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ZUCKER v. CAPITELLI

May 14, 1990

SARA ZUCKER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE GOODS, CHATTELS AND CREDITS WHICH WERE OF HILLA ZUCKER, DECEASED, PLAINTIFF,
v.
ANDREW CAPITELLI, AN INFANT OVER THE AGE OF 14 YEARS, INDIVIDUALLY AND BY HIS PARENT OR NATURAL GUARDIAN, BUCHANAN CONSTRUCTION CORP., SCOTTY CONSTRUCTION CORP. AND THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM DECISION AND ORDER

In this wrongful death action the defendants Buchanan Construction Corporation ("Buchanan") and Scotty Construction Corporation ("Scotty") move for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that there are no genuine issues of material fact in dispute. The defendant, the City of New York ("City"), also moves for summary judgment claiming that as a matter of law section 7-201(c) of the Administrative Code of the City of New York ("City Code") bars recovery, since the City had not received prior written notice of the alleged defective, unsafe or obstructive condition. For the reasons stated below, the motions of Buchanan and Scotty are denied in all respects, and the City's motion is granted in part and denied in part.

FACTUAL BACKGROUND

On December 2, 1988 at 3:25 a.m., Hilla Zucker was driving a vehicle owned by Shimshon Zucker in a westerly direction on 39th Avenue approaching the intersection of 211th Street in Bayside, Queens. Defendant Andrew Capitelli ("Capitelli"), a 16-year old without a driver's license, was operating a stolen automobile heading northbound on 211th Street toward 39th Avenue while fleeing from the police. After admittedly running the stop sign on 211th, the vehicle operated by Capitelli collided with the Zucker vehicle at the intersection. The plaintiff alleges that Zucker was unable to see Capitelli, since an 8-foot high solid wood construction fence bounding property on the southeast corner of the intersection allegedly obstructed her view as she was travelling westbound on 39th Avenue. Hilla Zucker died as a result of the injuries sustained from the collision.

The plaintiff, as administratrix of the estate of Hilla Zucker, filed a complaint on February 9, 1989, followed by an amended complaint on February 14, 1989, naming Capitelli, Buchanan, Scotty and the City as defendants.

As to Buchanan, Scotty and the City, the plaintiff's causes of action are based upon the erection and maintenance of the construction fence which purportedly obstructed Zucker's view of 211th Street, just south of 39th Avenue. The 8-foot high solid wood fence extended 108 feet along the southern sidewalk of 39th Avenue and 60 feet along the eastern sidewalk of 211th Street. The fence enclosed a construction site owned by Buchanan at the time of the accident, and was erected to protect the public from injury during demolition. It is also alleged that the fence slightly encroached upon both sidewalks.

Scotty is the former owner of the construction site and erected the fence. Two weeks prior to the accident it conveyed the premises to Buchanan. The plaintiff alleges that Scotty was negligent in erecting and/or maintaining the fence, and Buchanan was negligent in maintaining the fence after the premises were purchased from Scotty.

The plaintiff further alleges that the City was negligent in failing to adequately protect its streets and highways and persons lawfully using them in that the fence encroached upon the sidewalk and obstructed visibility for persons travelling westbound on 39th Avenue. The plaintiff also contends that the City failed to post a sign or light at the intersection, warning motorists of the obstructed view and possible danger.

PROCEDURAL SETTING

On April 28, 1989, Scotty made a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. By order dated May 5, 1989, the Honorable Reena Raggi denied the motion without prejudice to renew at an appropriate time. The defendants, with the exception of Capitelli, appeared, answered and filed cross-claims seeking contribution and/or indemnification. Plaintiff sought, and was subsequently granted, leave to amend the existing amended complaint. Buchanan, Scotty and the City now move for summary judgment.

DISCUSSION

a) Standard of Review.

Pursuant to Fed.R.Civ.P. 56(c), summary judgment shall be rendered if the supporting evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law (see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 [1986]; Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 [2d Cir. 1986], cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 [1987]). A genuine issue is "material" if the fact in dispute is one which might affect the outcome of the litigation and there is sufficient evidence on both sides of the issue to infer that it could reasonably be resolved in favor of either party (see Scan-Plast Indus., Inc. v. Scan-import Am. Inc., 652 F. Supp. 1156, 1160 [E.D.N.Y. 1987], citing Anderson, supra). Nonetheless, summary judgment is a drastic remedy which should be used sparingly and cautiously so as to ensure the non-movant's right to have material, genuine claims or defenses tried by a jury. Although summary judgment is desirable to avoid unnecessary trials, it should not be viewed "as a substitute for trial" (see Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 [2d Cir. 1987]).

On a motion for summary judgment, the Court is required to view the evidence submitted by the parties in the light most favorable to the non-movant plaintiff (see Burtnieks v. The City of New York, 716 F.2d 982, 985 [2d Cir. 1983]). Accordingly, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant (see Anderson, 477 U.S. at p. 255, 106 S.Ct. at 2513). In addition, the Court notes that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge" (Anderson, supra, 477 U.S. at p. 255, 106 S.Ct. at p. 2513).

With these basic principles in mind, the Court now turns to the merits of the issues brought before the Court by way of these ...


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