ADDITIONAL CASES Time Warner Cable, Plaintiff v. Old HDE Inc., Individually and as Successor in Interest to Hylan Datacom & Electrical Inc., Hylan Datacom & Electrical Inc., Hylan Datacom & Electrical LLC, Individually and as Successor in Interest to Hylan Datacom & Electrical Inc. Defendant; Third-Party 595872/2019 The following e-filed documents, listed by NYSCEF document number (Motion 008) 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, it is ordered that defendant Empire City Subway Company (Limited)1 (“Empire”)’s motion for summary judgment and dismissal of plaintiff’s complaint, pursuant to CPLR 3212, is determined as follows: Background Plaintiff commenced the instant action to recover for injuries he allegedly sustained on November 22, 2016, at approximately 1:00 a.m. as a result of an accident that occurred on the roadway located at Hudson Street, at its northwest intersection with Canal Street, in the vicinity of 205 Hudson Street, New York, New York. Defendant now seeks summary judgment dismissing plaintiff’s complaint on the basis that Empire was not negligent in the operation of a trench because the trench was properly cordoned off with safety devices. Additionally, defendant asserts that plaintiff’s operation of a Citi Bike while intoxicated was the sole proximate cause of the accident. Plaintiff’s Deposition Testimony On November 22, 2016, at approximately 1:00 a.m., plaintiff rode a Citi Bike home from a bar, traveling northwest in the right-most lane on Canal Street as the street runs diagonally (NY St Cts Elec Filing [NYSCEF] Doc No. 189, Poppema dep at 18, 23-24). When attempting to cross Hudson Street, plaintiff fell from the Citi Bike and landed face first on the ground, hitting his chin and right hand on the sidewalk (NYSCEF Doc No. 189, Poppema dep at 26, 28). Before the accident, plaintiff drank four beers over several hours starting at approximately 7:00 or 8:00 p.m. (NYSCEF Doc No. 189, Poppema dep at 19-20). According to plaintiff, a trench in the roadway caused him to fall off the bike and go over the handlebars, when the front wheel of his bike hit the trench (NYSCEF Doc No. 189, Poppema dep at 27). Plaintiff described the trench as a long manmade cutout measuring about 60 to 80 centimeters wide and about 10 centimeters deep with a metal plate next to it (NYSCEF Doc No. 189, Poppema dep at 26-27). At the deposition, plaintiff examined a photograph showing the trench and a metal plate next to it (NYSCEF Doc No. 189, Poppema dep at 51). Plaintiff identified the photograph as the photograph he took after he crashed (id.). Plaintiff was familiar with the area and had been there a couple of times during the summer (NYSCEF Doc No. 189, Poppema dep at 25). Plaintiff testified that he had not seen the trench before the accident (NYSCEF Doc No. 189, Poppema dep at 26, 65). Plaintiff also testified that as he approached the intersection, he did not notice any signs of construction, fencing, or barricades (NYSCEF Doc No. 189, Poppema dep at 56, 96-97), but that there were always cones in that area used to direct traffic to the Holland tunnel and control the lanes of traffic (NYSCEF Doc No. 189, Poppema dep at 98-99). Plaintiff maintained that although there were streetlights on Canal Street, that corner is “really dark…[but] once you’re there your eyes get used to the lack of light then you can still see most things” (NYSCEF Doc No. 189, Poppema dep at 63). Plaintiff testified that the lighting was a reason he did not see a trench in the roadway (NYSCEF Doc No. 189, Poppema dep at 64). After the fall, plaintiff was able to get up and get to his feet, at which time an individual, who plaintiff presumed to be a construction worker, came over and attempted to help (NYSCEF Doc No. 189, Poppema dep at 29). Plaintiff became angry at the construction worker because he thought the construction worker was responsible for the accident (NYSCEF Doc No. 189, Poppema dep at 29-32). Plaintiff tried to curse at him, but it was hard to speak because plaintiff’s jaw was broken, he was bleeding, and some of his teeth were broken (id.). Plaintiff did not recall physically attacking the construction worker but stated that he may have given the construction worker a push (NYSCEF Doc No. 189, Poppema dep at 93). After the accident, plaintiff went to Bellevue Hospital in an ambulance (NYSCEF Doc No. 189, Poppema dep at 34). Defendant’s Deposition Testimony Dan Tergensen, an Empire employee and construction manager, testified that Empire “owns manholes and telephone infrastructure conduit connecting those manholes and [leases] it out to various communication companies” (NYSCEF Doc No. 190, Tergensen dep at 10-11). As a construction manager, Tergensen’s work included overseeing contractors working for Empire in Manhattan (NYSCEF Doc No. 190, Tergensen dep at 11-12). On November 22, 2016, Empire was installing conduit from Hudson Street to Canal Street through Renwick Street to connect two Empire manholes (NYSCEF Doc No. 190, Tergensen dep at 15, 17-18), which involved cutting the roadway (NYSCEF Doc No. 190, Tergensen dep at 29-30). A typical cut would be between 18 inches and 24 inches wide (id.). Tergensen testified that based on his review of a witness report and accomplishment, or progress notes, Empire was working at the location of the accident that night (NYSCEF Doc No. 190, Tergensen dep at 56-57). Although Tergensen was not present at the location at the time of the accident (NYSCEF Doc No. 190, Tergensen dep at 33), he testified that when working in an area, Empire used traffic barrels, barricades, orange tape between traffic barrels or barricades, and vehicles along the perimeter for protection, and, at nights, lit up the area (NYSCEF Doc No. 190, Tergensen dep at 59). Tergensen was not aware whether the work site had portable lights or a flagman at this location in November of 2016 (NYSCEF Doc No. 190, Tergensen dep at 60). Tergensen also did not know of any violations, besides a “Corrective Action Request”2 issued by the Department of Transportation, that Empire may have received while working in this location (NYSCEF Doc No. 190, Tergensen dep at 44 & 61). Michael Haynes Affidavit Michael Haynes, a senior conduit worker for Empire, worked at the jobsite located at the northwest intersection of Hudson Street and Canal Street on November 16, 2016 (NYSCEF Doc No. 194, Haynes aff at 1, para 2-3). According to Haynes, before excavating the trench, his team set up “traffic cones, traffic barrels, and orange and white construction sticks that were connected to one another by caution tape,” (NYSCEF Doc No. 194, Haynes aff at 1, para 4). Haynes reflected that “lighting conditions were good” due to streetlights and supplemental lighting provided by Empire (NYSCEF Doc No. 194, Haynes aff at 2, para 7-9). According to Haynes, Empire set up all appropriate safeguards around the trench, and all the safeguards were highly visible (NYSCEF Doc No. 194, Haynes aff at 2, para 12-15). Haynes attested that he was working at the site, when at approximately 12:30 a.m., plaintiff rode a Citi Bike illegally on the sidewalk and drove through all the safeguards Empire had set up (NYSCEF Doc No. 194, Haynes aff at 2, para 5). Haynes averred that he stood just outside the trench on Canal Street, when he heard a loud crashing sound and observed plaintiff on the ground, bleeding from his mouth (NYSCEF Doc No. 194, Haynes aff at 2, para 7). Haynes also observed that the safeguards his team had set up were “blown through” (NYSCEF Doc No. 194, Haynes aff at 2, para 7). Haynes tried to help plaintiff and retrieved a first aid kit from his truck but, according to Haynes, plaintiff began to swear at him and attempted to strike him, ultimately pushing him on his right shoulder (NYSCEF Doc No. 194, Haynes aff at 2, para 7-9). Haynes characterized plaintiff as being severely intoxicated (NYSCEF Doc No. 194, Haynes aff at 2, para 8). He attested that plaintiff was not making sense or speaking intelligibly (id.). Discussion Standard for Summary Judgment The proponent of a summary judgment motion has the initial burden of establishing a prima facie showing that it is entitled to summary judgment as a matter of law, providing sufficient evidence that no material issues of triable fact exist (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). Once this burden has been met, the burden shifts to the party opposing the motion to “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or [to] demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The function of the summary judgment procedure is issue finding, not issue determination (Vega v. Restani Constr. Corp., 18 NY3d 499, 505 [2012] ["It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact"]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Documents offered in support of and in opposition to a summary judgment motion must be viewed in a light most favorable to the party opposing the motion (see Sherman v. New York State Thruway Auth., 27 NY3d 1019, 1021 [2016]). Open and Obvious Doctrine Defendant insists that, as a matter of law, it owed no duty to plaintiff because the trench was open and obvious and not inherently dangerous. Defendant argues that the trench was not a dangerous or defective condition, but “an intentional part of a conduit installation project,” created in accordance with a permit obtained from the New York City Department of Transportation (NYSCEF Doc No. 180, para 29). Defendant asserts that Empire was working on the trench when plaintiff disregarded all appropriate safeguards in place and rode through them in his intoxicated state. Defendant insists that the trench was not the type of condition that would be considered inherently dangerous as a matter of law because it was surrounded by traffic cones, traffic barrels, and orange and white construction sticks, as well as caution tape, making the trench readily observable to anyone in the area. Defendant argues that plaintiff testified that he was familiar with the area and knew that there were traffic cones in the area; therefore, the trench was open and obvious, and defendant was not negligent in its maintenance of the trench. In opposition, plaintiff asserts that there are issues of fact regarding the safeguards that were in place and the work that was being performed at the time of the accident, since plaintiff did not notice any construction vehicles or construction occurring after the accident and did not observe barricades or mesh fencing at the intersection. While plaintiff admits to seeing traffic cones in the vicinity of the trench, he insists that traffic cones were often used in the area for directing traffic to the Holland Tunnel and controlling the lanes of traffic. Plaintiff contends that the trench was backfilled, narrow, and not readily observable. Tergensen testified that it was Empire’s protocol to use traffic barrels, barricades, orange tape between traffic barrels or barricades, and vehicles along the perimeter for protection, as well as to light the area at night. Plaintiff points out, however, that Tergensen was not present at the site while Empire performed its work and had no personal knowledge of the safeguards in place at the time of the accident. Plaintiff contends that Haynes did not observe plaintiff until he was already on the ground and could not conclude that plaintiff rode illegally on the sidewalk and blew through the barriers. To hold a defendant liable for negligence, a court must evaluate whether the elements of a cause of action for negligence have been met, specifically: (1) whether the defendant owed a duty to the plaintiff; (2) whether the defendant breached that duty; and (3) whether the plaintiff sustained and injury as a result of the breach (Akins v. Glens Falls City School Dist., 53 NY2d 325, 333 [1981]). A property owner has no duty to warn a visitor of the danger, where the hazardous condition is open and obvious (Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d 69, 71 [1st Dept 2004]). Ordinarily, “[w]hile the issue whether a condition is a hazard or open and obvious is usually a question of fact, a court may determine the condition to be open and obvious ‘when the established facts compel that conclusion’” (Schulman v. Old Navy/Gap, Inc., 45 AD3d 475, 476 [1st Dept 2007] [condition was open and obvious where plaintiff admitted she knew the bracket that injured her was there, and even though it was obscured by clothing, its presence was obvious because of the presence of like brackets and racks throughout the store] quoting Tagle v. Jakob, 97 NY2d 165, 169 [2001]). To demonstrate that the condition was open and obvious, a defendant must establish that “[t]he hazard or dangerous condition [was] of a nature that could not reasonably be overlooked by anyone in the area whose eyes were open” (Westbrook, 5 AD3d at 71). Defendant urges the court to apply this doctrine to the instant case. Viewing the testimony and evidence presented to the court in a light most favorable to plaintiff, defendant has not presented evidence in admissible form to rebut plaintiff’s testimony and to establish that the proper safeguards were indeed present or that the trench was readily observable. Tergensen was not at the worksite at the time of the accident and has no personal knowledge regarding the safeguards as they were when plaintiff crashed the Citi Bike. Haynes’s affidavit, without more, merely raises questions of fact as to what safeguards were present in the area and whether they were sufficient to warn plaintiff of the existence of the trench. In any case, “the open and obvious nature of a hazard merely negates the duty to warn of the hazard, not necessarily all duty to maintain the premises in a reasonably safe condition” (Westbrook, 5 AD3d at 73). In the instant case, even if the proper safeguards were present, defendant could still be liable if the worksite was not maintained in a reasonably safe condition, which is an issue of fact for the trier of fact to determine. Proximate Cause Defendant additionally argues that it is entitled to summary judgment as a matter of law because plaintiff was severely intoxicated when he crashed the Citi Bike into the trench, and his conduct was the sole proximate cause of the accident that caused his injuries. In support of this argument, defendant submits an excerpt from plaintiff’s Bellevue Hospital medical records dated November 22, 2016 (NYSCEF Doc No. 195, exhibit N), which purports to show that plaintiff’s blood alcohol level at or near the time of the accident was at least .256 percent. Defendant points out that a blood alcohol level of .256 percent is over three times the legal limit of .08 percent. Defendant argues that although plaintiff claimed to have only had four beers in just under a six-hour window, his blood alcohol level results demonstrate that he was severely intoxicated. Plaintiff counters that the document is uncertified and cannot be considered in support of this summary judgment motion because it is not in admissible form. Additionally, plaintiff contends that expert testimony is required to interpret the results in the document, which has not been proffered by defendant in the form of an affidavit or a report. Plaintiff insists that he was able to ride his bicycle along Canal Street without issue and that his accident was caused by the uncovered trench in the roadway. Plaintiff argues that even if he was intoxicated, he was not the sole proximate cause of the accident and that there can be more than one proximate cause. Plaintiff maintains that proximate cause is an issue of fact for the trier of fact to determine. Medical records “are admissible if the proponent offers either foundational testimony under CPLR 4518 (a) or certification under CPLR 4518 (c)” (Matter of Kai B., 38 AD3d 882, 884 [2d Dept 2007] [citations omitted]; Quinones v. Ksieniewicz, 80 AD3d 506 [1st Dept 2011] [unaffirmed and unsworn medical records submitted in opposition to defendant's motion for summary judgment were inadmissible and therefore without probative value]; Rodriguez v. Triboro Bridge & Tunnel Auth., 276 AD2d 769, 770 [2d Dept 2000] ["The blood alcohol test result, as set forth in a certified hospital record, was admissible as prima facie evidence of the same pursuant to CPLR 4518 (c)"]; Xiaoli Fan v. Sabin, 49 Misc 3d 1201[A], 2015 NY Slip Op 51346[U] [Sup Ct, NY County 2015] [blood test reports accompanied by a certification of a records custodian, laying the proper foundation for the business records exception to the hearsay rule, were admissible in support of defendant's motion for summary judgment]; see generally Jajoute v. New York City Health & Hosps. Corp., 242 AD2d 674, 676 (2d Dept 1997); CPLR 4518 [a], [c]). While a blood alcohol test may be prima facie evidence of being intoxicated, if the record being offered is uncertified, the court must order that the proper foundation be made (see e.g., Westchester Med. Ctr. v. Progressive Ca. Ins. Co.,2007 WL 5256206 [Sup Ct, Nassau County Apr. 5, 2007, No. 010488/06], affd as mod by Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 AD3d 1014, 1018 [2d Dept 2008] [Supreme Court properly considered uncertified medical records containing lab results "in conjunction with the police accident report describing the circumstances of the accident"]). Defendant insists that the Bellevue hospital records are certified and should be considered as prima facie evidence in support of its claim that plaintiff was intoxicated when he crashed his Citi Bike into the trench. However, defendant has not attached a certification for the court’s consideration. The record which defendant attaches to its motion and to which it refers is a one-page document containing the results of four laboratory test results. It is unaccompanied by any certification, affidavit, or report. Moreover, besides the Haynes affidavit, wherein Haynes extrapolated that plaintiff was intoxicated from plaintiff’s alleged belligerent and incoherent behavior alone, defendant has not submitted any evidence in admissible form to corroborate what is contained in the uncertified medical record. Plaintiff’s blood alcohol level results have not been properly submitted to the court and cannot be considered in support of defendant’s motion for summary judgment. But even if the blood test results had been properly offered, questions of fact would remain as to whether plaintiff’s intoxication caused the fall, which could not be resolved by a showing of intoxication alone. While defendant argues that plaintiff’s conduct was the sole proximate cause of the accident, once the court finds that a prima facie case of defendant’s negligence has been established as a substantial cause of events leading to a plaintiff’s injury, it is for the fact finder to determine the proximate cause (Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 314-315 [1980] ["(d)epending upon the nature of the case, a variety of factors may be relevant in assessing legal cause"]; Weremecki v. Broadway Cont. Corp., 96 AD3d 1048, 1049 [2d Dept 2012] ["(t)he issue of proximate cause is generally a matter left to the trier of fact, provided that the court has been assured that a prima facie case has been established"]). It is well-settled that in order “to establish that a plaintiff was the sole proximate cause of his or her injuries, the defendants must show that the plaintiff engaged in reckless, unforeseeable or extraordinary conduct and that such conduct constituted a superseding cause of the accident. The issue is whether a plaintiff created a dangerous risk of injury” (Somma v. City of New York, 28 Misc 3d 1231[A], 2010 NY Slip Op 51567[U]*6 [Sup Ct, NY County 2010] [citations omitted]). Similar to the case at bar, in Somma, the plaintiff rode his bicycle in Riverside Park at night, when he hit a concrete slab on a path, fell forward, and became a quadriplegic as the result of his injuries (id.). Somma, a bartender, had two mixed drinks and two beers in the hours leading up to his crash (id.). Somma was familiar with the area, and there was ambient city light in the park (id.). He decided to ride his bicycle on a dirt path that he had not previously ridden, even though there were large stones that partially obstructed the path (id.). There was also a detour sign that advised cyclists that the dirt path was closed and to use the paved path through a tunnel (id.). The asphalt to the tunnel path was painted with white outlines of bicyclists (id.). Somma had only walked on the dirt path before but had seen people bicycling there on other occasions (id.). Defendant City argued that the sole proximate cause of plaintiff’s accident was Somma’s decision to bicycle onto an unpaved and unlit path while intoxicated (id.). The court found that issues of fact existed regarding whether the risk was obvious, given the presence of the stones that partially blocked the path and the detour sign (id.). The court held that “one’s familiarity with an area or situation, the conspicuousness of a risk, and knowledge of the risk are all factors to be considered in determining whether a plaintiff was the sole proximate cause of his or her injury” (id. at 7). The court also found that “although it was plaintiff’s decision to proceed on the path, at night and after consuming alcohol, thereby creating an opportunity for his injury, it was the dangerous condition on the path that actually caused his injury…[a]nd even if plaintiff was legally intoxicated, he was apparently able to navigate his way from 47th Street to the Park and through the Park to the site of the accident” (id. at 8) Thus, in Somma, the court held that the defendant failed to establish that plaintiff’s intoxication in itself was the sole proximate cause of his accident (id.). Similarly, here, issues of fact exist as to plaintiff’s familiarity with the area and the conspicuousness of the trench, as well as to other factors, such as the sufficiency of the safeguards present at the intersection, if any, the lighting in the area, and plaintiff’s knowledge of the risk, among others. Additionally, even if plaintiff was intoxicated, it is for the fact finder to determine whether the cause of his accident was his intoxication or the presence of the trench in the roadway, given that plaintiff was able to traverse Canal Street from the bar on his Citi Bike without issue until he encountered the trench. Based on the foregoing, defendant’s motion is denied. CONCLUSION Accordingly, it is ORDERED that the motion by defendant Empire City Subway Company (Limited) for summary judgment (sequence number 008) is denied in its entirety. This constitutes the decision and order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: January 25, 2024
