Webster v. City of New York
| Decision Date | 01 September 2021 |
| Docket Number | 19 Civ. 5638 (KPF) |
| Parties | GREGORY WEBSTER and LISA WEBSTER, Plaintiffs, v. CITY OF NEW YORK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Gregory Webster and Lisa Webster bring this action against Defendant City of New York (“Defendant” or the “City”), seeking damages for injuries sustained when Gregory Webster tripped and fell while crossing a street in Manhattan. Plaintiffs allege that they have suffered severe personal injuries and loss of consortium as a result of the City's negligence in maintaining the crosswalk in which Gregory Webster fell.[1] The City now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth in the remainder of this Opinion, the Court grants Defendant's motion.
BACKGROUND[2]
On the evening of February 5, 2019, Gregory Webster left his office at 51 Madison Avenue and began walking toward Penn Station, accompanied by his colleague Mitchell Ascione. (Def. 56.1 ¶ 1). The two men approached the northeast corner of West 30th Street and Seventh Avenue, and Webster proceeded to step into the crosswalk that traverses Seventh Avenue (the “crosswalk”), with Ascione walking behind him. (Id. at ¶ 2; Pl. 56.1 ¶ 2). Webster was more than halfway through the crosswalk when his left foot landed on the edge of a square depressed area, which area he later testified was approximately five to six inches deep. (Pl. 56.1 ¶ 3; see also Webster Dep. 21:1-12; Zissu Decl., Ex. B at 11:8-14, 12:6-20 (transcript of Gregory Webster May 6, 2019 Municipal Law § 50-h hearing testimony)).[3] Webster fell forward and onto the street, and his face hit the pavement. (Pl. 56.1 ¶ 3; Def. 56.1 ¶ 3). Ascione assisted Webster to his feet and helped him across the avenue. (Def. 56.1 ¶ 3). Webster's nose was bleeding “profusely” (Webster Dep. 22:16; see also Id. at 22:11, 22:22-23; Ascione Dep. 18:8, 19:22-20:5), and Ascione retrieved napkins from a nearby bar to give to Webster to stanch the bleeding (Def. 56.1 ¶ 3, Ascione Dep. 18:24-19:1, 19:15-17). An ambulance was called, but before it arrived Webster and Ascione hailed a taxicab and directed the driver to NYU Langone Medical Center. (Def. 56.1 ¶ 3). At the hospital, Webster was examined and treated, with sutures placed on the bridge of his nose. (Webster Dep. 35:9-37:12). He was later diagnosed with a nasal fracture (id. at 37:13-16, 38:24-39:17), and continues to experience chronic pain and numbness in his face (id. at 39:22-40:6, 41:6-42:6; see also Ascione Dep. 30:15-20).
During his deposition, Webster was shown photographs of the crosswalk taken within a few days of his accident. The photographs depict a manhole cover in the crosswalk (the “manhole”), surrounded by a seemingly depressed square area. (See Fraser Decl., Ex. 1 (“Webster Deposition Exhibits”); see also Webster Dep. 28:1-31:16, 32:15-33:17). In two of the photographs, Webster circled an area within the depression as reflecting the approximate area where he had stepped immediately prior to his fall. (Webster Deposition Exhibits at 1-2; Webster Dep. 29:10-16, 31:12-16).
The manhole cover involved in Webster's accident is the property of the City of New York. (Pl. 56.1 ¶ 24). On May 3, 2017, employees of the New York City Department of Environmental Protection (the “DEP”) conducted repairs to a water valve located at the manhole. (Def. 56.1 ¶¶ 6-7; see also Zissu Decl., Ex. E (the “May 3, 2017 Water Valve Work Order”)).[4] The repairs involved excavating the water valve's “main line gate” - a twelve-inch valve used to open and close the water main. (Pl. 56.1 ¶ 6; see also May 3, 2017 Water Valve Work Order).
On December 7, 2018, at 6:49 p.m., Kim Salvo, a member of the public, called 311 to report a street defect at Seventh Avenue and West 30th Street. (Def. 56.1 ¶ 8; see also Zissu Decl., Ex. G (the “December 7, 2018 DOT Complaint No. 1”); Salvo Aff. ¶ 2). Salvo has since attested that she called 311 to report “deep depressions in the asphalt surrounding a manhole cover in the Crosswalk.” (Salvo Aff. ¶ 3; see also Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11). She has identified the manhole and abutting depressions that were the subject of her complaint in several photographs produced by Plaintiffs, which photographs appear to be the same as those shown to Webster in his deposition. (Salvo Aff. ¶ 3; see also id., Ex. 1; Webster Deposition Exhibits). As a result of Salvo's call, a maintenance repair order and pothole defect number were generated on a New York City Department of Transportation (“DOT”) “FITS” database. (Pl. 56.1 ¶ 9; Def. 56.1 ¶ 9). A second member of the public called 311 shortly thereafter, at 7:27 p.m., to report a defect at the same location as that identified by Salvo. (Def. 56.1 ¶ 13; see also Zissu Decl., Ex. J (the “December 7, 2018 DOT Complaint No. 2” and with December 7, 2018 DOT Complaint No. 1, the “December 7, 2018 Complaints”)). The latter complaint resulted in the generation of a duplicate repair order. (Pl. 56.1 ¶ 13; see also Codling Dep. 80:2-81:7).
Later that evening, at 8:25 p.m., a maintenance division repair crew was dispatched from a DOT facility in Manhattan. (Def. 56.1 ¶ 14; see also Zissu Decl., Ex. K (December 7, 2018 Manhattan Street Maintenance Pothole Sheet (the “December 7, 2018 Gang Sheet”))). After first stopping at another location to address a reported defect, the crew arrived at the crosswalk at 10:50 p.m. (see December 7, 2018 Gang Sheet 2), and proceeded to locate two “A” sized potholes (less than one foot in diameter), and two “B” sized potholes (one to three feet in diameter) (id.; see also Pl. 56.1 ¶ 14; Codling Dep. 44:17-45:12). The gang sheet maintained by the repair crew reflects that the crew departed the location at 11:10 p.m., and that the defect was marked “XCL” (December 7, 2018 Gang Sheet 2), meaning “the repair was made and the defect was fixed” (Codling Dep. 36:20-22). The crew proceeded to stop at three additional locations to address separately reported defects. (See December 7, 2018 Gang Sheet 2).[5] A comment on the gang sheet reads as follows: (Id.). The comment does not indicate at what time or where the malfunction occurred. (See id.).
On January 29, 2019, a DOT employee made an internal complaint about a pothole defect at the intersection of Seventh Avenue and West 30th Street, which complaint was recorded in the DOT FITS database. (Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20, see also Zissu Decl., Ex. L (the “January 29, 2019 DOT Complaint”)). On the evening of January 31, 2019, a DOT maintenance division repair crew identified a “C” sized pothole (greater than three feet in diameter) at the intersection. (Pl. 56.1 ¶ 21; see also Codling Dep. 44:22-45:12). The pothole was thereafter repaired and designated “XCL, ” or closed. (Def. 56.1 ¶¶ 21-23; Pl. 56.1 ¶¶ 21-23; see also Zissu Decl., Ex. M (January 31, 2019 Manhattan Street Maintenance Pothole Sheet (the “January 31, 2019 Gang Sheet”))).
In connection with Plaintiffs' opposition to the instant motion, their roadway expert, Michael Kravitz, PE, DFE, has submitted an affidavit and expert report regarding his review of the depression in the crosswalk where Plaintiff fell. (See generally Kravitz Aff.; Kravitz Expert Report). In his affidavit, Kravitz states that in his opinion, Defendant “failed to perform a permanent restoration of the roadway excavation on May 3, 2017 in violation of the New York City DOT Highway Rules.” (Kravitz Aff. ¶ 9). Kravitz further attests that in his opinion, Defendant's December 7, 2018 repairs to the crosswalk were “improper, ” and “caused and created an immediately dangerous and defective condition in the form of a four-inch depression in the northern sidewalk at the intersection of 7th Avenue and West 30th Street, New York, New York.” (Id. at ¶ 10).
With respect to the May 3, 2017 excavation, Kravitz writes that the excavated area around the manhole was not “permanently restored, ” which allowed “storm water to penetrate the asphalt and cause failure to the subgrade as well as to deteriorate the asphalt due to freeze/thaw cycles in the winter months.” (Kravitz Expert Report 9). The area thereafter “developed into a deep depression, ” to which DOT was alerted by members of the public on December 7, 2018. (Id.).
While a DOT maintenance crew proceeded to repair the depression with asphalt within a few hours of receiving the complaints Kravitz writes that the temperature that evening was too cold for such repairs. (Kravitz Expert Report 10). That is, the temperature was “below the 40 degree minimum temperature recommended for applying temporary fill greater than three (3) inches deep to the wearing course.” (Id.; see also Pl. 56.1 ¶ 29 ()). Moreover, Kravitz observes that the December 7, 2018 Gang Sheet notes that the hotbox carrying the “temporary fill” asphalt “malfunctioned, ” and dropped to 125 degrees Fahrenheit, and that as a result the cold asphalt had to be “dumped.” (Kravitz Expert Report 10 (discussing December 7, 2018 Gang Sheet)).[6] Kravitz concludes: “Based on the cold atmospheric temperatures, cold asphalt, and malfunctioning Hotbox, the temporary fill … could not adhere to the bottom and sides of...
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