The following papers numbered 1 to 17 were read on this motion by defendant, THE CITY OF NEW YORK and THE NYC DEPARTMENT OF TRANSPORTATION, for an order pursuant to CPLR 3212(b) granting said defendant summary judgment and dismissing the plaintiff's complaint; and the cross-motion of the plaintiff for an order pursuant to CPLR 3126 striking the answer of the defendant for willfully failing to comply with plaintiff's demand for an examination before trial:

Papers Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 8

Cross-Motion Affirmation in Opposition-Affidavits......9 - 12

Reply affirmation.....................................13 - 17 _____

In this negligence action, the plaintiff, ROWSHAN ARA BEGAM, Administratrix of the Estate of MOHAMMED M. ROHAM, seeks to recover damages for personal injuries that Mr. Roham sustained as [*2]a result of an accident in which he fell off his bicycle when the front wheel of the bicycle allegedly got stuck in a pothole. The accident took place near the intersection of 168th Street and Jamaica Avenue in Queens County, New York, on May 9, 2007.

The plaintiff, age 48 at the time of the accident, filed a Notice of Claim with the City of New York on July 31, 2007. The notice of claim states that the accident occurred on May 9, 2007 at approximately 12:00 noon on 168th Street near the intersection of Jamaica Avenue in front of the premises known as 91-21 168th Street, Jamaica, Queens. The notice states that "the plaintiff was riding his bicycle and was caused to fall as the bicycle wheel struck a large hole in the roadway causing him to fall." Plaintiff states that he sustained serious injuries, including a fractured ankle as a result of the fall.

On September 20, 2007, plaintiff Mohammed Rohman appeared for a 50-H hearing. He stated that he was employed as a security guard for Summit Security Service. On the date of the accident he was going from his home to his work place approximately one mile away. He was riding on the right side of 168th Street, 25 feet from Jamaica Avenue and four to five feet away from the curb. As he was riding, his front wheel struck and became encumbered in a deep hole and he was thrown off the bicycle causing a trimalleolar fracture to his right ankle for which he was in a cast for two months. He also injured his head, right elbow, right shoulder, right knee, lower back and neck.

The plaintiff commenced this action by service a summons and complaint dated July 29, 2008. Defendant served a verified answer dated August 21, 2008 and a verified bill of particulars dated August 20, 2009. On April 14, 2010 plaintiff died. Pursuant to the order of this Court dated December 7, 2011, Rowshan Ara Begam, decedent's wife, the Administratrix of the Estate of Mohammed M. Rohman was substituted as plaintiff in this matter and the caption amended accordingly. On May 18, 2012, Plaintiff filed a note of issue. In an affirmation annexed the note of issue plaintiff states that the note of issue was filed at the direction of the court although all discovery, including depositions of all parties, had not been completed. Thereafter, the parties agreed by so ordered stipulation dated August 30, 2012 to complete discovery including depositions while the matter remained on the calendar. It was agreed that depositions would take place before November 16, 2012 and it was also agreed that motions for summary judgment would be stayed until the completion of outstanding discovery. On June 13, 2013, as substantial discovery was outstanding, the note of issue was vacated in the Trial Scheduling Part by Justice Weinstein. [*3]

Defendant, City of New York, now moves for an order pursuant to CPLR 3212(b), granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint on the ground that there was no prior written notice of the alleged defect in the subject roadway given to the City of New York as required under Administrative Code of the City of New York § 7-201.Pursuant to Administrative Code of the City of New York§ 7-201(c)(2), a plaintiff must plead and prove that the City had prior written notice of a roadway defect, or dangerous or obstructed condition before it can be held liable for its alleged negligence related thereto" (Minew v City of New York, 106 AD3d 1060 [2d Dept. 2013]). Defendant's counsel cites the Court of Appeals holding in Yarborough v City of New York, 10 NY3d 726 [2008], which states that "where the City establishes that it lacked prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality." Also see Marshall v City of New York, 52 AD3d 586 [2d Dept. 2008][where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies].

In order to demonstrate, prima facie, that it did not have prior written notice of the defect, defendant submits an affidavit from Stacey Williams, a Supervisor of Litigation Services at the New York City Department of Transportation which conducted a search for any prior written notice of the alleged condition on 168th Street as described by the plaintiff at his 50-H hearing and in his Notice of Claim. In her affidavit dated January 15, 2013, Ms. Williams states that she personally conducted a search in the pertinent electronic databases and identified and requested a search for corresponding paper records of permits, applications for permits, corrective action requests, notices of violation, inspections, maintenance and repair orders, contracts, in house resurfacing records, gangsheets for roadway defects, gangsheets for milling and resurfacing records, complaints, and Big Apple Maps for the intersection of 168th Street and Jamaica Avenue in Queens New York for the period of May 9, 2005 through May 9, 2007 and annexes copies of her search records and a copy of the Big Apple Map for the pertinent location.

Counsel states that the results of Ms. Williams' search yielded no prior written notice of the alleged condition cited by [*4]plaintiff. Counsel also states that there are no indications of potholes or cracks in the road on the Big Apple Map in the area described by the plaintiff as being where the accident occurred. Defendant, therefore, requests that summary judgment be granted in favor of the defendant dismissing the plaintiff's complaint on the ground that there was no prior written notice provided to the City as required by the Administrative Code.

Defendant also requests that the complaint against the New York City Department of Transportation be dismissed as the NYC DOT is not an entity capable of being sued. Counsel contends that pursuant to the New York City Charter § 396 agencies of the City are not legal entities for the purpose of suit and should not be named as a party in the caption (citing Funt v Human Resources Admin. of the City of New York, 68 AD3d 490 [1st Dept. 2009]).

In opposition, plaintiff submits that defendant's motion for summary judgment is premature in that the examinations before trial of all parties have not yet been held. Counsel asserts that the parties stipulated on August 30, 2012 that depositions would take place before November 16, 2012 and motions for summary judgment would be stayed until the completion of outstanding discovery. Plaintiff asserts that rather than produce a witness for deposition, the defendant moved for summary judgment despite agreeing to stay all motions until the completion of discovery. In addition, counsel asserts that the affidavit of Stacy Williams submitted in support of the motion is insufficient to prove that there was no prior written notice as she states only that she conducted a search of pertinent computer records related to the subject location and attached computer printouts but she never states definitively that the City did not receive prior written notice of the hole where the plaintiff fell off of his bicycle. Counsel contends, therefore, that triable issues of facts exist with regard to the data bases that were searched and whether the defendant received prior written notice. Plaintiff does not oppose the branch of the motion to dismiss the action against the Department of Transportation

Plaintiff also cross-moves for an order striking the defendant's answer for failure to comply with the plaintiff's demands for an examination before trial of the defendant's witness.

In reply, defendant's counsel states that the evidence is undisputed that there was no prior written notice to the City of New York. Defendant submits a second affidavit from Stacey Williams, this time containing a statement that a review of her search indicate that the were no complaints or prior written [*5]notice of any alleged defect in the roadway in front of the premises located at 91-21 168th Street, Jamaica, New York in the two years prior to the date of plaintiff's alleged accident on May 9, 2007. Counsel asserts that defendant did not produce a witness as the there was an order of priority under which plaintiff was to be conducted first and plaintiff failed to produce his client for deposition. Counsel therefore contends that the plaintiff waived his right to conduct a deposition of the defendant.

Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and defendant's reply thereto, this court finds that the defendant's motion for summary judgment is denied as premature. CPLR 3212(f) provides, in relevant part, that a court may deny a motion for summary judgment "[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]; see James v Aircraft Serv. Intl. Group, 84 AD3d 1026 [2d Dept. 2011]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2d Dept. 2006]). "This is especially so when the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'" (James v Aircraft Serv. Intl. Group, supra, quoting Baron v Incorporated Vil. of Freeport, 143 AD2d 792 [2d Dept. 1988]; see Dietrich v Grandsire, 83 AD3d 994 [2d Dept. 2011]; Evangelista v Kambanis, 74 AD3d 1278 [2d Dept. 2010]).

Here, the parties stipulated that motions for summary judgment would be stayed until the completion of discovery including depositions of the parties. The defendant failed to comply with the stay on motions and failed to produce his client for a deposition despite stipulating to same on August 30, 2012. Although the defendant's witness, Stacy Williams, submitted affidavits and documents which she states demonstrates that the defendant did not have prior written notice, the plaintiff is entitled to conduct discovery and to depose Ms. Williams prior to an award of summary judgment in this matter (see Gruenfeld v City of New Rochelle, 72 AD3d 1025 [2d Dept. 2010]). The plaintiff has demonstrated that discovery may lead to relevant evidence, and the information relevant to the existence of both prior written notice and whether any work was conducted at the subject location is within the knowledge control of the City and for which the plaintiff has no personal knowledge (see Gasis v City of New York, 35 AD3d 533 [2nd Dept. 2006]; Rupp v City of Port Jervis, 10 AD3d 391 [2d Dept. 2004]). Therefore, plaintiff is entitled to further discovery which could provide evidence of prior written notice (see Jones v American Commerce Ins. Co., 92 [*6]AD3d 844 [2d Dept. 2012]; Diaz v City of New York, 2010 NY Slip Op 31063(U)[Sup Ct, New York County 2010]).

Plaintiff's motion to strike the defendant's answer is denied. However, defendant shall be precluded from offering an testimony at trial unless the defendant produces a witness for deposition on or before September 10, 2013. Plaintiff shall also be deposed on a date to be agreed upon by the parties on or before September 10, 2013.

Accordingly, based upon the foregoing it is hereby,

ORDERED, that the motion by defendant for summary judgment is denied without prejudice to renew upon the completion of discovery (see Dietrich v Grandsire, 83 AD3d at 994 [2d Dept. 2011]; Gardner v Cason, Inc., 82 AD3d at 931 [2d Dept. 2011]; cf. Gruenfeld v City of New Rochelle, 72 AD3d 1025[2d Dept. 2010]).

Dated: July 30, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.