with a statute designed to protect a certain class of persons
(i.e., from injury at the construction site), should not be the
basis for a finding of liability for the unforeseeable death of
a person outside that designated class. Since Scotty neither
occupied, owned, controlled nor made special use of the
premises at the time of the accident, it further contends that
it should not be held responsible after it transferred title to
another, namely Buchanan. Additionally, Scotty asserts that
even if the placement or erection of the construction fence was
negligent, the intervening acts of the defendant Capitelli were
of such a nature as to be a superseding and proximate cause of
the plaintiff's injuries and resultant death.
As discussed above with respect to Buchanan, compliance with
the City Code does not bar a finding of negligence. Thus,
Scotty's contention that it complied with the Code and
therefore should be exonerated from liability as a matter of
law is rejected for the reasons set forth above.
Control is the test which generally measures the
responsibility in tort of the owner of real property for
defects relating to such property (see Govel v. Lio, 120 A.D.2d 840,
841, 502 N.Y.S.2d 290, 291 [3d Dep't 1986], citing Roark
v. Hunting, 24 N.Y.2d 470, 248 N.E.2d 896, 301 N.Y.S.2d 59
). Although as a general rule liability remains with the
person who created the danger or who was responsible for its
continuance (see Kilmer v. White, 254 N.Y. 64, 71,
171 N.E. 908, 910  [Pound, J.]), "[t]he duty to maintain the
property falls on the successor-in-title in possession" (Govel,
120 A.D.2d at p. 291, 502 N.Y.S.2d at p. 291). In Govel, the
Appellate Division reversed Special Term's denial of summary
judgment on the issue of control as between the vendor and
vendee, where the "condition of the driveway was a perfectly
obvious one" (Govel, supra [emphasis supplied]).
In the instant case, although title and control were
surrendered by Scotty two weeks prior to the accident, it
nonetheless may be found liable if the trier of facts
determines that sufficient time had not yet elapsed from the
time title passed until the time of the accident, which would
have allowed the vendee, in this case Buchanan, sufficient
time to discover and remedy or repair any alleged defects
(see Farragher, 26 A.D.2d at p. 496, 275 N.Y.S.2d at p. 544).
Thus, as with Buchanan, the Court finds that there are genuine
issues of material fact to be tried including whether or not
Buchanan had sufficient time to discover any allegedly
defective condition of the fence and to take the necessary
steps to remedy it.
As to Scotty's argument that the allegedly defective fence
was not a proximate cause of the accident and the acts of the
defendant Capitelli were the superseding cause, as discussed
above with respect to Buchanan, the Court finds that there are
questions of fact for the jury (see, e.g., Derdiarian, 51
N Y2d at p. 315, 414 N.E.2d at p. 670, 434 N.Y.S.2d at p. 169;
Cherny, 150 A.D.2d at p. 943, 541 N.Y.S.2d at p. 284).
Therefore, Scotty's motion for summary judgment dismissing
the complaint against it is also denied.
d) As to the City.
As mentioned at the outset, the plaintiff alleges basically
two theories of negligence against the City: (1) the City's
failure to protect it's streets and highways and persons
lawfully using them by allowing the fence to remain as an
obstructed condition for motorists; and, (2) failure to post
warning signs or lights at the intersection (see Amended
Complaint ¶ 29). The City's present motion for summary judgment
is based solely on the grounds that it had not received prior
written notice under the "pothole law" (see City Code § 7-201).
Although both theories sound in negligence, they are each
subject to a distinct analysis for purposes of determining
whether the prior written notice requirement of the City Code
has been satisfied.
i. Obstructed Condition.
The City contends that the plaintiff cannot maintain this
action because there was
no prior written notice to the Commissioner of Transportation
of the alleged dangerous condition in accordance with section
7-201(c) of the City Code. It is not disputed that prior
written notice was never received by the City as to the
alleged obstructive condition of the construction fence. The
City argues that such notice is a "condition precedent" to the
maintenance of a personal injury action, and that the
plaintiff has failed to come forward with any evidence of
prior written notice to even raise a triable issue that would
defeat summary judgment.
Section 7-201 of the City Code provides in relevant part:
"c. 2. No 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 incumbrances
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
City Code § 7-201(c).
It is well established that an action may not be maintained
against the City to recover damages for personal injuries
occurring as the result of a dangerous condition on any
sidewalk or highway unless prior written notice has been
provided (see Laing v. City of New York, 71 N.Y.2d 912, 914,
523 N.E.2d 816, 817, 528 N.Y.S.2d 530, 531 ). Since
"prior notice" statutes are in derogation of the common law,
they are to be strictly construed (see Monteleone v. Village of
Floral Park, 74 N.Y.2d 917, 918, 549 N.E.2d 459, 460, 550
N YS.2d 257, 258 ).
At the outset, there is no evidence of affirmative acts on
the part of the City. No one contends that the City "caused or
created" the wooden fence.
The plaintiff's allegations that the City was negligent in
allowing the fence to remain as an "obstructed condition"
encroaching upon the sidewalk, places that cause of action
squarely within the plain language of section 7-201 of the
City Code for purposes of prior written notice. It is
precisely for this type of situation that the pothole law was
enacted. Therefore, since it is undisputed that the City never
received prior written notice of the obstructed condition, the
plaintiff is precluded as a matter of law from maintaining
this action on that theory of negligence. Accordingly, the
City's motion for summary judgment is granted as to that
portion of plaintiff's cause of action that alleges the City's
negligence for an "obstructed condition" on the sidewalk.
As to the plaintiff's reliance on Aetna Life & Casualty v.
City of New York, 116 Misc.2d 838, 840, 456 N.Y.S.2d 647, 649
(N.Y.C.Civ.Ct. Queens County 1982), for the proposition that
the City's constructive or actual notice of a "construction
area" dispenses with the requirements of the pothole law, this
Court finds the apparent rationale in the Aetna decision to be
unpersuasive. The court in Aetna relied on Martin v. City of
Cohoes, 37 N.Y.2d 162, 166, 332 N.E.2d 867, 870, 371 N.Y.S.2d
687, 691 (1975), which specifically held that "where a statute
applicable to a case requires prior written notice, proof of
affirmative tortious conduct on the part of a municipality will
suffice" (emphasis supplied). Since there is no evidence of any
affirmative tortious conduct on the part of the City, and the
Court does not believe that constructive
notice of a defect in the "construction area" of a third party
would obviate compliance with the pothole law, the Court
declines to apply Aetna to the circumstances of this case.
ii. Failure to Erect or Maintain A Sign or Signal.
In addition to claiming that the fence constituted an
obstructed condition, the plaintiff alleges that the City was
negligent in failing to post a traffic signal or sign at the
intersection, warning of the obstruction (see Amended Complaint
¶ 29). With respect to the prior notice requirement of the City
Code, this theory advanced by the plaintiff differs
significantly from alleging that the fence constituted an
obstruction (see supra).
Under New York law, it is well settled that the failure to
erect or maintain traffic signs is not within the coverage of
the prior notice statutes (see Alexander v. Eldred, 63 N.Y.2d
460, 467, 472 N.E.2d 996, 999, 483 N.Y.S.2d 168, 171 ;
see also Doremus v. Incorporated City of Lynbrook, 18 N.Y.2d
362, 365, 222 N.E.2d 376, 377, 275 N.Y.S.2d 505, 507 ).
In this Court's view, the holding of Alexander clearly applies
here: namely, prior written notice to the City of the failure
to post or maintain a sign warning of the alleged obstructed
condition is not required under the City Code. Therefore, as to
plaintiff's theory of negligence against the City based upon
the failure to post a sign or erect or maintain a traffic
signal, the City's motion is denied, since the Court finds that
no written notice is required under settled principles of New
York law. Of course, the Court does not rule on the merits of
such a claim, since that issue was not presented under the
posture of the City's motion.
e) As to Sanctions.
The plaintiff requests the Court to impose Rule 11 sanctions
upon the defendant Buchanan for the filing of this motion.
Rule 11 was enacted to "discourag[e] dilatory and abusive
litigation tactics and eliminat[e] frivolous claims and
defenses, thereby speeding up and reducing the costs of the
litigation process" (McMahon v. Shearson/American Express,
Inc., 896 F.2d 17, 21 [2d Cir. 1990]; see also Fed.R.Civ.P. 11
advisory committee's note, reprinted in 97 F.R.D. 165, 198
 ["should . . . help to streamline the litigation process
by lessening frivolous claims or defenses"]). Sanctions should
be sparingly imposed, however, and care should be taken to
avoid chilling creativity or stifling enthusiasm (see Security
Indus. Ass'n v. Clarke, 898 F.2d 318 [2d Cir. 1990]).
Applying the "objectivaly reasonable" test to defendant
Buchanan's motion and other papers as this Court must (see
Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253
[2d Cir. 1985]), the Court finds that Buchanan did not violate
Rule 11, and therefore declines to impose sanctions upon this
defendant or its counsel.
Accordingly, the request by the plaintiff for sanctions
against Buchanan is denied.
For the foregoing reasons, the motions by the defendants
Buchanan and Scotty for summary judgment dismissing all of the
causes of action in plaintiff's amended complaint are denied,
as is the plaintiff's request for sanctions against defendant
Buchanan. The City's motion for summary judgment is granted in
part and denied in part as set forth above.
All parties are directed to appear in Chambers for a status
conference at 8:30 a.m. on June 7, 1990.
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