Gonzalez v. City of N.Y.

• Decision Date: 27 June 2017
• Citation: 58 N.Y.S.3d 331,151 A.D.3d 629
• Parties: Myles GONZALEZ, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent. The City of New York, Third–Party Plaintiff–Respondent, v. Halcyon Construction Corp., Third–Party Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 629

58 N.Y.S.3d 331

Myles GONZALEZ, Plaintiff–Appellant,

v.The CITY OF NEW YORK, Defendant–Respondent.

The City of New York, Third–Party Plaintiff–Respondent,

v.Halcyon Construction Corp., Third–Party Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 27, 2017.

Pollack, Pollack, Isaac, & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for the City of New York, respondent.

McGaw, Alventosa & Zajac, Jericho (Andrew Zajac of counsel), for Halcyon Construction Corp., respondent.

SWEENY, J.P., MAZZARELLI, MOSKOWITZ, KAHN, JJ.

Judgment, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered July 17, 2015, in favor of defendant and third-party defendant, unamimously reversed, on the law, without costs, plaintiff's motion to set aside an order that had granted the motion of defendant the City of New York and third-party defendant Halcyon Construction Corp. for a directed verdict granted, the judgment vacated, the complaint and third-party complaint reinstated, and the matter remitted for a new trial. Appeal from order, same court and Justice, entered June 22, 2015, which denied plaintiff's motion to set aside the court's decision granting the City's motion for a directed verdict, unanimously dismissed, without costs, as academic.

In this personal injury action, plaintiff alleged that he was on foot, crossing the east side of Mansion Street at its intersection with St. Lawrence Avenue in the Bronx, when he fell into a sinkhole. Plaintiff's theory of the case was that the City and its pavement restoration contractor, third-party defendant Halcyon Construction Corp., performed work that resulted in the creation of the sinkhole in which plaintiff fell.

According to plaintiff, the area inside the sinkhole was mushy and wet. The evidence at trial showed that two weeks earlier, a water main in the northwest corner of the intersection had burst. The City's Department of Environmental Protection repaired the water main; approximately one week later, Halcyon backfilled the hole and repaved the intersection.

The court precluded plaintiff from introducing into evidence photographs of the sinkhole, taken two weeks after the alleged accident, finding that they did not fairly and accurately depict the way the accident site looked on the date of the alleged accident. Further, plaintiff sought to introduce highway specifications that the City had created and published through the Department of Transportation, arguing that introduction into evidence was proper because the specifications were incorporated into the contract between the City and Halcyon. The court, however, precluded plaintiff from introducing the specifications. In so doing, the court found that plaintiff failed to demonstrate that the specifications were not inadmissible "internal rules," which would improperly create a standard of care higher than the one imposed by the common law. The court also would not permit plaintiff to have the specifications marked as a court exhibit.

Further, at trial, the court quashed two of plaintiff's subpoenas, the first issued to a Halcyon employee, who, according to plaintiff, was to offer testimony concerning Halcyon's contract with the City—specifically, that the contract renewed itself, and thus, that an earlier contract was the same as the contract in effect at the time of plaintiff's alleged accident. The other subpoena was issued to a City inspector, who purportedly was to testify about his first-hand observations of Halcyon's repairs to the site. In refusing to permit plaintiff to call those two witnesses, the trial court found that plaintiff was attempting to engage in post note of issue discovery.

After plaintiff rested his case, the City and Halcyon moved separately for directed verdicts. The court granted the City's motion, and, although plaintiff had no direct claims against Halcyon, also granted Halcyon a directed verdict. In so doing, the court found insufficient evidence that defendants affirmatively created the condition. At any rate, the court found, even assuming for the sake of argument that there had been nonfeasance in making the repairs, that nonfeasance did not rise to the level of satisfying plaintiff's burden. The City did not object to the directed verdict in Halcyon's favor, and thus, its third-party complaint against Halcyon was effectively dismissed in accordance with the judgment.

Plaintiff...