| Wittorf v City of New York |
| 2013 NY Slip Op 02014 [104 AD3d 584] |
| March 26, 2013 |
| Appellate Division, First Department |
| Rhonda Wittorf, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Diana Lawless of counsel),for respondent.
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 theground that plaintiff failed to establish a prima facie case, affirmed, on the law, withoutcosts.
On November 5, 2005, plaintiff and her boyfriend rode their bicycles to the entranceof the Central Park transverse road at West 65th Street, where a City Department ofTransportation (DOT) crew supervisor was in the process of setting up warning cones toclose off both lanes of the road to vehicular traffic before starting to repair a "specialcondition" in the transverse. The supervisor testified that a "special condition" was adefect "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 wasinjured when she struck a large pothole.
The jury found that the roadway where the accident occurred was not in a reasonablysafe condition. However, the City could not be held liable on that basis because the juryfound that the City had not received timely written notice of the particular defect and didnot cause or create the condition by an affirmative act of negligence. The sole basis forthe City's liability was the jury's findings that the supervisor was negligent in allowingplaintiff to enter the transverse and that his negligence was a substantial factor (60%) incausing plaintiff's injuries.
The trial court orally denied plaintiff's motion to set aside the verdict on prior writtennotice, cause and create, comparative negligence (40%) and additur. Subsequently, thetrial court granted defendant's written motion pursuant to CPLR 4404 to set aside theverdict on the ground that the City was immune from liability because the supervisor wasengaged in the discretionary governmental function of traffic control, not the proprietaryfunction of street repair, when he allowed plaintiff to proceed.
" '[G]overnment action, if discretionary, may not be a basis for liability, whileministerial 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 NY3d 69, 76-77 [2011],quoting McLean [*2]v City of New York, 12 NY3d 194, 203 [2009]).Accordingly, "even if a plaintiff establishes all elements of a negligence claim, a state ormunicipal defendant engaging in a governmental function can avoid liability if it timelyraises the defense and proves that the alleged negligent act or omission involved theexercise of discretionary authority" (id. at 76; see also McLean at 202). Incontrast, when performing a proprietary function, the governmental entity is generallysubject "to the same duty of care as private individuals and institutions engaging in thesame activity" (Schrempf v State of New York, 66 NY2d 289, 294 [1985]).
"A governmental function generally is defined as one 'undertaken for the protectionand safety of the public pursuant to the general police powers' " (Murchinson v State of NewYork, 97 AD3d 1014, 1016 [3d Dept 2012], quoting Balsam v Delma Eng'gCorp., 90 NY2d 966, 968 [1997]). A proprietary function is one in which"governmental activities essentially substitute for or supplement traditionally privateenterprises" (Sebastian v State of New York, 93 NY2d 790, 793 [1999] [internalquotation marks omitted]).
" 'A governmental entity's conduct may fall along a continuum of responsibilityto individuals and society deriving from its governmental and proprietary functions. . . [and] any issue relating to the safety or security of an individualclaimant must be carefully scrutinized to determine the point along the continuum thatthe State's alleged negligent action falls into, either a proprietary or governmentalcategory' " (Matter of WorldTrade Ctr. Bombing Litig., 17 NY3d 428, 446 [2011], cert denied 568US —, 133 S Ct 133 [2012], quoting Miller v State of New York, 62NY2d 506, 511-512 [1984]). In performing this analysis, a court must examine "thespecific act or omission out of which the injury is claimed to have arisen and the capacityin which that act or failure to act occurred . . . , not whether the agencyinvolved is engaged generally in proprietary activity or is in control of the location inwhich the injury occurred" (Miller at 513 [internal quotation marks omitted];see also Matter of World Trade Ctr. Bombing Litig. at 447).
The dissent believes that the City must be held liable for the supervisor's failure towarn her of the dangerous condition in the transverse, or for his negligently waving herinto a place of danger, because those acts were integrally related to the pothole repairundertaken by the City in a proprietary capacity. However, at the time of plaintiff'saccident, the repair work had not begun, and the supervisor was engaged in trafficcontrol, which is "a classic example of a governmental function undertaken for theprotection and safety of the public pursuant to the general police powers" (see Balsamv Delma Eng'g Corp., 90 NY2d at 968; see also Santoro v City of New York, 17 AD3d 563[2005]; Devivo v Adeyemo,70 AD3d 587 [1st Dept 2010]). Thus, the City is entitled to governmental functionimmunity because the specific act or omission that caused plaintiff's injuries was thesupervisor's discretionary decision to allow plaintiff to proceed since his crew had notcompleted its preparations for the road work, and not the City's proprietary function inmaintaining the roadway (see Clinger v New York City Tr. Auth., 85 NY2d 957,959 [1995]; Kadymir v NewYork City Tr. Auth., 55 AD3d 549, 552 [2d Dept 2008]). When plaintiffencountered the supervisor, he was not at the entrance of the transverse to repairpotholes; the repair was to take place later, under the second overpass, which, accordingto plaintiff's boyfriend, was a "good distance" away. The fact that the supervisor was aDOT employee and not a police officer is of no consequence. Controlling traffic is agovernmental function.
Plaintiff also argues that the jury's finding that the City had not received writtennotice of [*3]the roadway condition was against theweight of the credible evidence. Plaintiff asserts that there was written notice of thedefect as far back as July 13, 2005, nearly four months before her accident.
Administrative Code of City of NY § 7-201 (c) (2) requires plaintiffs to showthat the City received prior written notice of the alleged defect to maintain an action. Thenotice must designate the specific defect alleged in the complaint (see Belmonte vMetropolitan Life Ins. Co., 304 AD2d 471, 474 [1st Dept 2003]), and the awarenessof one defect in the area is inadequate notice of another defect that caused the accident(see Roldan v City of NewYork, 36 AD3d 484 [1st Dept 2007]).
Weighing the documentary evidence related to the purported written notice, whichaddressed defects in the eastbound lane, in conjunction with the testimony of plaintiffand the supervisor with respect to the location of the pothole that caused the accident, thejury could rationally conclude that the City did not have the requisite prior written noticeof the specific roadway defect (see Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]). The supervisor testified at his deposition that he remembered that the subjectpothole was in the westbound, not the eastbound, lane of the transverse, and that thememory was "frozen" in his mind. Plaintiff testified that she was closer to the yellow linethan her boyfriend while traveling in the eastbound lane and had just moved to the leftwhen she encountered the pothole. The jury was free to resolve the conflicts in theevidence and the issues of credibility in defendant's favor (see McDermott v Coffee Beanery,Ltd., 9 AD3d 195, 206, 207 [1st Dept 2004]).
We have considered plaintiff's other arguments and find them unavailing.Concur—Tom, J.P., Andrias, Saxe and DeGrasse, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: On the date of theaccident, plaintiff and a companion rode their bicycles to the entrance of the Central Parktransverse road at West 65th Street. When they arrived at the transverse, a CityDepartment of Transportation (DOT) employee, who had been sent to the area to repairdamaged sections of roadway in the transverse, was in the process of blocking theentrance to vehicular traffic. Plaintiff's companion asked the DOT employee if they couldcross the park using the transverse, and the employee allowed them to proceed.
Although her companion crossed the transverse unharmed, plaintiff struck a largepothole, sustaining severe facial injuries, including fractures of her upper jaw bone, theloss of four front teeth, and avulsion injuries of her lips, chin, nose and face, requiring, todate, more than 21 surgeries to repair. Plaintiff alleges that the injuries she sustainedwere caused by the negligence of the DOT worker who permitted her to cross the park,knowing that there was a defect in the transverse, without providing adequate warning ofthe hazard. After the jury found that the DOT worker's conduct was negligent andproximately caused plaintiff's injuries, the court granted defendant's motion pursuant toCPLR 4404 to set aside the verdict on the ground that the City was immune from liabilitysince the DOT worker's conduct involved a discretionary act in connection with agovernmental function. The majority now affirms.
It is well settled that the City may be held liable for negligence in the exercise of its"proprietary duty" to keep the roads and highways under its control in a reasonably safecondition (see Balsam v Delma Eng'g Corp., 90 NY2d 966 [1997]; Friedmanv State of New York, 67 [*4]NY2d 271, 283 [1986]),and that the duty to maintain the roads includes an obligation to adequately warn users of"existing hazards" in the road (see Hicks v State of New York, 4 NY2d 1, 7[1958]; Alexander v Eldred, 63 NY2d 460, 463-464 [1984]; Levine v New York State ThruwayAuth., 52 AD3d 975, 976-977 [3d Dept 2008]).
"[I]t is the specific act or omission out of which the injury is claimed to have arisenand the capacity in which that act or failure to act occurred which governs liability, notwhether the agency involved is engaged generally in proprietary activity or is in controlof the location in which the injury occurred" (Miller v State of New York, 62NY2d 506, 513 [1984] [internal quotation marks omitted]). In this case, the DOTemployee's claimed negligent act or omission was permitting plaintiff to use the roadwaywithout providing any warning of a known dangerous condition. That conduct occurredwhile he was engaged in physical maintenance of the road, a proprietary act (seeLevine at 976-977; Grant v Ore, 284 AD2d 302, 303 [2d Dept 2001];compare Balsam, 90 NY2d at 968 ["No claim is made here that the police werecharged with the responsibility to physically maintain the property (an icy road) whereplaintiff's accident occurred"]).
In my opinion, the majority takes too narrow a view of governmental functions. Themajority focuses on the DOT employee's actions in waving plaintiff and her companionthrough, rather than on the roadway activity the crew had been dispatched to perform,which clearly falls along the continuum of a proprietary function. The decision to allowplaintiff to proceed along the transverse cannot be viewed separately from the City'sproprietary function in maintaining the roadway. Here, the DOT employee was in theprocess of barricading an entrance to the traverse, an activity integral to his overallassignment of repairing hazardous roadway conditions. The fact that the specific functionof barricading a street as part of a maintenance project might be one performed by apolice officer, in my view, is not determinative of the governmental or proprietary natureof the activity. The DOT employee was not engaged in a traffic control exercise butrather was performing an act integral to his roadway maintenance duties. Accordingly, Iwould reverse the trial court's order and reinstate the jury verdict. [Prior CaseHistory: 33 Misc 3d 368.]