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Rhonda Wittorf, Plaintiff-Appellant v. the City of New York

March 26, 2013

RHONDA WITTORF, PLAINTIFF-APPELLANT, --
v.
THE CITY OF NEW YORK, DEFENDANT-RESPONDENT.



Wittorf v City of New York

Decided on March 26, 2013

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Saxe, DeGrasse, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered August 17, 2011, which, inter alia, granted defendant's motion to set aside the jury verdict on the ground that plaintiff failed to establish a prima facie case, affirmed, on the law, without costs.

On November 5, 2005, plaintiff and her boyfriend rode their bicycles to the entrance of the Central Park transverse road at West 65th Street, where a City Department of Transportation (DOT) crew supervisor was in the process of setting up warning cones to close off both lanes of the road to vehicular traffic before starting to repair a "special condition" in the transverse. The supervisor testified that a "special condition" was a defect "bigger than a pothole" but "less involved" than road resurfacing.

Plaintiff's boyfriend asked the supervisor if they could ride through, and he told them "go ahead." Although plaintiff's boyfriend crossed the transverse safely, plaintiff was injured when she struck a large pothole.

The jury found that the roadway where the accident occurred was not in a reasonably safe condition. However, the City could not be held liable on that basis because the jury found that the City had not received timely written notice of the particular defect and did not cause or create the condition by an affirmative act of negligence. The sole basis for the City's liability was the jury's findings that the supervisor was negligent in allowing plaintiff to enter the transverse and that his negligence was a substantial factor (60%) in causing plaintiff's injuries.

The trial court orally denied plaintiff's motion to set aside the verdict on prior written notice, cause and create, comparative negligence (40%) and additur. Subsequently, the trial court granted defendant's written motion pursuant to CPLR 4404 to set aside the verdict on the ground that the City was immune from liability because the supervisor was engaged in the discretionary governmental function of traffic control, not the proprietary function of street repair, when he allowed plaintiff to proceed.

" Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general'" (Valdez v City of New York, 18 NY3d 69, 76-77 [2011], quoting McLean v City of New York, 12 NY3d 194, 203 [2009]). Accordingly, "even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority" (id. at 76; see also McLean at 202). In contrast, when performing a proprietary function, the governmental entity is generally subject "to the same duty of care as private individuals and institutions engaging in the same activity" (Schrempf v State of New York, 66 NY2d 289, 294 [1985]).

"A governmental function generally is defined as one undertaken for the protection and safety of the public pursuant to the general police powers'" (Murchinson v State of New York, 97 AD3d 1014, 1016 [3rd Dept 2012], quoting Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997]). A proprietary function is one in which "governmental activities essentially substitute for or supplement traditionally private enterprises"(Sebastian v State of New York, 93 NY2d 790, 793 [1999] [internal quotation marks omitted]).

" A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions . . . [and] any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category'" (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446 [2011], cert denied _ US_, 133 S Ct 133 [2012], quoting Miller v State of New York, 62 NY2d 506, 511-512 [1984]). In performing this analysis, a court must examine "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred" (Miller at 513 [internal quotation marks omitted]; see also Matter of World Trade Ctr. Bombing Litig. at 447).

The dissent believes that the City must be held liable for the supervisor's failure to warn her of the dangerous condition in the transverse, or for his negligently waving her into a place of danger, because those acts were integrally related to the pothole repair undertaken by the City in a proprietary capacity. However, at the time of plaintiff's accident, the repair work had not begun, and the supervisor was engaged in traffic control, which is "a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers" (see Balsam v Delma Eng'g Corp., 90 NY2d at 968; see also Santoro v City of New York, 17 AD3d 563 [2005]; Devivo v Adeyemo, 70 AD3d 587 [1st Dept 2010]). Thus, the City is entitled to governmental function immunity because the specific act or omission that caused plaintiff's injuries was the supervisor's discretionary decision to allow plaintiff to proceed since his crew had not completed its preparations for the road work, and not the City's proprietary function in maintaining the roadway (see Clinger v New York City Tr. Auth., 85 NY2d 958, 959 [1995]; Kadymir v New York City Tr. Auth., 55 AD3d 549, 552 [2nd Dept 2008]). When plaintiff encountered the supervisor, he was not at the entrance of the transverse to repair potholes; the repair was to take place later, under the second overpass, which, according to plaintiff's boyfriend, was a "good distance" away. The fact that the supervisor was a DOT employee and not a police officer is of no consequence. Controlling traffic is a governmental function.

Plaintiff also argues that the jury's finding that the City had not received written notice of the roadway condition was against the weight of the credible evidence. Plaintiff asserts that there was written notice of the defect as far ...


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