[*1]
Miller v New York City Hous. Auth.
2010 NY Slip Op 51825(U) [29 Misc 3d 1214(A)]
Decided on September 21, 2010
Supreme Court, Kings County
Balter, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 21, 2010
Supreme Court, Kings County


Michael Miller and Eunice Miller, Plaintiffs,

against

New York City Housing Authority, Defendant.




13412/08



Plaintiff: Jennifer K. Fink, Esq.

Gersowitz, Libo & Korek, P.C.

11 Broadway - 12th Floor

New York, NY 10006

Defendant: Linda M. Brown, Esq.

Herzfeld & Rubin, P.C.

125 Broad Street

New York, NY 10004

Bruce M. Balter, J.



Upon the foregoing papers, defendant New York City Housing Authority (NYCHA) moves for an order, (a) pursuant to CPLR 3211 (a) (7), granting dismissal of plaintiff Michael Miller's (Miller)[FN1] claims premised upon alleged violations of certain statutory provisions for failure to state a cause of action, and (b) pursuant to CPLR 2221, granting reargument of the court's March 22, 2010 Order (the Prior Order), insofar as it declined to grant NYCHA summary judgment dismissing plaintiffs' Complaint in its entirety, and upon reargument, granting NYCHA summary judgment dismissing the Complaint pursuant to CPLR 3212.

FACTS AND PROCEDURAL HISTORY

This action involves an accident which took place at around 10:58 p.m. on January 2, 2008 on the pedestrian walkway approximately ten feet from the rear doorway of the building and premises (the subject premises) located at 953 Dekalb Avenue in Brooklyn, New York. The [*2]subject premises is owned and operated by NYCHA. Miller, a New York City police officer, was patrolling the area at and around the subject premises when an accumulation of ice on the pedestrian walkway allegedly caused him to slip and fall. Plaintiff alleges that the ice condition was the result of "ponding" water which accumulated on the walkway and froze due to structural defects on the walkway and adjoining curb.

At the time of the accident, Miller and two fellow officers were engaged in pursuit of a suspicious individual who ran towards the rear doorway of the building on the subject premises. While chasing him, Miller slipped. Although he testified that he could not see the ice on the pavement before he fell, afterwards he realized that he was lying on a "sheet of ice." Fellow officers Raymond Gonzalez and William Waldron confirmed that plaintiff had slipped on a patch of ice. Miller testified that he was wearing sneakers at the time of the accident. He also testified that the temperature was below 32 degrees that day and there was no snow, but he could not recall the weather conditions of the previous day.

After the accident, Miller was transported to Long Island College Hospital via ambulance, where he was diagnosed with a left ankle injury. Plaintiff underwent surgery on his left ankle on January 9, 2008 and did not return to work until May 7, 2008, under light duty. Plaintiff returned to full active duty on June 11, 2008.

Plaintiff served a Notice of Claim upon NYCHA on February 6, 2008, within 90 days of the alleged accident, and subsequently commenced this action on May 2, 2008.[FN2] Plaintiff alleges one cause of action sounding in negligence and another cause of action pursuant to General Municipal Law � 205 (e). Miller's claim under General Municipal Law � 205 (e) is predicated on violations of the Administrative Code of City of New York, including �� 27-580 (Scope and General Requirements for subchapter on structural work), 27-597 (Questionable Construction of structures), P110.2 (Disposal of Storm Water)[FN3], 26-228 (General Safety Requirements),[FN4] 27-127 (Building Maintenance Requirements), 27-128 (Owner Responsibility), 27-292.1 (Scope for subarticle on facilities for people with physical disabilities), 27-292.2 (Standards for same), 27-292.4 (General Requirements for same), and 27-292.5 (Accessibility). Miller's statutory hearing pursuant to General Municipal Law� 50-h took place on April 23, 2008. [*3]

In its Prior Order, this court denied plaintiff's summary judgment motion for liability under General Municipal Law § 205 (e) based on alleged violations of Administrative Code §§ 26-228, 27-292.1, 27-292.2, 27-292.4, 27-292.5, 27-580, 27-597, 28-301.1,[FN5] and P110.2 (Appendix, Reference Standard RD 16). It also denied defendant's cross motion for leave to move for summary judgment based on the lack of good cause for its delay. Upon searching the record, however, the court nevertheless granted summary judgment to defendant for liability under General Municipal Law § 205 (e) based only on the alleged violations of Admin. Code §§ 26-228, 27-292.1, 27-292.2, 27-292.4, 27-292.5, 27-580, 27-597, and P110.2 (Appendix, Reference Standard RD 16), which the court found were inapplicable to the instant facts. According to the Prior Order, Plaintiff's claim for liability under General Municipal Law § 205 (e) survived summary judgment only as based on an alleged violation of Admin. Code § 28-301.1. The remaining claims in plaintiff's Complaint were based on alleged violations of Admin. Code §§ 7-210, 16-123 (a) and (b), 27-381, 27-101 through 27-126, and 27-129; New York City Health Code §§ 135.17 and 153.19; General Obligations Law § 11-106; Real Property Law § 234; and American National Standards Institute (ANSI) 117.1-1986. They were unaddressed in the Prior Order because plaintiff did not rely on them as bases for summary judgment in his motion.

THE PARTIES' CONTENTIONSNYCHA argues that the claims based on the remaining statutory violations, as set forth in plaintiff's Notice of Claim, Complaint, and Bill of Particulars, are inapplicable to the instant facts and should be dismissed for failure to state a cause of action. NYCHA further maintains that the court, in its Prior Order, misapprehended the date of plaintiff's accident as July 2, 2008 (on page fifteen of the Prior Order), and erroneously concluded that the 1968 version of the Building Code, rather than the 1938 Building Code, as advocated by defendant, was applicable to the subject building. Defendant additionally urges the court to reconsider its determination that NYCHA failed to provide a reasonable excuse for its untimely cross motion for summary judgment. Finally, NYCHA avers that even though the court stated in the Prior Order that plaintiff sought summary judgment regarding the General Municipal Law § 205 (e) claim, only, plaintiff also sought summary judgment as to his claims for common-law negligence. Thus, defendant asserts, the court may reach the common-law negligence claim upon a search of the record.


In opposition, plaintiff argues that the part of defendant's motion seeking dismissal should not be considered because defendant presents no newly discovered facts, but only the same grounds asserted in its previous untimely motion. Plaintiff further avers that when considering whether to grant defendant summary judgment on any of the claims, the court properly declined to search the record beyond the scope of plaintiff's motion for summary judgment. Plaintiff also maintains that defendant is not entitled to reargue the prior motion for summary judgment, nor have the court consider its untimely cross motion for summary judgment. Last, plaintiff explains the viability of its negligence claim, given defendant's alleged failure to establish the absence of notice of the alleged dangerous condition on the sidewalk. He asserts that, contrary to [*4]defendant's assertion that plaintiff lacked evidence to support a violation of Admin. Code §§ 27-127 and 27-128, the affidavit of Peter Pomeranz (Pomeranz), plaintiff's expert engineer, detailed the defective condition of the sidewalk and attributed the cause of such condition to improper construction.

In its Reply, defendant maintains that the alleged statutory violations as yet unaddressed by the court in the Prior Order are inapplicable and should be dismissed. It reiterates that reargument should be granted based on the facts misapprehended by the court in its Prior Order, and, upon reargument, advocates summary judgment dismissing plaintiff's negligence claim and claims premised on alleged violations of the 1938 Building Code.

DISCUSSION


(a)

In order to set forth a valid claim for reargument, defendants must specifically identify their claim as such and base that claim on matters of fact or law allegedly overlooked or misapprehended by the court, as set forth in CPLR 2221 (d).[FN6] While the determination to grant leave to reargue a motion lies within the sound discretion of the court (see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874, 874 [2010]), a motion for leave to reargue cannot be used as a second opportunity to argue previously decided issues or previously unpresented arguments (see generally McGill v Goldman, 261 AD2d 593 [1999]; see also William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1992]).

The court, in addressing NYCHA's concerns, hereby grants its motion for leave to reargue. Upon reargument, however, the court adheres to its original determination that NYCHA failed to provide a reasonable excuse for its untimely cross motion for summary judgment. NYCHA did not demonstrate good cause with its showing of defendant's difficulty retaining an expert and scheduling an inspection, the fact that defense counsel was on vacation for several weeks at the time the Note of Issue was filed, nor the fact that its law firm was substituted as defense counsel following the filing of the Note of Issue (see Brill v City of New York, 2 NY3d 648 [2004]). The court stresses that defendant made no effort to inform the court of its need for an extension, and did not move to vacate or strike the Note of Issue (see generally Buckner v City of New York, 9 Misc 3d 510, 514 [2005]). NYCHA has not presented any basis for the court to alter its initial determination denying it leave to cross-move for summary judgment. Accordingly, at this juncture the court declines to address the remaining causes of action and predicate violations for which defendant sought summary judgment in its untimely cross motion.[FN7] [*5]

Defendant also brings to the court's attention certain "grandfathering" provisions in the Building Code. Given the date of the accident, January 2, 2008, the court determines that the subject premises is governed by the earlier 1938 Building Code rather than the 1968 Building Code. The building was constructed sometime between 1961 and 1964, and, despite the contrary statements made by Pomeranz in his affidavit, was thus grandfathered under the Building Code as it existed at that time; the 1968 Building Code does not apply because the building pre-dated its effective date (see Admin. Code §§ 27-105; 27-111 [FN8]), and the exceptions to the grandfathering provisions are inapplicable [FN9] (see Issacs v West 34th Apts. Corp., 36 AD3d 414, 416 [2007]; Pavon v 19th Street Assoc., LLC, 17 Misc 3d 1125[A], 2007 NY Slip Op 52144[U] [2007]).

Although the court will not entertain NYCHA's untimely cross motion seeking summary judgment dismissal of various alleged statutory violations asserted by plaintiff as bases for liability under General Municipal Law � 205 (e), upon reargument the court may still search the record and render a decision in favor of defendant under the 1938 Building Code (Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280 [2006]; Costello v Hapco Realty, Inc., 305 AD2d 445 [2003]). This search, however, is limited to those causes of action or issues which are the subject of the timely motion that is already before the court (see Filannino, 34 AD3d at 281; Costello, 305 AD2d at 446). Although defendant seeks, upon reargument, summary judgment dismissal of the claims predicated on sections 27-101 through 27-126 and 27-129 of the newer Building Code, plaintiff's summary judgment motion does not request relief based on violations of those regulations. The outstanding issues involving alleged statutory violations of Admin. Code �� 27-101 through 27-126 and 27-129 are thus not "nearly identical" to those in plaintiff's summary judgment motion (see Grande v Peteroy, 39 AD3d 590, 592 [2007]). Accordingly, this branch of NYCHA's motion must be denied.

Defendant also asserts that the court overlooked plaintiff's request for summary judgment of the negligence claim in the original motion. Although plaintiff now avers that he only sought summary judgment as to the General Municipal Law � 205 (e) claim in his original motion, the court notes that he in fact advocated summary judgment based on negligence as well.

Liability for negligence may be imposed when a duty of care is coupled with creating or giving actual or constructive notice of the allegedly dangerous condition that caused the accident (see Olivieri v GM Realty Co., LLC, 37 AD3d 569, 569 [2007]; John v Tishman Constr. Corp. of NY, 32 AD3d 458 [2006]; Warren v. Wilmorite, Inc., 211 AD2d 904 [1995]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [defendant] to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986] [internal citations omitted]; see also Murphy v 136 N. Blvd. Assoc., 304 AD2d 540, 540-541 [2003]). Thus, to prevail on a motion for summary judgment, a defendant must show that it did not create the icy condition and had neither actual nor constructive notice of it (Olivieri, 37 AD3d at 569). [*6]

Here, the court finds that NYCHA failed to demonstrate, prima facie, that it neither created the alleged dangerous condition, nor had actual or constructive notice of such condition as a matter of law (see Andrini v Navarra, 49 AD3d 575, 576 [2008]; Keese v Imperial Gardens Assocs., LLC, 36 AD3d 666, 668 [2007]). Defendant argues that it had no notice, constructive or otherwise, of the alleged ice patch in that area because there had never been any complaints made about it, plaintiff had never seen the ice patch prior to the accident, and the daily reports of the caretakers did not reveal any ice on the rear walkway. When viewing the evidence in the light most favorable to plaintiff, however, we cannot say that a jury would not be able to reach a finding that defendant was negligent. Given the routine inspections of the rear walkway performed by defendant's employees, the court finds that triable issues of fact exist regarding whether defendant possessed constructive notice of the defective sidewalk which allowed the water to "pond" and/or constructive notice of the ice condition itself. Moreover, defendant has presented no conclusive evidence that it did not create or construct the subject sidewalk that is alleged to be defective and on which water is alleged to have "ponded." To succeed on summary judgment, it is not enough for defendant to merely point out gaps in plaintiff's proof; it must affirmatively demonstrate the merit of its claim or defense (Peskin v New York City Tr. Auth., 304 AD2d 634, 634 [2003]; Dalton v Educ. Testing Serv., 294 AD2d 462, 463 [2002]; Berberi v Fifth Ave. Dev. Co., LLC, 20 Misc 3d 1106[A], 2008 NY Slip Op 51244[U], *5-6 [2008]). Thus, upon reargument and in searching the record, the court concludes that triable issues preclude resolution of the negligence claim at this stage, and summary judgment for defendant on the common-law negligence claim must be denied.[FN10]

With regard to sections 27-127 and 27-128 of the Administrative Code, the court acknowledges that these regulations are in fact the relevant statutes to be analyzed under the Building Code and that they are substantially similar to Admin. Code � 28-301.1, the regulation with which they were ultimately replaced.[FN11] Admin. Code § 27-127 is titled "Maintenance requirements" and mandates that "[a]ll buildings and all parts thereof shall be maintained in a safe condition . . . ." Admin. Code § 27-128 is titled "Owner responsibility" and mandates that "[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities." As with the common-law negligence claim, defendant's motion for summary judgment dismissing the General Municipal Law § 205 (e) claim as predicated on alleged violations of Admin. Code §§ 27-127 and 27-128 should similarly be denied. The evidence submitted by plaintiff is sufficient to infer that defendant knew or should have known about either the presence of an icy hazard or a poorly installed concrete walkway which would result in icy hazards, while defendant's proof raises triable issues regarding constructive notice. Thus, it cannot be said, as a matter of law, that plaintiff did not demonstrate a "practical or reasonable connection between the injury sustained and the violation of a statute or regulation" (Lusenskas v Axelrod, 183 AD2d 244, 248 [1992]; Terranova v New York City Tr. Auth., 49 AD3d 10, 17 [2009]). Accordingly, upon reargument [*7]and in searching the record, the court concludes that defendant is not entitled to summary judgment on the General Municipal Law § 205 (e) claim as predicated on violations of Admin. Code §§ 27-127 and 27-128.

(b)

The court now turns to the part of defendant's motion seeking dismissal of the remaining causes of action and predicate violations for which defendant sought summary judgment in its untimely cross motion. Plaintiff argues that defendant's motion is prohibited by the rule against successive summary judgment motions absent "a showing of newly discovered evidence or other sufficient cause" (Davidson Metals Corp. v Marlo Dev. Corp., 262 AD2d 599; see also Staib v. City of New York, 289 AD2d 560, 561 [2001]; Sutter v Wakefern Food Corp., 69 AD3d 844, 845 [2010]). However, the motion at issue is for dismissal under CPLR 3211 (a) (7), and is not barred by the rule against successive summary judgment motions. CPLR 3211 (e) states that a motion to dismiss for failure to state a cause of action can be made at any time or in a later pleading. Thus, this part of defendant's motion seeking dismissal of the claims under CPLR 3211 (a) (7) is not barred from consideration.

Defendant argues that it is entitled to dismissal of plaintiff's claims based on Real Property Law � 234 (Tenants' right to recover attorneys' fees in actions or summary proceedings arising out of leases of residential property); Admin. Code �� 7-210, 16-123, 27-381, 27-101 through 27-126, and 27-129; New York City Health Code �� 135.17 and 153.19; and ANSI 117.1-1986.

Plaintiff does not oppose defendant's arguments on the grounds of inapplicability except to argue that ANSI 117.1-1986 was a mandatory standard adopted in the 1968 Building Code, and to insist that sections 27-101 through 27-126 and 27-129 of the Administrative Code are applicable, as stated in Pomeranz's affidavit. He adds that section 27-114 of the Administrative Code (relating to the alteration of existing buildings) applies to the instant facts because, as Pomeranz stated, the settling of the sidewalk next to the curb was the result of deterioration and was therefore an alteration under the statute. The Court deems abandoned the remaining alleged claims and predicates, given plaintiff's lack of opposition regarding their applicability to the action, or lack thereof (see Genovese v Gambino, 309 AD2d 832, 833 [2003] [where plaintiff did not oppose that branch of defendant's summary judgment motion dismissing the wrongful termination cause of action, his claim that he was wrongfully terminated was deemed abandoned]).

Although it is true that ANSI 117.1-1986, relating to exterior accessible routes for people with physical disabilities, may have been adopted in section 27-292.4 of the Building Code, the court observes that ANSI standards may not serve as predicates for General Municipal Law � 205 (e) liability, as they are not "statutes, ordinances or regulations" (Rosabella v Metropolitan Tr. Auth., 23 AD3d 365, 366 [2005]). Moreover, even if ASI 117.1-1986 did apply, plaintiff is not a member of the class protected under the law, and the court has already held in its Prior Order that Admin. Code � 27-292.4 is inapplicable to plaintiff.

Additionally, the court agrees with defendants that Admin. Code �� 27-101 through 27-110, as well as sections 27-124, 27-125, and 27-126, are definitional, do not set forth specific safety requirements, and cannot constitute the basis for a General Municipal Law � 205 (e) claim. With regard to sections 27-111 through 27-113 (changes in occupancy or use of an existing building), 27-114 (sprinkler systems), 27-119 (how alteration costs are determined), 27-121 (alterations to [*8]one or two family residence buildings), 27-122 (conversions from seasonal to year round use), 27-123 (sprinkler systems for high hazard occupancies), 27-123.1 (accessibility for handicapped individuals), and 27-129 (exterior walls), these regulations relate to building features or issues that have no application here and similarly cannot support a General Municipal Law � 205 (e) claim. Sections 27-115, 27-116 and 27-117 (alterations to buildings and the cost thereof) and 27-120 (conversions to multiple dwellings or buildings) are also inapplicable because plaintiff has made no showing that alterations were ever performed to the walkway at issue nor that any alleged alterations cost a certain percent of the building's value. Thus, these regulations should be dismissed as bases for General Municipal Law � 205 (e) liability.

CONCLUSION


Accordingly, defendant's motion seeking leave to reargue is granted, and upon reargument, the court adheres to the determinations made in its Prior Order insofar as denying plaintiff's summary judgment motion for General Municipal Law � 205 (e) liability based on alleged violations of Admin. Code �� 26-228, 27-292.1, 27-292.2, 27-292.4, 27-292.5, 27-580, 27-597, 27-127, 27-128, and P110.2, as well as for liability under common-law negligence. The court also denies defendant's cross motion for leave to move for summary judgment again. Additionally, upon reargument and in searching the record, the court adheres to its determination granting defendant summary judgment for liability under General Municipal Law � 205 (e) based on alleged violations of Admin. Code �� 26-228, 27-292.1, 27-292.2, 27-292.4, 27-292.5, 27-580, 27-597, and P110.2. Finally, the court grants the branch of defendant's instant motion seeking dismissal of the following predicate

violations for failure to state a cause of action: Real Property Law � 234; Admin. Code �� 7-210, 16-123, 27-381, 27-101 through 27-126, and 27-129; New York City Health Code �� 135.17 and 153.19; and ANSI 117.1-1986.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes


Footnote 1: Plaintiff's wife, Eunice Miller, also asserts a derivative cause of action for loss of consortium. The court will hereinafter refer to plaintiffs in the singular for ease of reference.

Footnote 2: Plaintiff also served Amended Notices of Claim on March 5, 2008 and August 15, 2008, alleging additional claims and statutory violations as predicates for the General Municipal Law � 205 (e) cause of action, and updating facts in the original Notice.

Footnote 3: This provision is part of subsection P110 (storm drainage piping) of Reference Standard 16 (plumbing and gas piping) in the Appendix to Title 27 of the New York City Administrative Code.

Footnote 4: Admin. Code § 26-228, titled "General safety requirements," provides that "[p]ersons engaged in building operations shall provide reasonable and adequate protection for the safety of all persons and property affected thereby . . . ." Although this regulation was not yet repealed at the time of plaintiff's alleged accident, the court recognizes that it is nevertheless inapplicable to the instant facts, as it relates to construction site safety, and the rear walkway at issue is not part of a construction site. Thus, the court's dismissal of this regulation as a predicate for plaintiff's General Municipal Law � 205 (e) claim is still correct.

Footnote 5: The court noted that Admin. Code § 28-301.1 replaced sections 27-127 and 27-128 as per Local Law 33/2007 § 7, effective July 1, 2008.

Footnote 6: CPLR 2221 [d] [2] states that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion"

Footnote 7: To wit, these causes of action and predicate violations include: Admin. Code §§ 7-210, 16-123 (a) and (b), 27-381, 27-101 through 27-129 (except sections 27-127 and 27-128); New York City Health Code §§ 135.17 and 153.19; General Obligations Law § 11-106; Real Property Law § 234; and ANSI 117.1-1986.

Footnote 8: For example, Section 27-111 provides that lawful occupancy and use of any building on the Building Code's effective date may be continued.

Footnote 9: Exceptions include changes in occupancy/use under Admin. Code � 27-112 and alterations to an existing building under Admin. Code �� 27-114 through 27-117.

Footnote 10: The court similarly denies summary judgment for plaintiff on the negligence claim, to be resolved at trial.

Footnote 11: As defendant indicates, as of the date of plaintiff's alleged accident, January 2, 2008, these regulations had not yet been replaced by Admin. Code � 28-301.1.