Rudenstine v. City of New York

• Docket Number: Index No. 151178/2019,MOTION SEQ. No. 003
• Decision Date: 23 August 2023
• Parties: DAVID RUDENSTINE, as executor of the estate of ZEBORAH SCHACHTEL, Plaintiff, v. THE CITY OF NEW YORK and RESTANI CONSTRUCTION CORP. Defendants.
• Court: New York Supreme Court

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2023 NY Slip Op 32933(U)

DAVID RUDENSTINE, as executor of the estate of ZEBORAH SCHACHTEL, Plaintiff,
v.
THE CITY OF NEW YORK and RESTANI CONSTRUCTION CORP. Defendants.

Index No. 151178/2019, MOTION SEQ. No. 003

Supreme Court, New York County

August 23, 2023

Unpublished Opinion

MOTION DATE 05/05/2023

PRESENT: HON. JOHN J. KELLEY, Justice

DECISION + ORDER ON MOTION

JOHN J. KELL£Y, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 104, 106, 115, 116, 117, 118, 119, 120, 121, 129, 130, 131, 133, 135, 137, 138, 140, 141 were read on this motion to/for JUDGMENT -SUMMARY.

In this action to recover damages for personal injuries and wrongful death, arising from a trip-and-fall accident, the defendant City of New York moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and on its cross claims for contribution and contractual indemnification against the defendant Restani Construction Corp. (Restani). The plaintiff opposes the motion and Restani opposes the motion in part. The motion is granted to the extent that the City is awarded summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and on its cross claim against Restani for contractual indemnification, limited to recovery of its defense costs. The motion is otherwise denied.

On May 16, 2018, the plaintiff's decedent was traversing the crosswalk in a public roadway at the intersection of West 26th Street and Seventh Avenue in Manhattan, walking from the southeast corner to the northeast corner thereof, when she tripped and fell to the pavement at a point in the crosswalk located approximately 17 feet south of the northeast corner of West 26th Street and Seventh Avenue. She injured herself as a consequence and,

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according to the plaintiff, was caused to sustain occlusive pulmonary thromboemboli, with left leg deep venous thrombosis, that led to her death. In his complaint, the plaintiff alleged that the location of the roadway was "dangerously broken, cracked, raised, uneven, and depressed," and that these defects were caused by roadwork that Restani had undertaken in the days leading up to the accident. At least one non-party witness, Larry G. King, testified at his deposition that he witnessed the decedent's accident, explaining that the decedent was using a walker when she fell. He further asserted that the roadway on which she fell appeared to have been recently repaired, although he did not personally witness any roadwork being performed when he had walked by the location one week earlier. King testified that the surface of the roadway at the point where the decedent fell was "misshaped" and in "bad shape" and that he found it to be a "little dangerous" and "unleveled." A photograph authenticated by King as being a fair and accurate representation of the accident site at the time of the accident, depicted the declivity on which the decedent fell to be a rectangle approximately three feet long, one foot wide, and several inches deep. The photograph also depicted a roadway on which milling had been completed, some pavement patching had been performed around nearby manholes, but no repaving had commenced.

Michael Calderone, Restani's general superintendent, testified at his deposition that Restani had a contract with the City's Department of Transportation (DOT) to mill the existing pavement at and around the accident location in preparation for repaving by another contractor, and that the last daily report of which he was aware was dated May 9, 2018, or one week prior to the accident. Although he did not testify that May 9, 2018 was the last date on which any contractor performed repaving work at the location, he suggested that May 9, 2018 may have been the last date that Restani performed milling work thereat. Calderone further testified that Restani had placed barrels near the subject location when it was undertaking work, and had also provided flaggers and crossing guards to direct pedestrians around any dangerous conditions during that period of time as well. In addition, he asserted that several inspectors

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from both the City and other contractors had inspected the work site every day that work was being performed.

In support of its motion, the City submitted the pleadings, the plaintiff's bill of particulars, the transcript of the plaintiff's General Municipal Law § 50-h hearing, the deposition transcripts of the parties and nonparties King and Federico Mancini, the contract between the City DOT and Restani, specifications for the subject milling and repaving project, and paving records, which demonstrated that paving at the accident location was ongoing as late as June 7, 2018 through June 9, 2018. The City also submitted the affidavit of Tatiana Pavlova, a paralegal for the City DOT tasked with conducting searches for written notices of roadway and crosswalk defects and dangerous conditions. She asserted therein that her search revealed that no one, including the Big Apple Pothole and Sidewalk Protection Committee, had provided the DOT with written notice of a defective or dangerous roadway or crosswalk at the location of the decedent's accident at any time prior to the subject accident. In addition, the City submitted the reservation of rights letter provided to it by Restani's liability insurer, Starr Indemnity &Liability Company (Starr), which quoted provisions from the relevant policy referable to whether the City was an additional insured under the policy and the circumstances under which the City would be indemnified by Starr on Restani's behalf. In opposition, the plaintiff and Restani relied on the same documentation, and each submitted a memorandum supporting their positions.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether

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summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J. C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his or her burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).

"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401,403404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiffs case. He or she must affirmatively demonstrate the merit of his or her defense (see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).

Liability for failing to maintain premises in a safe condition must be based on occupancy, ownership, control, special use, statutory...