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.
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
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.
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
amended complaint. Buchanan, Scotty and the City now move for
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 ; 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 ). 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.
With these basic principles in mind, the Court now turns to
the merits of the issues brought before the Court by way of