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AMACIO v. GAUDIUSO

July 7, 2005.

BELEN AMACIO, Plaintiff,
v.
VERONICA GAUDIUSO and ANTHONY GAUDIUSO, Defendants. VERONICA GAUDIUSO and ANTHONY GAUDIUSO, Third-Party Plaintiffs, v. CITY OF NEW YORK, Third-Party Defendant.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM & ORDER

Third-Party Plaintiffs Veronica and Anthony Gaudiuso (collectively "third-party plaintiffs" or "defendants Gaudiuso") brought this third-party action against third-party defendant New York City (the "City"), seeking a judgment that the City was partially or wholly liable for an accident that occurred between third-party plaintiffs and plaintiff Belen Amacio. Following completion of discovery, the City now moves for summary judgment dismissing the third-party complaint. Background

On May 21, 2001, at about 6:05 p.m. at the intersection of Ionia Avenue and Foster Road, on Staten Island, New York, a vehicle operated by defendant Veronica Gaudiuso and owned by Anthony Gaudiuso struck, from the side, a motor vehicle operated by plaintiff Belen Amacio. See Third-Party Complaint ("Third-Party Comp.") ¶ 6. The accident allegedly occurred when Veronica Gaudiuso did not stop at a stop sign located at the southwest corner of the intersection. See Third-Party Comp. ¶ 8.

  On or about March 11, 2002, plaintiff commenced a diversity tort action in federal court against defendants Gaudiuso to recover alleged personal injury damages in the amount of two million dollars. Plaintiff's Complaint ¶ 27.

  Defendants Gaudiuso subsequently impleaded the City, alleging that at the time of the accident, a tree owned by the City ("the tree") obscured the stop sign at the intersection where the accident occurred. See Third-Party Comp. ¶ 7. Defendants Gaudiuso claim that the City's failure "to plant, to position and to maintain the tree in a manner to prevent the obstruction of the stop sign from the view of operators of motor vehicles" caused the accident in whole or in part. Third-Party Comp. ¶ 8. Moreover, defendants Gaudiuso allege that "the damages that plaintiff sustained were caused solely by the negligence, carelessness and recklessness of the third-party defendants." Third-Party Comp. ¶ 11.

  Discussion

  In order for the City to be found liable, it must have had actual or constructive notice of the allegedly obstructed stop sign. Brown v. City of New York, 154 A.D.2d 325, 326, 545 N.Y.S.2d 801 (2d Dept. 1989) (dismissing claims against city where there was no evidence the City had actual or constructive notice of a missing stop sign); Brandt v. City of New York, 86 A.D.2d 574, 446 N.Y.S.2d 303 (1st Dept. 1982) (dismissing claims against city where there was no evidence the City had actual or constructive notice of a bent and twisted stop sign facing in the wrong direction). Actual notice is "notice given directly to, or received personally by, a party." Blacks Law Dictionary 1090 (8th ed. 2004). Constructive notice is "notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of." Id.

  (1)

  Here, there is no evidence that the City received actual notice of the allegedly obstructed stop sign prior to the accident. The Department of Transportation ("DOT") is responsible for monitoring the maintenance of any trees owned by the City. It was DOT's practice and procedure before and on May 21, 2001, the date of the accident, not to inspect stop signs for obstructions without first receiving a complaint or a request. A review of DOT's records establishes that it received no complaints or any other communications concerning a tree or a tree's branches obstructing a stop sign at the southwest corner of the intersection where the accident occurred. In addition, DOT has no record that any DOT traffic control inspector observed or inspected the obstruction of the stop sign during the course of his daily work. Sept. 2, 2004 Aff. of Michael Harnett, DOT's Chief Borough Engineer, ¶¶ 8, 11, 12.

  The New York City Department of Parks and Recreation ("Parks Department") is responsible for the actual grooming of city-owned trees. The Parks Department's procedure requires that it receive either an oral or written request for inspection from any person or entity, including another City agency, with a concern about a city street tree before conducting an inspection of any city-owned trees. In this case, like the DOT, the Parks Department, according to its records, never received any complaints or requests for an inspection of any of the city-owned trees at this particular intersection.

  Furthermore, the New York City Police Department ("NYPD") did not receive any complaint from the general public or a fellow city agency or make any report of an obstructed stop sign at the intersection where the accident occurred. Moreover, there is no record of any accident at this intersection prior to May 21, 2001. According to the 123 Precinct's Traffic Intelligence Reports ("TIR"), there is no record of any road or sidewalk condition at the intersection prior to or on May 21, 2001. See Sept. 7, 2004 Aff. of Daniel Byrnes, NYPD Sergeant, ¶¶ 7, 8.a, 8.b, 8.c.

  Finally, Community Board Three of the Borough of Staten Island ("Community Board Three") received no complaints of any kind about an obstruction at the intersection prior to the May 21, 2001 accident at issue. See August 25, 2004 Affidavit of Marie Bodnar, District Manager of Community Board Three, ¶ 3.

  The evidence establishes that the City did not have actual notice prior to the May 21, 2001 accident that the tree's branches were obstructing the stop sign at the ...


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