Levbarg v. City of New YorkLevbarg v. City of New York
—Ordеr, Supreme Court, New York County (Kibbie Payne, J.), entered on or about October 6, 1999, which granted the defendants’ and third-party defendants’ motions for summary judgment dismissing the complaint and third-party complaints, unanimously modified, on the law, to deny the motions as to the defendant Consolidated Edison Company of New York, Inc. (Con Ed) and the third-party defendants Felix Contracting Corp. and City Wide Asphalt Paving Co., Inc., to reinstate the complaint as against Con Ed and the third-party complaints,
In the early morning hours of November 21, 1995, Morrison Levbarg, an elderly gentleman, now deceased, fell and was injured while crossing the street with his dog, mid-block, in front of 205-210 East 68th Street in Manhattan. Plaintiff, Lеvbarg’s wife and the administratrix of his estate, home at the time, responded to a telephone call that he had been injured and found her husband leaning against a car, being held by two men. Levbarg told plaintiff that he had fallen “in the trench,” which she described as running diagonally across the street and being “a couple of feet wide” and three or fоur inches deep. Levbarg, who had fractured his hip, was taken to the hospital and released ten days later. On Dеcember 14, 1995, after suffering a heart attack, he died, without his testimony being preserved. In a verified notice of clаim prepared and signed by Levbarg before his death, he alleged that he fell in a roadway defect that was “sloped, broken, uneven, cracked and hazardous for pedestrians.” Named as defendants in this personal injury and wrongful death action are the City, which had issued a permit to Con Ed for excavation work on East 68th Street, and Con Ed, which hаd hired Felix Contracting Corp. to perform the excavation and City Wide Asphalt Paving Co., Inc. to repave the roadway after the cutouts had been backfilled. Con Ed has impleaded both Felix and City Wide as third-party defendants.
In the cutout in question, Felix had excavated to a depth of nine inches and then backfilled to a depth of eight inches. No barriers were placed around the site. Plaintiff alleges that this one-inch differential in the roadway created a tripping hazard. For reasons not relevant to this appeal, City Wide did not pave the cutout until sometimе after the accident.
Felix and City Wide separately moved for summary judgment dismissing the complaint, contending that plaintiff cannot show that the roadway “trench” caused Levbarg’s fall. Con Ed cross-moved for the same relief, alleging the same ground. The City separately cross-moved for summary judgment dismissing the complaint based on plaintiffs failure to comply with the prior written notice of defect law (Administrative Code of City of NY § 7-201 [c]), arguing that the issuance of a street оpening permit, without more, did not provide actual prior notice of a particular defect, and on thе additional ground that the City did not create the complained of condition. Plaintiff did not oppose the City’s crоss-motion. In opposing the motions by the other parties, plaintiff attempted to establish
Since a triable issue of fact is presented as to whether the unbarricaded defective condition in the roadway was the proximate cause of Levbarg’s fall and injuries, the IAS court erred in granting summary judgment in favor of Con Ed and the third-party defendants. As the record makes clear, Con Ed and the third-party defendants may all be responsible for eithеr creating the roadway defect or failing to correct it and not barricading it. While the doorman’s statement is сoncededly hearsay, it may appropriately be used to defeat a motion for summary judgment (see, Eitner v 119 W. 71st St. Owners Corp.,
Having disposed of the case on the issue of causation, the IAS court never reached the City’s argument, which was unopposed, that the action against it is barred by the failure to give prior written notice of the defect. As this Court has previously