Benjamin v. City of N.Y., No. 106847/04.

CourtUnited States State Supreme Court (New York)
Writing for the CourtWILLIAM FRANC PERRY, J.
Citation58 N.Y.S.3d 873 (Table)
Parties Yannick BENJAMIN and Angela Benjamin, Plaintiffs, v. The CITY OF NEW YORK, the New York City Department of Transportation, New York City Department of Environmental Protection, New York City Department of Parks, and Trocom Construction Corp., Defendants.
Docket NumberNo. 106847/04.
Decision Date28 April 2017

58 N.Y.S.3d 873 (Table)

Yannick BENJAMIN and Angela Benjamin, Plaintiffs,
v.
The CITY OF NEW YORK, the New York City Department of Transportation, New York City Department of Environmental Protection, New York City Department of Parks, and Trocom Construction Corp., Defendants.

No. 106847/04.

Supreme Court, New York County, New York.

April 28, 2017.


William A Gallina, P.L.L.C, Bronx, for Plaintiffs.

Gia Rose Dicola, Esq., Zachary W. Carter Corporation Counsel, New York.

Eva J. Tompkins, Esq. Torino & Bernstein, P.C. Mineola, N.Y. for Trocom Construction Corp.

WILLIAM FRANC PERRY, J.

Motion sequence nos. 005 and 006 are consolidated for disposition. In motion sequence 005 THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF PARKS move, pursuant to CPLR 3212 for summary judgment seeking and order dismissing all claims and cross claims. Defendant TROCOM CONSTRUCTION CORP. also moves (sequence no. 006) for summary judgment to be entered in its favor.

This is a personal injury action arising from a single car automobile accident that is alleged to have occurred on October 27, 2003, at approximately 12:50 a.m., on a rainy evening on the Henry Hudson Parkway near the intersection of 96th Street. It is alleged that plaintiff Yannick Benjamin, on his way home to the Bronx after working a 3:30 pm to 11:00 pm shift as a server at the Ritz Carlton Hotel in Manhattan, lost control of his vehicle and veered from the middle lane of traffic to the left, where his vehicle crashed into the concrete median and then veered on a diagonal across traffic to the right where it collided with a guardrail. As a result of the accident, it is alleged that plaintiff suffered a burst fracture at T–9 and was rendered paralyzed. Defendants, The City of New York, The New York City Department of Transportation, New York City Department of Environmental Protection, New York City Department of Parks, and Trocom Construction Corp. (hereinafter Defendants, and/or City or Trocom) move for summary judgment seeking an order dismissing all claims and cross-claims pursuant to CPLR § 3212.

PROCEDURAL and FACTUAL BACKGROUND

This action was initially commenced solely against the City and the named agency defendants by service of a summons and complaint dated April 29, 2004. Plaintiffs alleged that the City defendants, as owners, operators and managers of the roadway where the subject accident occurred, had a duty to shore, guard, equip, repair construct and illuminate the roadway at or near the accident location. It is alleged that the City defendants caused plaintiff's accident by failing to properly own, maintain, manage, control, repair, and/or design the area where the accident occurred by creating an unsafe and "traplike condition" on the roadway and by failing to warn of the "dangerous and hazardous condition" on the roadway and failing to provide "those on the roadway with proper visibility to see what is on the roadway". (Affirmation of Gia Rose Dicola, Esq. dated November 30, 2015, Ex. B). Specifically, plaintiffs allege that the City was negligent in its ownership, maintenance and design of the particular section of guardrail that plaintiff's vehicle encountered on the right hand side of the Henry Hudson Parkway after he had collided with the center concrete median. Plaintiff also alleges negligence with respect to maintenance of the catch basins in the roadway which allegedly resulted in an accumulation of water on the roadway. Further plaintiffs claim that the lane markings on the roadway were deficient and contributed to his accident. (Dicola Aff, Ex. B). Plaintiff alleges that the City received prior written notice that the guiderail created a "vaulting condition", through receipt of unrelated notices of claim, however, the City contends that this allegation is neither pled nor viable.

More than two years after the action against the City was commenced, plaintiffs brought a separate action against Trocom under Index Number 110599/06, on July 25, 2006, arising from Trocom's contract with the City, alleging that Trocom had installed guardrails on the portion of the roadway where his accident occurred, causing and creating a dangerous and unsafe condition on the roadway. (Affirmation of Eva J. Tompkins, Esq. dated November 24, 2015, Ex. C). Defendants served answers denying plaintiff's claims. (Tompkins Aff, Ex. B and D). The actions against the City defendants and Trocom were consolidated under Index Number 106847/04 by stipulation, so ordered by the Court on January 16, 2007. (Dicola Aff, Ex. E).

On February 23, 2007, plaintiffs served a Verified Bill of Particulars against Trocom wherein they allege negligence in failing to paint appropriate lines on the roadway, in failing to place the guardrails in an appropriate place, in failing to place an appropriate guide rail at the site, in failing to follow design plans and drawings regarding the placement and installation of the guiderails and in failing to correct the plans, drawings and/or designs. (Tompkins Aff, Ex. E). During the pendency of this action, plaintiffs have served a total of seven (7) Verified Bills of Particulars. (Dicola Aff, Ex. F). Plaintiffs' first, second and third supplemental bill of particulars pertain to plaintiffs' alleged injuries. In Plaintiffs' fourth supplemental bill of particulars they allege that the City had actual and constructive notice of the susceptibility of the roadway to flood when it rains, deteriorated roadway markings and painted lines. In Plaintiffs' fifth supplemental verified bill of particulars they allege that the City received prior written notice of the "dangerous and hazardous condition of the guardrail" on account of the New York State Department of Transportation issuing fifteen engineering instructions.

In Plaintiffs' sixth supplemental bill of particulars, which was served on September 23, 2015 after note of issue was filed, Plaintiffs alleged that the City had actual and constructive notice that a "curb guide rail combination" at the turned down end of the subject guiderail created a vault hazard based upon the existence of DDC contract HWM 1149 and a chapter in "Highway Design Manual." The City contends that this specific allegation was raised by Plaintiffs for the first time in the sixth supplemental bill of particulars. Discovery in this action has ensued over a decade and has encompassed the exchange of numerous documents and conducting depositions of seventeen (17) witnesses, many of which continued over several days. The deposition transcripts of all pertinent witnesses have been provided to the Court in support of the Defendants' motions for Summary Judgment. (Dicola Aff, Ex. G, K–L; Tompkins Aff, Ex. L–W).

On July 31, 2015 Plaintiffs certified that all discovery was complete and filed the note of issue. (Dicola Aff, Ex. H). On the same day, plaintiffs served a Supplemental Response to Defendants' Notice for Discovery and Inspection in which they alleged that the City received prior written notice of a "vault hazard posed by a strong post guide rail, a turned-down terminal end of a guiderail, as well as the hazard posted by the relative proximity of a curb and guide rail positioned behind the curb" based upon the receipt of four prior notices of claim, regarding prior motor vehicle accidents that the City contends are completely dissimilar to the case before the Court. The Defendants' motions for summary judgment were filed within 120 days after the note of issue had been filed and are properly before the Court.1

THE ACCIDENT

The accident occurred on October 27, 2003 at 11:50 p.m. According to his testimony, Plaintiff Yannick Benjamin had just completed his 3:30 p.m. to approximately 11:00 p.m. shift as a server at the Ritz Carlton Hotel in Manhattan, when he headed over to Rue 57, located at 57th Street for a get together to celebrate the promotion of his co-worker.2 During the celebration plaintiff claims to have had a half glass of champagne. It was raining heavily that evening and plaintiff testified that his clothes were wet from walking from the bar to the parking lot where his car was parked. (Tompkin Aff. Ex. N at 302–304). Plaintiff began driving home via the northbound lane of the Henry Hudson Parkway, a route he was very familiar with having driven it at least 100 to 150 times prior to the accident. (Dicola Aff. Ex. L at 9:23–11:11). Plaintiff explained that during the year and a half he had worked at the Ritz Carlton, he drove himself to and from work four times a week, including the night of the accident. (Id. at 12:17–14:4, Ex. K at 29:6–9). Plaintiff never experienced any problems while driving this route, including when it rained; he never had a problem seeing the road and never saw an accident at the location where his accident occurred. (Id. at Ex. K. at 327:12–328:5).

Immediately before the accident, the plaintiff was travelling in the middle lane of the three-lane highway no more than 40 miles per hour and had just passed the 96th Street exit. (Dicola Aff, Ex. K at 346: 16–20). According to plaintiff's testimony, just before the accident, he felt a "gravitational pull" which "took him by surprise" and he crossed into the left lane and struck the concrete divider separating the north and southbound lanes of traffic. (Id . at 336::5–337:9). After the initial impact with the concrete divider, plaintiff's vehicle moved diagonally away from the...

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