Duguay v. City of New York

Decision Date20 March 2012
Docket NumberNo. 10 Civ. 739(NRB).,10 Civ. 739(NRB).
PartiesRoger DUGUAY, Plaintiff, v. CITY OF NEW YORK, F.J. Sciame Constr. Co., Inc., Baroco Contracting Corp., Manetta Indus. Inc., Manetta Enters. Inc., and Consol. Edison Co. of New York, Inc., Defendants.
CourtU.S. District Court — Southern District of New York

OPINION TEXT STARTS HERE

Bruce J. Cheriff, Esq., Cheriff & Fink, P.C., New York, NY, for Plaintiff.

John F. Gillespie, Esq., Ahmuty, Demers & McManus, New York, NY, for Defendants City of New York, F.J. Sciame Constr. Co., Inc., and Baroco Contracting Corp.

Thomas G. Vaughan, Esq., Jones, Hirsch, Connors & Bull P.C., New York, NY, for Defendants Manetta Indus. Inc. and Manetta Enters. Inc.

Vivian Dole–Merson, Esq., New York, NY, for Consol. Edison Co. of New York, Inc.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

I. Introduction

Roger Duguay (the plaintiff) brings suit against the City of New York (the City), F.J. Sciame Construction Co., Inc. (“FJS”), Baroco Contracting Corp. (Baroco), Manetta Industries Inc. and Manetta Enterprises Inc. (together Manetta), and Consolidated Edison Co. of New York, Inc. (ConEd) (collectively the defendants), seeking damages arising from an accident that he alleges was caused by the negligence of defendants. Before the Court are two motions for summary judgment: one filed jointly by the City, FJS, and Baroco and one filed independently by Manetta.1 In addition to seeking summaryjudgment on plaintiff's negligence claim, both of these motions also seek summary judgment on the various cross claims asserted against each moving defendant by their co-defendants. For the reasons stated below, the City, FJS, and Baroco's motion is granted 2 and Manetta's motion is denied,

II. Background3
A. The Accident

On the afternoon of July 10, 2009, plaintiff was walking south along Madison Avenue with three of his relatives toward the Whitney Museum of American Art when he approached the northwest corner of Madison Avenue and 77th Street (the “northwest corner”). J. Defs.' R. 56.1 ¶ 1; Vaughan Aff. Ex. D (“Duguay Dep.”) Tr. 19:20–20:5, 94:25–95:4. Arriving at the northwest corner, plaintiff waited for between five and ten seconds before the pedestrian traffic light illuminated. J. Defs.' R. 56.1 ¶ 2. Standing on the curb approximately eighteen inches over from the western boundary of the crosswalk that traverses 77th Street (the “crosswalk”), plaintiff stepped off of the curb and into the crosswalk with his left foot. Id.; Manetta R. 56.1 ¶ 9. As he stepped from the curb, plaintiff was looking south but did not look down to where his left foot would land in the crosswalk. Duguay Dep. Tr. 20:15–22:24.

At his deposition, plaintiff explained that his [left] foot went into a very uneven surface,” which he believed “was deeper than what ... the street should be.” Id. at 20:11–14. In particular, plaintiff estimated that the depressed area on which his left foot landed was four to five inches below the level of the street. Id. at 97:1–10. Plaintiff's brother-in-law, Bruce Dyer (“Dyer”), who was one of the relatives walking with plaintiff, swears that he witnessed plaintiff step into this depressed area, which he states “was completely caked with dirt, asphalt[,] and cement,” and that [a]s soon as [plaintiff's] foot touched [down], he twisted his ankle and fell to the ground.” Cheriff Aff. Ex. E (“Dyer Aff.”) ¶¶ 1–3, 5. Having similarly stated at his deposition that his left ankle twisted underneath him and caused him to fall forward, plaintiff was asked, “Did you feel something under your left foot that caused your left ankle to twist?” to which he responded, “I don't recall exactly. I do know that there were some stones around, and I think I might have hit one of the stones. I hit some soft material. I can't be positive.” Id. at 120:18–121:6. Falling onto the street, plaintiff's left hand and forehead hit the pavement. Id. at 23:20–24:8. Standing with the assistance of his relatives, plaintiff rested against a low construction barrier that was positioned beside the crosswalk. Id. at 24:12–18, 25:24–27:5. Rising from the construction barrier after a matter of seconds, plaintiff lost consciousness and again fell forward and according to Dyer struck his head on the curb. Id. at 26:18–27:10, 123:10–16; Dyer Aff. ¶ 5.

When plaintiff regained consciousness, his relatives helped him into a sitting position on the curb, approximately in the same place where he had earlier stepped off from the curb and into the crosswalk. Duguay Dep. Tr. 28:4–25. In particular, plaintiff testified at his deposition that he was sitting two feet from the western boundary of the crosswalk. Id. at 30:11–24. As he sat on the curb, plaintiff stated that his feet were resting in a depression roughly two feet by two feet with a “very uneven surface” composed of “a lot of dirt and debris and some trash, light small pieces of trash, “which he clarified consisted of” [b]its of paper.” Id. at 29:1–30:7; J. Defs.' R. 56.1 ¶ 3. Plaintiff further testified that pieces of metal were visible on the far edge of the depression from the curb. Duguay Dep. Tr. 31:16–32:14. An ambulance soon arrived and brought plaintiff for treatment to a local hospital. Id. at 33:19–37:6.

During his deposition, plaintiff was shown photographs taken on the day of his accident that depict the northwest corner, and in two of these photographs, he circled a seemingly depressed area abutting the curb and within the crosswalk that appears filled with dirt and debris as reflecting the approximate area where his left foot landed when he originally stepped off the curb. See id. at 42:20–47:9, 51:14–53:18; Duguay Dep. Exs. 4, 7. During his deposition, plaintiff was also shown photographs taken five to ten days after his accident that similarly depict the northwest corner and a clear catch basin in the depressed area that in the earlier photographs plaintiff circled and that appeared filled with dirt and debris. See Duguay Dep. Tr. 44:2–6, 60:10–11; Duguay Dep. Exs. 1–3.

B. The Catch Basin

According to George Crimarco (“Crimarco”), a construction laborer employed by the City's Department of Environmental Protection (“DEP”), a “catch basin” sits “in the street right off the curb to catch rainwater or ... water from an open hydrant, or if somebody [i]s ... washing the street down, [then] the water would come into the catch basin.” Gillespie Affirm. Ex. P (“Crimarco Dep.”) Tr. 8:12–17, 12:16–22. On the surface, the catch basin consists of a metal grating that is intended to be on a level grade with the surrounding street. See id. at 70:25–74:24. As Crimarco further explained during his deposition, water that enters the catch basin through this grating runs down to the sewer, either directly or via an inlet pipe, which in some cases connects to a well for excess water. See id. at 13:7–16, 61:15–62:8. Crimarco stated that a catch basin with an inlet pipe is not as deep and is more prone to becoming clogged. See id. at 15:20–16:6. Shown the same photographs of the catch basin in the crosswalk on the northwest corner previously shown to plaintiff, Crimarco identified the catch basin as an inlet pipe catch basin. See id. at 14:17–15:7, 15:14–19.

Prior to July 10, 2009—the day of plaintiff's accident—public records indicate that employees of DEP on a number of occasions visited the vicinity of the northwest corner to address issues relating to catch basins. It must be noted that there is more than one catch basin on the northwest corner: one catch basin, depicted in the photographs shown to plaintiff and Crimarco, sits in the crosswalk on the north side of 77th Street and the other catch basin sits around the corner on the west side of Madison Avenue. See Gillespie Affirm. Ex. O (“O'Connell Dep.”) Tr. 23:14–25:7 (discussing catch basin on Madison Avenue). To the extent that the public records often refer to a catch basin on the northwest corner there is thus some ambiguity as to which catch basin is referenced.

On October 19, 2007, a member of the public called to advise that the “catch basin located at [the] north west corner of [E]ast 77[th] [Street was] causing water ponding on rainy days.” Cheriff Aff. Ex. G (“DEP Records”) Ex. 11. 4 In response to this telephone call, on October 22, 2007, employees of DEP visited the site and recorded their observation that there was a construction site on the northwest corner and that some part of a catch basin was “filled with cement.” Id.5 On October 26, 2007, however, employees of DEP found that the “catch basin was taking water due to heavy rain.” Id. Crimarco separately testified to the meaning of a catch basin “taking water,” which phrase connotes that water is able to go down the catch basin to the sewer. Crimarco Dep. Tr. 35:11–21.

On April 2, 2008, a member of the public called to advise that there was a “SIN[K] HOLE [in front of] THE MARK B[uilding] 5 [feet] WIDE and 1 FOOT DEEP NEAR GRATING ON CATCH BAS[I]N. DEP Records Ex. 8.6 On May 16, 2008, a member of the public separately called to advise that there was a “FLOODING ROADWAY AT [the] INTERSECTION” and that there was also “WATER OVERFLOWING ... ONTO [the sidewalk].” DEP Records Ex. 6. In response to these telephone calls, employees of DEP visited the vicinity of the northwest corner on at least May 2, 2008, May 5, 2008, May 17, 2008, and May 20, 2008. See DEP Records Exs. 6–10, 12. During these visits, the catch basin “on [the] north west corner” was cleaned and flushed, however cement was discovered in the well and inlet pipe of the catch basin on the “north side of East 77[th] [S]treet” and could not be penetrated. DEP Records Ex. 9. See Crimarco Dep. Tr. 55:25–57:13, 62:14–66:2. There is no indication from the records relating to the two reports received in April and May 2008 that employees of DEP confirmed the existence of a sink hole let alone repaired or attempted to repair one.

On April 3, 2009, a member of the public called to advise that “THE CATCH BASIN AT...

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