Wittorf v. City of N.Y.

CourtNew York Supreme Court Appellate Division
Writing for the CourtTOM
Citation961 N.Y.S.2d 432,2013 N.Y. Slip Op. 02014,104 A.D.3d 584
PartiesRhonda WITTORF, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
Decision Date26 March 2013

104 A.D.3d 584
961 N.Y.S.2d 432
2013 N.Y. Slip Op. 02014

Rhonda WITTORF, Plaintiff–Appellant,
v.
The CITY OF NEW YORK, Defendant–Respondent.

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

March 26, 2013.


[961 N.Y.S.2d 433]


Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.


TOM, J.P., ANDRIAS, SAXE, DeGRASSE, MANZANET–DANIELS, JJ.

[104 A.D.3d 584]Order, Supreme Court, New York County (Paul G. Feinman, J.), entered August 17, 2011, which, inter alia, granted defendant's motion to set aside the jury verdict on the ground that plaintiff failed to establish a prima facie case, affirmed, on the law, without costs.

[104 A.D.3d 585]On November 5, 2005, plaintiff and her boyfriend rode their bicycles to the entrance of the Central Park transverse road at West 65th Street, where a City Department of Transportation (DOT) crew supervisor was in the process of setting up warning cones to close off both lanes of the road to vehicular traffic before starting to repair a “special condition” in the transverse. The supervisor testified that a “special condition” was a defect “bigger than a pothole” but “less involved” than road resurfacing.

Plaintiff's boyfriend asked the supervisor if they could ride through, and he told them “go ahead.” Although plaintiff's boyfriend crossed the transverse safely, plaintiff

[961 N.Y.S.2d 434]

was injured when she struck a large pothole.

The jury found that the roadway where the accident occurred was not in a reasonably safe condition. However, the City could not be held liable on that basis because the jury found that the City had not received timely written notice of the particular defect and did not cause or create the condition by an affirmative act of negligence. The sole basis for the City's liability was the jury's findings that the supervisor was negligent in allowing plaintiff to enter the transverse and that his negligence was a substantial factor (60%) in causing plaintiff's injuries.

The trial court orally denied plaintiff's motion to set aside the verdict on prior written notice, cause and create, comparative negligence (40%) and additur. Subsequently, the trial court granted defendant's written motion pursuant to CPLR 4404 to set aside the verdict on the ground that the City was immune from liability because the supervisor was engaged in the discretionary governmental function of traffic control, not the proprietary function of street repair, when he allowed plaintiff to proceed.

“ ‘Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general’ ” ( Valdez v. City of New York, 18 N.Y.3d 69, 76–77, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011], quoting McLean v. City of New York, 12 N.Y.3d 194, 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ). Accordingly, “even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority” ( id. at 76, 936 N.Y.S.2d 587, 960 N.E.2d 356;see also McLean at 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167). In contrast, when performing a proprietary function, the governmental entity is generally subject “to the same duty of care as private individuals and institutions engaging in the same activity” ( Schrempf v. State of New York, 66 N.Y.2d 289, 294, 496 N.Y.S.2d 973, 487 N.E.2d 883 [1985] ).

[104 A.D.3d 586]“A governmental function generally is defined as one ‘undertaken for the protection and safety of the public pursuant to the general police powers' ” ( Murchinson v. State of New York, 97 A.D.3d 1014, 1016, 949 N.Y.S.2d 789 [3rd Dept. 2012], quoting Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 968, 665 N.Y.S.2d 613, 688 N.E.2d 487 [1997] ). A proprietary function is one in which “governmental activities essentially substitute for or supplement traditionally private enterprises” ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] [internal quotation marks omitted] ).

“ ‘A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions ... [and] any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category’ ” (Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011],cert. denied––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 28 [2012], quoting Miller v. State of New York, 62 N.Y.2d 506, 511–512, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] ). In performing this analysis, a court must examine “the specific act or omission out of which the injury is claimed to have arisen

[961 N.Y.S.2d 435]

and the capacity in which that act or failure to act occurred ..., not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” ( Miller at 513, 478 N.Y.S.2d 829, 467 N.E.2d 493 [internal quotation marks omitted]; see also Matter of World Trade Ctr. Bombing Litig. at 447, 933...

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9 practice notes
  • Wittorf v. City of N.Y., No. 101
    • United States
    • New York Court of Appeals
    • June 5, 2014
    ...concluding that the underlying negligent omission occurred during the performance of a governmental rather than a proprietary function (104 A.D.3d 584, 961 N.Y.S.2d 432 [1st Dept.2013] ). The dissenter would have reversed Supreme Court's dismissal of the complaint and denied the motion to s......
  • Stora v. City of N.Y., Index No. 117071/2008
    • United States
    • United States State Supreme Court (New York)
    • November 22, 2013
    ...v. State of New York, 20 N.Y.3d 175, 179 (2012) ; Sebastian v. State of New York, 93 N.Y.2d 790, 793 (1999); Wittorf v. City of New York, 104 A.D.3d 584, 585 (1st Dep't 2013). See Bonner v. City of New York, 73 N.Y.2d 930, 932 (1989). If the governmental entity, here a municipality, is acti......
  • Wittorf v. City of N.Y.,
    • United States
    • New York Court of Appeals
    • June 5, 2014
    ...concluding that the underlying negligent omission occurred during the performance of a governmental rather than a proprietary function (104 A.D.3d 584, 961 N.Y.S.2d 432 [1st Dept.2013] ). The dissenter would have reversed Supreme Court's dismissal of the complaint and denied the motion to s......
  • Holiday Hospitality Franchising LLC v. CPTS Hotel Lessee LLC, Index No. 653096/2016
    • United States
    • United States State Supreme Court (New York)
    • May 1, 2018
    ...CPTS relies on cases involving management agreements, and to this extent they are distinguishable as well. E.g., Eden Roc, LLLP, 104 A.D.3d at 584 (finding personal services contract where the agreement "place[d] full discretion with [the manager] to manage virtually every aspect of th......
  • Request a trial to view additional results
9 cases
  • Wittorf v. City of N.Y., No. 101
    • United States
    • New York Court of Appeals
    • June 5, 2014
    ...concluding that the underlying negligent omission occurred during the performance of a governmental rather than a proprietary function (104 A.D.3d 584, 961 N.Y.S.2d 432 [1st Dept.2013] ). The dissenter would have reversed Supreme Court's dismissal of the complaint and denied the motion to s......
  • Stora v. City of N.Y., Index No. 117071/2008
    • United States
    • United States State Supreme Court (New York)
    • November 22, 2013
    ...v. State of New York, 20 N.Y.3d 175, 179 (2012) ; Sebastian v. State of New York, 93 N.Y.2d 790, 793 (1999); Wittorf v. City of New York, 104 A.D.3d 584, 585 (1st Dep't 2013). See Bonner v. City of New York, 73 N.Y.2d 930, 932 (1989). If the governmental entity, here a municipality, is acti......
  • Wittorf v. City of N.Y.,
    • United States
    • New York Court of Appeals
    • June 5, 2014
    ...concluding that the underlying negligent omission occurred during the performance of a governmental rather than a proprietary function (104 A.D.3d 584, 961 N.Y.S.2d 432 [1st Dept.2013] ). The dissenter would have reversed Supreme Court's dismissal of the complaint and denied the motion to s......
  • Holiday Hospitality Franchising LLC v. CPTS Hotel Lessee LLC, Index No. 653096/2016
    • United States
    • United States State Supreme Court (New York)
    • May 1, 2018
    ...CPTS relies on cases involving management agreements, and to this extent they are distinguishable as well. E.g., Eden Roc, LLLP, 104 A.D.3d at 584 (finding personal services contract where the agreement "place[d] full discretion with [the manager] to manage virtually every aspect of th......
  • Request a trial to view additional results

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