Madonia v. City of N.Y.

• Decision Date: 19 September 2018
• Docket Number: Index No. 493/11,2015–10958
• Citation: 83 N.Y.S.3d 685,164 A.D.3d 1320
• Parties: Anna MADONIA, appellant, v. CITY OF NEW YORK, defendant third-party plaintiff-respondent, New York City Department of Transportation, et al., defendants-respondents; Joro Carting, Inc., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1320

83 N.Y.S.3d 685

Anna MADONIA, appellant,

v. CITY OF NEW YORK, defendant third-party plaintiff-respondent,New York City Department of Transportation, et al., defendants-respondents;Joro Carting, Inc., third-party defendant-respondent.

2015–10958

Index No. 493/11

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

Argued—January 25, 2018

Decided September 19, 2018

Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Glen Devora, Staten Island, of counsel), for appellant.

London Fischer LLP, New York, N.Y. (James Walsh and Daniel C. Perrone, New York, of counsel), for defendant third-party plaintiff-respondent and defendant-respondent New York City Department of Transportation.

Gallo Vitucci Klar LLP, New York, N.Y. (Kimberly A. Ricciardi of counsel), for defendant-respondent Frank Lomangino and third-party defendant-respondent Joro Carting, Inc.

David M. Santoro, New York, N.Y. (Stephen T. Brewi, New York, of counsel), for defendant—respondent Consolidated Edison Company of New York, Inc.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated September 23, 2015. The order, insofar as appealed from, granted (1) that branch of the motion of the defendant Frank Lomangino and the third-party defendant Joro Carting, Inc., which was for summary judgment dismissing the complaint insofar as asserted against Frank Lomangino, (2) the motion of the defendants the City of New York and the New York City Department of Transportation for summary judgment dismissing the complaint insofar as asserted against them, and (3) that branch of the motion of the defendant Consolidated Edison Company of New York, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Consolidated Edison Company of New York, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant Consolidated Edison of New York, Inc., and one bill of costs to the defendant Frank Lomangino and third-party defendant Joro Carting, Inc., and the defendants the City of New York and the New York City Department of Transportation, payable by the plaintiff.

The plaintiff allegedly was injured on July 28, 2010, when she tripped and fell on a sidewalk defect in Brooklyn. She commenced this action against the defendants City of New York and New York City Department of Transportation (hereinafter together the City defendants), Consolidated Edison Company of New York, Inc. (hereinafter Con Ed), and Frank Lomangino, the owner of commercial property that abutted the subject sidewalk. After discovery, the City defendants and Con Ed separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, and Lomangino and the third-party defendant, Joro Carting, Inc. (hereinafter Joro), which was owned by Lomangino, separately moved for summary judgment dismissing the complaint insofar as asserted against Lomangino. In an order dated September 23, 2015, the Supreme Court, among other things, granted those branches of the motions. The plaintiff appeals.

The plaintiff contends that Lomangino was responsible for the defect at issue because he had a duty to maintain the sidewalk in front of his premises. Administrative Code of the City of New York § 7–210 places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. In support of their motion, Lomangino and Joro submitted, among other things, transcripts of the deposition testimony of the plaintiff and Lomangino. In her deposition, the plaintiff described the defect upon which she tripped as "a raised block of concrete with bolts coming out of it." At his deposition, Lomangino testified that there used to be a functioning lamppost where the plaintiff fell, but it was knocked down during or after a snowstorm in the winter of 1998, and then removed. Lomangino further testified that three days after the pole was removed, employees of Con Ed put in the foundation for a new lamppost. The foundation consisted of cement with "some bolts coming up," but no lamppost was ever installed upon the foundation, and in 2010, an employee of Con Ed disconnected the electrical wire to the foundation.

Lomangino and Joro established, prima facie, that the defect upon which the plaintiff tripped was not part of the sidewalk within the meaning of Administrative Code of the City of New York § 7–210 (see Administrative Code of City of N.Y. § 19–101[d]; Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521–522, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; Gibbons v. City of New York, 139 A.D.3d 1004, 30 N.Y.S.3d 843 ; Rodriguez v. Themelion Realty Corp., 94 A.D.3d 733, 941 N.Y.S.2d 677 ; Vidakovic v. City of New York, 84 A.D.3d 1357, 1358, 924 N.Y.S.2d 537 ; Smirnova v. City of New York, 64 A.D.3d 641, 642, 882 N.Y.S.2d 513 ). Lomangino and Joro also established that Lomangino did not create the allegedly dangerous condition, that the condition was not the result of his negligent repair, and that Lomangino did not make any special use of the subject area (see Gibbons v. City of New York, 139 A.D.3d at 1004–1005, 30 N.Y.S.3d 843 ; Holmes v. Town of Oyster Bay, 82 AD3d 1047, 1048, 919 N.Y.S.2d 207 ; Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 773, 895 N.Y.S.2d 149 ). In opposition, the plaintiff failed to raise a triable issue of fact. Therefore, we agree with the Supreme Court's determination granting that branch of the motion of Lomangino and Joro which was for summary judgment dismissing the complaint insofar as asserted against Lomangino.

The plaintiff also contends that the Supreme Court erred in granting that branch of the City defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them because (1) the prior written notice law is inapplicable, and (2) there are triable issues of fact as to whether the City defendants created the defective condition by knocking down the former lamppost during snowplow operations in the winter of 1998. "Administrative Code of the City of New York § 7–201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for...