Upon the foregoing papers, the motion (No. 2968) for summary judgment dismissing the causes of action asserted against defendant/third-party defendant Mezzacappa Brothers, Inc., (hereinafter "Mezzacappa") is granted, as are the cross motions (Nos. 3209 and 3335) for like relief by defendant/third-party plaintiff Brooklyn Union Gas Company (hereinafter "Brooklyn Union") and second third-party defendant The City of New York (hereinafter "The City").^[FN1]

Plaintiff Donna Ranello (hereinafter plaintiff) has brought this action to recover monetary damages for injuries she allegedly suffered on August 15, 1996, in a one vehicle accident that occurred on Forest Avenue, at the intersection of Trantor Place, in Staten Island, New York. Plaintiff alleges that at approximately 4:50 p.m. she was proceeding westbound on Forest Avenue when she heard a "big bang" underneath her car and was caused to be "jolt[ed]" to a stop. Plaintiff exited her vehicle but did not notice any damage. Upon arriving home, she notified the police and returned to the scene with an unidentified officer. According to plaintiff, the officer indicated that the vehicle had struck a metal plate in the road. It is uncontroverted that defendant Mezzacappa was engaged in construction work on Forest Avenue at the time in question. As a result, this action was commenced against Mezzacappa on the ground that it had negligently installed the utility cover in the road that caused plaintiff's injuries. Ben Ranello has pleaded a derivative cause of action.

In the present application, defendants Mezzacappa, Brooklyn Union and The City are separately moving for summary judgment dismissing the respective claims against them.

Summary judgement is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Herrin v Airborne Freight Corp., 301 AD2d 500, 505-01 [2d Dept 2003]). In deciding whether summary judgment is warranted, the court's main function is to identify issues, not to determine them (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The party seeking summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). On such a motion, " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, a party

opposing the motion bears the burden of producing "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, [*2]562 [1980]).

It is well settled that a prima facie claim of negligence requires the claimant to establish "the existence of a duty, the breach of that duty, that the breach was a proximate cause of the accident, and damages" (Green v State of New York, 222 AD2d 553, 554 [2d Dept 1995]). In a case "based wholly upon circumstantial evidence" a plaintiff is required to demonstrate "sufficient facts from which the negligence of the defendant and the causation of the accident by that negligence can be reasonably inferred" (Babino v City of New York, 234 AD2d 241, 241-42 [2d Dept 1996]). "The plaintiffs are not required to exclude every possible cause of the accident other than the defendant's negligence, but the other possible causes must be rendered sufficiently remote so as to enable the trier of fact to reach a conclusion based upon the logical inferences to be drawn from the evidence, and not upon speculation" (id.).

Motions Nos. 2968 and 3209

At bar, both Mezzacappa and Brooklyn Union allege that plaintiff has failed to present sufficient evidence to establish that any act of negligence on the part of either was a proximate cause of her injuries. In support, they submit plaintiff's deposition testimony indicating that she did not see anything strike her car, nor did she witness any defect or metal plate in the roadway upon exiting her vehicle. In addition, plaintiff's further testimony to the effect that an unidentified officer subsequently surmised that a metal plate had struck her vehicle must be rejected as hearsay. As a result, the moving defendants have each met their initial burden of establishing a prima facie entitlement to judgment as a matter of law.

In opposition, plaintiff has failed to proffer sufficient evidence to establish the existence of a triable issue of fact regarding the cause of her accident. Mere speculation is insufficient to defeat a motion for summary judgment (Abdullah v City of New York, 203 AD2d 397, 398 [2d Dept 1994][judgment reversed and complaint dismissed where testimony on causation constituted pure speculation]). Here, as in Abdullah, a trial jury would be forced to speculate as to the cause of the accident, as there is no admissible evidence of causation. Hence, summary judgment and dismissal of the complaint is warranted (see Babino v City of New York, 234 AD2d at 242).

Motion No. 3335

While the City's cross motion for summary judgment and dismissal of the second third-party complaint is effectively mooted by the dismissal of the complaint against its purported indemnitee, Brooklyn Union, the absence of written notice pursuant to § 7-201(c)(2) of the Administrative Code of the City of New York constitutes a further bar to liability. As applicable, the Code provides that [*3]

[n]o civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe. (emphasis added).

It is well settled that "[a]ctual or constructive notice of a defect does not satisfy [the written notice] requirement" (Reich v Meltzer, 21 AD3d 543, 544 [2d Dept 2005], lv denied 7 NY3d 701). However, an exception is recognized "where the locality created the defect or hazard through an affirmative act of negligence [or] where a special use confers a special benefit upon the locality" (Oboler v City of New York, ___ NY3d __, 2007 NY Slip Op 2441 quoting Amabile v City of Buffalo, 93 NY2d 471, 474 [1999][internal quotation marks omitted]). In addition, as held in Oboler, even "the affirmative negligence exception to the notice requirement [is] . . . limited to work by the City that immediately results in the existence of a dangerous condition" (quoting Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005][internal quotation marks omitted]).

Here, it is uncontested that the City did not receive prior written notice of any defect. Therefore, in order to prevail, Brooklyn Union would have to show that the City was affirmatively negligent or was making a special use of the street (Amabile v City of Buffalo, 93 NY2d at 474). In this case, there is no evidence of either. The City established through competent evidence that

only one permit had been issued (to Mezzacappa), and that the permit expired on August 4, 1995, more than one year prior to plaintiff's accident. In addition, the City produced two Big Apple Maps showing no "roadway defects" in the vicinity of plaintiff's accident.

In opposition, Brooklyn Union has failed to raise a triable issue of fact. While it is alleged that the City, through Mezzacappa, created a defect, there is no evidence that any such defect was a cause of plaintiff's injuries, nor is there any evidence of immediacy. Neither is there evidence of any special use on the part of the City. Finally, it is well established that the issuance of a work permit does not constitute prior written notice to the City (see Khemraj v City of New York, 37 AD3d 419).

Accordingly, it is, [*4]

ORDERED, that the respective motions and cross motion for summary judgment are granted and the complaints are dismissed; and it is further;

ORDERED, that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Dated: April 30, 2007/s/____________________________________

Hon. Thomas P. Aliotta, J.S.C.