| Di Sanza v City of New York |
| 2008 NY Slip Op 00556 [47 AD3d 535] |
| January 29, 2008 |
| Appellate Division, First Department |
| Filip Di Sanza, Appellant, v City of New York et al.,Defendants and Consolidated Edison Company of New York,Respondent. |
—[*1] Richard W. Babinecz, New York City (Helman R. Brook of counsel), forrespondent.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 22, 2006, which,to the extent appealed from, as limited by the briefs, granted the motion of defendantConsolidated Edison Company of New York (Con Ed) for summary judgment dismissing thecomplaint as against it, affirmed, without costs.
Con Ed established its prima facie entitlement to summary judgment by demonstrating that itneither created nor had actual or constructive notice of the defect in its metal grating upon whichplaintiff allegedly tripped (see Resto v798 Realty, LLC, 28 AD3d 388 [2006]). Con Ed satisfied its burden by submitting theuncontested testimony of an employee that he inspected the grate less than five months before theaccident and found no defect.
None of the submissions of plaintiff in opposition created an issue of fact. The photograph ofthe grate, taken after the accident, does not indicate a condition that must have been of longduration (compare Jacobsen vKrumholz, 41 AD3d 128 [2007] [photographs and plaintiff's testimony supported aninference that the defect was not suddenly created]).
The five work permits for the vicinity of the grate, for work that may or may not have beenperformed, all predated the October 29, 2002 inspection in which the Con Ed employeeascertained that there were no defects, which inspection, as noted, predated the accident by lessthan five months.
Plaintiff's expert did not dispute the Con Ed employee's testimony; rather, the expert statedthat the defect could have been caused by constant opening and closing of the grate and that thegrate should have been inspected every three months. Thus, the expert tacitly accepted theassertion of Con Ed's employee that there was no defect at the time of the inspection. Theexpert's speculation as to the cause of the defect and the adequacy of Con Ed's inspectionschedule is insufficient to raise a triable issue of fact, because there is no evidence that Con Edreturned to work at the site after October 29, 2002 or that anyone ever reported or noticed acondition before the accident (seeButler-Francis v New York City Hous. Auth., 38 AD3d 433 [2007]).Concur—Friedman, Marlow and Buckley, JJ.
Lippman, P.J., and Mazzarelli, J., dissent in a memorandum by Mazzarelli, J., as follows: Iwould reverse the order appealed and reinstate the complaint. Plaintiff was injured on March 19,2003 when he allegedly tripped and fell over a raised metal sidewalk grating. The grating covereda vault containing a transformer owned and maintained by Con Edison. Con Edison had a duty tomaintain the subject grating in a reasonably safe condition based on its special use of thesidewalk and as the owner of the grating (see Posner v New York City Tr. Auth., 27 AD3d 542 [2006];Ausderan v City of New York, 219 AD2d 562 [1995]; Romano v County of Monroe,149 AD2d 952 [1989]; Rules of City of NY Dept of Transp [34 RCNY] § 2-07 [b]).
To be entitled to summary judgment, Con Edison was required to demonstrate that as amatter of law it did not create the defect which allegedly caused the plaintiff to trip and that itlacked actual or constructive notice of the defect (see Ron v New York City Hous. Auth.,262 AD2d 76 [1999]). Con Edison has failed to carry its prima facie burden (see id.).
The deposition testimony of its operating supervisor that the condition was created by a largetruck was admittedly "supposition." Con Edison has also failed to demonstrate that it lackedconstructive notice of the defect. The majority would accept Con Edison's argument that it lackedconstructive notice because an inspection of the grating approximately five months prior to theaccident revealed no defects in the grating. However, Con Edison's burden regarding constructivenotice was to show that the condition did not exist for sufficient duration that, in the exercise ofreasonable care, it should have corrected it (see Giambrone v New York Yankees, 181AD2d 547, 548 [1992]). Con Edison's inspection report, by itself, is insufficient to meet thatburden, without some other evidence that five months was not a long enough period of time forthe defect to have come into existence and to have been discovered in the exercise of due care. Inote that Con Edison's internal rules requiring yearly inspections of the grating appear to conflictwith the Rules of the Department of Transportation, which require owners of sidewalk gratings to"monitor[ ]" the condition of gratings to ensure that, inter alia, they are flush with thesurrounding surface (34 RCNY 2-07 [b]). The use of the word "monitoring", although undefinedin the Rules, suggests that an inspection frequency of once a year or even once every five monthsis insufficient. The need for more frequent inspections of sidewalk gratings is further suggestedby the testimony of Con Edison's operating supervisor that heavy vehicles "very often" jump thesidewalk and drive over the gratings.
Moreover, plaintiff created an issue of fact by presenting photographs of the defect, takenwithin one week of the accident, from which a jury could infer that the condition was notsuddenly created (see Jacobsen vKrumholz, 41 AD3d 128, 129 [2007]; Denyssenko v Plaza [*2]Realty Servs.,Inc., 8 AD3d 207, 208 [2004]). I discern no basis for the majority's conclusion that thecondition of the grating depicted in plaintiff's photographs was not of long duration.