Wittorf v. City of N.Y., No. 101

CourtNew York Court of Appeals
Writing for the CourtGRAFFEO, J.
Citation23 N.Y.3d 473,15 N.E.3d 333,2014 N.Y. Slip Op. 04037,991 N.Y.S.2d 578
Docket NumberNo. 101
Decision Date05 June 2014
PartiesRhonda WITTORF, Appellant, v. CITY OF NEW YORK, Respondent.

23 N.Y.3d 473
15 N.E.3d 333
991 N.Y.S.2d 578
2014 N.Y. Slip Op. 04037

Rhonda WITTORF, Appellant
CITY OF NEW YORK, Respondent.

No. 101

Court of Appeals of New York.

June 5, 2014.

Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), and Dansker & Aspromonte Associates (Paul Dansker of counsel) for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg and Leonard Koerner of counsel), for respondent.

Robert F. Danzi, New York City, and Michael S. Buskus for New York State Trial Lawyers Association, amicus curiae.



15 N.E.3d 334

We are asked in this case if the City of New York was engaged in a proprietary function at the time of plaintiff's bicycle accident in order to determine if the jury properly evaluated the City's actions under ordinary negligence principles.

On the morning of November 5, 2005, Donald Bowles, a supervisor with the Department of Transportation for the City of New York, and his crew arrived at the east entrance of Central Park's 65th Street transverse to repair a roadway defect. The crew closed the east entrance to the transverse and then proceeded westbound. As they drove through an underpass, Bowles observed the problem they had been sent to correct—a series of deep depressions in the westbound lane. Having located the area in need of repair, Bowles went to the west entrance of the 65th Street transverse to close it to vehicular traffic by placing traffic cones across the roadway.

As Bowles was placing the cones, plaintiff Rhonda Wittorf and Brian Hoberman arrived at the west entrance on bicycles. Hoberman approached Bowles and asked

15 N.E.3d 335

if they could use the roadway and Bowles replied that it was “okay to go through.” As plaintiff and Hoberman rode along the transverse, they entered the underpass where the depressions were located. Because of darkness in the tunnel, plaintiff did not see one of the depressions until she was almost upon it. When she attempted to avoid the hole, she encountered another, fell and was injured.

Plaintiff commenced this personal injury action against defendant City of New York (the City) seeking to recover for her injuries. After trial, a jury determined that the roadway where plaintiffs accident occurred was not in a reasonably safe condition, but that the City could not be held liable for the defect

because it did not receive written notice of the condition at least 15 days prior to the accident, as required by the Pothole Law (Administrative Code of City of N.Y. § 7–201[c][2] ). The jury also found that the City did not cause or create the condition by an affirmative act of negligence. It did, however, conclude that Bowles was negligent in permitting plaintiff and her companion to enter the 65th Street transverse and that such negligence was a substantial factor in causing her injuries. In considering comparative negligence, the jury apportioned fault at 40% to plaintiff and 60% to the City.

The City moved to set aside the verdict, alleging that Bowles was engaged in a governmental function at the time of the accident thereby entitling it to judgment as a matter of law or, alternatively, to set aside the verdict as against the weight of the evidence. Supreme Court granted the motion and dismissed the complaint, agreeing with the City that Bowles was performing a governmental function when he closed the transverse to vehicular traffic (33 Misc.3d 368, 928 N.Y.S.2d 842 [2011] ). It denied the remainder of the City's motion as academic. A divided Appellate Division affirmed, 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 set aside the verdict. The Appellate Division granted plaintiff leave to appeal on a certified question (2013 N.Y. Slip Op. 78059[U] [2013] ).

Plaintiff contends that the courts below erred in concluding that the City could not be held liable for its negligence because Bowles was performing a governmental function when his negligent act occurred. She argues that highway maintenance and repair and the issuance of appropriate warnings for roadway hazards have consistently been deemed proprietary activities that may subject municipalities to liability when such conduct is performed by highway maintenance personnel or planners. The City responds that Bowles was engaged in traffic control—traditionally a governmental function—at the time he failed to warn plaintiff of the roadway condition and, as such, the City is immune from liability.

We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131 (2013). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the

time the claim arose” (id. at 425, 972 N.Y.S.2d 169, 995...

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