the key to the procedure”] ).

Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh, 144 AD3d 858, 41 NYS3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital, 68 NY2d 320, supra; see also Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 11 N.E.3d 693 [2014]; see also Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718 [1980] ).

New York City Administrative Code § 7–201

“Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City” (Bartels v. City of New York, 125 AD3d 583, 585, 6 N.Y.S.3d 60 [2 Dept., 2015], citing Katz v. City of New York, 87 NY2d 241, 638 N.Y.S.2d 593 [1995] ). “Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries arising from a defective roadway unless it has received written notice of the defect, or an exception to the written notice requirement applies (Hanley v. City of NY, 139 AD3d 800, 32 N.Y.S.3d 261 [2 Dept., 2016], citing Yarborough v. City of New York, 10 NY3d 726, 853 N.Y.S.2d 261 [2007]; see also Bartels v. City of New York, 125 AD3d 583, supra ).

“Administrative Code of the City of New York § 7–201 limits the City's duty of care over its streets and sidewalks by imposing liability only for those defects [of] which its officials have been actually notified exist at a specified location” (Katz v. City of New York, 87 NY2d 241, supra; see also Gorman v. Town of Huntington, 12 NY3d 275, 879 N.Y.S.2d 379 [2009], citing Poirier v. City of Schenectady, 85 NY2d 310, 624 N.Y.S.2d 555 [1995] ). New York City Administrative Code (N.Y.C. Admin. Code) “§ 7—201(c) requires a plaintiff to ‘plead and prove that the City had prior written notice of a roadway defect, or dangerous or obstructed condition before it can be held liable for its alleged negligence related thereto’ [internal quotation marks omitted] (Rodriguez v. City of NY, 130 AD3d 999, 14 N.Y.S.3d 155 [2 Dept., 2015], quoting Minew v. City of New York, 106 AD3d 1060, 966 N.Y.S.2d 476 [2 Dept., 2013] ).

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” (Breest v. Long Island R.R., 140 AD3d 819, 33 N.Y.S.3d 420 [2 Dept., 2016], quoting Foster v. Herbert Slepoy Corp., 76 AD3d 210, 905 N.Y.S.2d 226 [2 Dept., 2010]; see also Wald v. City of New York, 115 AD3d 939, 982 N.Y.S.2d 534 [2 Dept., 2014] ). Where plaintiff alleges in the complaint that the City created the alleged defect, the City must “establish, as part of its prima facie showing, both that it did not receive prior written notice of the alleged defect, and that it did not create the alleged defect through an affirmative act of negligence” (Wald v. City of New York, 115 AD3d 939, supra ). N.Y.C. Admin. Code § 7–201 (c) provides that,

2. No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.

․

4. Written acknowledgement shall be given by the department of transportation of all notices received by it.

“Thus paragraph (2) of the law lists three alternative prerequisites to an action: (1) ‘written notice ․ actually given to the commissioner of transportation’ or his designee; (2) ‘previous injury to person or property ․ and written notice ․ given to a city agency’; or (3) ‘written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition.’ ” (Bruni v. City of New York, 2 NY3d 319, 778 N.Y.S.2d 757 [2004], quoting N.Y.C. Admin. Code § 7–201).

The Court of Appeals in Bruni v. City of New York discussed the alternative to prior written notice-written acknowledgement (2 NY3d 319, supra ). In Bruni v. City of New York, the court held that a written statement showing that the city agency responsible for repairing a condition had first-hand knowledge both of the existence and the dangerous nature of the condition is an “acknowledgement” sufficient to satisfy the Pothole Law the “acknowledgement alternative in paragraph (2) of the Pothole Law appears to be designed to make written notice to DOT unnecessary where there is documentary evidence that serves the same function—to demonstrate that the responsible city agency knew of the hazard and had an opportunity to remedy it. This purpose can be served as well by an internal document as an external one. (id.).

As an initial matter, plaintiff's pleadings allege that the City had prior written notice of the roadway condition through a City agency, written acknowledgement of that defect was given, and the City caused and created the defective condition (see Notice of Motion, Exhibit C, Verified Complaint at ¶ 20 and 12; see also Notice of Motion, Exhibit E, Verified Bill of Particulars at ¶ 20 and 25). To meet their prima facie burden, the City must establish “both that it did not receive prior written notice of the alleged defect, and that it did not create the alleged defect through an affirmative act of negligence” (Wald v. City of New York, 115 AD3d 939, supra ).

In the instant case the City met their prima facie burden and established entitlement to summary judgment as a matter of law. The City provided an affidavit from DOT searcher Charlene Mui who stated that the DOT conducted a two years search of East Third Street between Greenwood Avenue and Vanderbilt Street. This search resulted in four permits, four inspections, three complaints and a Big Apple Map. None of the records, including the Big Apple Map, provided prior written notice of a defect near the incident location.⁴ Furthermore, there is no proof that the City caused and created the roadway cutout. The three permits for opening the roadway were issued to Con Edison. No permits were issued for the City or any City Agency to conduct street repairs.

The only record at issue herein which could serve to provide prior written notice is 311 complaint/DOT inspection SR # 1–1–548649678. A complaint dated March 17, 2010, was made to the 311 Call Center about a sunken street cut located at 67 East Third Street. This complaint was investigated by DOT employee Anthony Reyes on March 23, 2010. According to inspection record SR # 1–1–548649678, Reyes reported that no sunken cuts or roadway defects were found at this location, and therefore no action was taken.

Plaintiff contends that DOT inspection record SR # 1–1–548649678 provided the City with prior written notice of the defect because it served as “an acknowledgement of the defect and that it needs to be repaired” as defined by the Court of Appeals in Bruni v. City of New York (2 NY3d 319, supra ). Contrary to plaintiff's contention, this record shows only that a complaint was made, DOT investigated, and the inspector did not find any defects at that location. Although this record may serve as a written acknowledgement that a complaint was made of a defect at that location, it is not a “written acknowledge” that a defect existed, as defined by Bruni.

In Bruni, the DEP responded to a complaint of a sunken and damaged catch basin. The record at issue was a “Foreman's Report” which reflected the investigator's personal observation that the catch basin was “caving”. His report provided a suggested remedy of a “cold patch” or “coal patch”. The report included the investigator's sketch of the problem area and the investigators opinion that the location was safe at the time. The Court of Appeals held that “the documents show beyond any question that the City was aware both that there was a hole in the street and that it was dangerous” (2 NY3d 319, supra ). Comparatively, in the instant case, the record merely reflected that a 311 caller complained of a defect which was investigated and no defect was “found”. Unlike Bruni, this documentary evidence does not demonstrate that “the responsible city agency knew of the hazard and had the opportunity to remedy it” (id.). Rather, the report indicated that there was nothing to be found. At his deposition, DOT Inspector Reyes had no independent recollection of that inspection. Therefore, the City established that they had no prior written notice of the defect inasmuch as the records indicated that there was no defect and that they did not cause and create a defect.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff contends that “the records show that the City went to the scene but not that they actually inspected the defective area” (Plaintiff Memorandum of Law [2B] at p 3). Plaintiff further argues that DOT Inspector Reyes' EBT testimony is so incredible that it raises material issues of fact and “the defect was so blatant that any competent inspector would have seen it” (Plaintiff Memorandum of Law [2B] at p 3).⁵

Under the Pothole Law, prior written notice is a condition precedent to a civil suit against the City. “Neither actual nor constructive notice obviates the need for prior written notice under the Administrative Code” (Minew v. City of NY, 106 AD3d 1060, 966 N.Y.S.2d 476 [2 Dept., 2013]; see also Farrell v. City of NY, 49 AD3d 806, 854 N.Y.S.2d 470 [2 Dept., 2008] ). The only two exceptions to the prior written notice requirement are special use and cause and create. “Only when one of these exceptions applies is the written notice requirement obviated” (Rodriguez v. City of NY, 130 AD3d 999, 14 N.Y.S.3d 155 [2 Dept., 2015], citing Carlucci v. Village of Scarsdale, 104 AD3d 797, 961 N.Y.S.2d 318 [2 Dept., 2013] ). In the instant case, the two exceptions to prior written notice are not applicable. The records provided by the City do not show that the City caused and created the defect. There is no contention herein that the City benefits from a special use.

This Court recognizes the shortcomings of the Pothole Law. “The failure to demonstrate prior written notice leaves plaintiff without legal recourse against the City for its purported nonfeasance or malfeasance in remedying a defective sidewalk. Because this prior written notice provision is a limited waiver of sovereign immunity, in derogation of common law, it is strictly construed” (Katz v. City of NY, 87 NY2d 241, 661 N.E.2d 1374 [1995], citing Laing v. City of New York, 71 NY2d 912, 528 N.Y.S.2d 530 [1988] ). More recently, when analyzing the pothole law, the Court of Appeals stated that

[t]he purpose of a prior written notice provision is to place a municipality on notice that there is a defective condition on publicly-owned property which, if left unattended, could result in injury. This ensures that a municipality, which is not expected to be cognizant of every crack or defect within its borders, will not be held responsible for injury from such defect unless given an opportunity to repair it. The policy behind this rule is to limit a municipality's duty of care over its streets and sidewalks “by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location”

(Gorman v. Town of Huntington, 12 NY3d 275, 907 N.E.2d 292 [2009], quoting Poirier v. City of Schenectady, 85 NY2d 310, 624 N.Y.S.2d 555 [1995] ).⁶

Under N.Y.C. Admin. Code § 7–201 and the Bruni definition of “written acknowledgement”, even assuming that Reyes went to the scene and inspected “with his eyes closed”, that does not change the fact that the inspection record does not acknowledge the presence of a defect at that location and therefore, cannot provide the City with prior written notice of a roadway defect. Furthermore, it is undisputed herein that 311 complaint calls reduced to writing also do not constitute prior written notice (see Tortorici v. City of New York, 131 AD3d 959, 16 N.Y.S.3d 572 [2 Dept., 2015] ). Although plaintiff suggests that Reyes' testimony in which he did not recall the inspection may raise a question of fact relating to the competency of the DOT inspector, it does not raise a question of fact as to whether the City had prior written notice of the defect. Therefore, plaintiff failed to raise a triable issue of fact.

Conclusion

Accordingly, the City's motion for summary judgment is granted. The City demonstrated that there was no prior written notice of the defect. In opposition, plaintiff failed to raise a triable issue of fact. The record in question was insufficient to constitute an “acknowledgement” as defined by the Court of Appeals.

The foregoing constitutes the decision and order of this Court.

FOOTNOTES

1.   This Court notes that pages 34–37 and page 57 of the 50–H transcript are missing.

2.   HIQA stands for Highway Inspection Quality Assurance (see Notice of Motion, Exhibit H, EBT of Anthony Reyes at p 11).

3.   This Court notes that the copy of the Big Apple Map annexed to the City's motion, as Exhibit I, attached to the Mui Affidavit is too small to read.

4.   This Court again notes that although the Big Apple Map annexed to the City's motion was so small that no streets or markings were discernable, plaintiff does not contend that the Big Apple Map provided prior written notice.

5.   This Court notes that the photographs annexed to plaintiff's affirmation in opposition are dark black and white photographs of the street. Although counsel for plaintiff describes the defect as “blatant” from the photographs, no blatant defects are discernible from the copies provided.

6.   This Court notes that the prior written notice provision at issue in Gorman, § 174–3, which is “similar in effect to Town Law § 65–a (2)”, is not analogous to the New York City Administrative Code, specifically in that it does not include an acknowledgment provision. Notwithstanding this, or any inconsistencies in the facts here as compared to Gorman, it should not detract from the court's analysis of the purpose of the prior written notice law.

Lara J. Genovesi, J.