Weinberg Brief

7/31/2019 Weinberg Brief

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COURT OF APPEALS OF THE STATE OF NEW YORK

----------------------------------------------------------------X

GRACE E. WEINBERG and JONAH WEINBERG,

Plaintiff-Appellant, NOTICE OF MOTION

FOR PERMISSION TO

APPEAL TO THE

COURT OF APPEALS

-against- Index Number 18673/98

County of Queens

THE CITY OF NEW YORK and

CONSOLIDATED EDISON COMPANY,TRI-MESSINE CONSTRUCTION, CO. and

SAFEWAY CONSTRUCTION ENTERPRISES,

INC. ,

Defendants-Respondents.

----------------------------------------------------------------X

S I R S :

PLEASE TAKE NOTICE that the undersigned will move this

Court at a Motion Part thereof to be held at the Courthouse located at Court of

Appeals Hall, 20 Eagle Avenue, Albany, New York on the day of July,

2012 for an Order granting the Plaintiff-Appellant permission to appeal to the

Court of Appeals from an Order of the Appellate Division Second

Department affirming a decision and order of the Supreme Court, Queens

County (Flug, J.S.C.) granting summary judgment to the City Of New York


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dismissing Plaintiff-Appellants action against the City Of New and for such

other and further relief as the Court may deem just and proper.

Dated: Queens, New York

July 2, 2012

YOURS, etc.

_________________________

ABRAHAM J. KATZ

Attorney for Plaintiff-Appellant

Office and P. O. Address1979 Marcus Avenue, Suite 210

Lake Success, New York 11042

718-747-0100


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TABLE OF CONTENTS

Page

Notice of Motion . . 1

Table of Contents ............... 2

Questions Presented for Review 3

Procedural History. . . .3

Jurisdiction .... 6

Argument . . 6

Conclusion .... . . 9

Exhibit1- New York Times Article Dated August 19, 2008 . . . . . . . .

Exhibit 2- Citys Response To Order Directing Production Of The

Digital Sewer Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Exhibit 3- Sample Digital Sewer Map. . . . . . . . . . . . 11

Exhibit 4- Appellate Division Decision and Order withNotice of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Exhibit 5- Supreme Court Decision and Order (Flug, J.S.C.) . . . . . . 21


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QUESTIONS PRESENTED FOR REVIEW

Did the proof presented by the Plaintiff to the lower court

demonstrating that the Defendant, THE CITY OF NEW YORK, had not

complied with the lower court order requiring the production of the digital

sewer map for the location of the excavation that caused the Plaintiffs

accident raise a question of fact that precluded the lower court from granting

summary judgment to the Defendant, THE CITY OF NEW YORK?

PROCEDURAL HISTORY

This is an action for serious and permanent injuries suffered by

the Plaintiff, GRACE E. WEINBERG, when she was caused to fall to the

ground due to a defective condition on the roadway on 67th

Avenue, between

164th

Street and 165th

Street, Queens County, in the City and State of New

York. The City of New York was named as a Defendant because the City of

New York has the responsibility to provide water and sewer services to the

citizens of the City of New York and to maintain the pipes that deliver those

services. Throughout the lower court proceedings, the court was quite aware

that the Plaintiffs theory of liability was not that the City of New York had

written notice of the defect that had caused the Plaintiffs injury but that the

City of New York had created the defective condition by excavating on 67th


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Avenue, between 164th

Street and 165th

Street, Queens County, in the City

and State of New York to repair a water or sewer pipe. The Plaintiff through

discovery attempted to obtain records from the City of New York that would

reveal whether the City of New York had created the excavation that had

caused the Plaintiffs injuries. During those proceedings, the City of New

York did not produce any of those records voluntarily nor did the City of New

York produce witnesses with knowledge until the Plaintiff obtained a Court

order directing the production of those records. The question that remains

unanswered is whether the City of New York had complied with the order of

the lower court to produce the digital sewer map and repair records for the

location of the excavation that caused the Plaintiffs injuries.

On June 9, 2009, Justice Flug denied the initial motion of

summary judgment made by the City of New York on the grounds that

depositions and discovery still needed to be done including information and

records from the Sewer Department and the Department of Design and

Construction from the City on excavations at the site of the accident (R.

254). In response to that order a deposition was taken of Anthony

Cammarata, an employee of the New York City Department of

Environmental Protection. Mr. Cammarata testified that he did not search for


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any records nor did he bring any records with him to the deposition (R. 261).

Mr. Cammarata was asked about the types of maps that were maintained by

the New York City Department of Environmental Protection. At no time did

he reveal that the City of New York had created digital sewer maps that

included information on repairs to sewer pipes.

In preparation to defend a second motion for summary judgment

made by the City of New York, Plaintiffs counsel discovered through a

Google search an article that had appeared in the New York Times on August

19, 2008, attached hereto as Exhibit 1 which reported on a news conference

held by James Roberts, Deputy Commissioner of the Bureau of Water and

Sewer Operations in which he announced the completion of a six year project

to create digital sewer maps covering all of the sewer pipes within the City of

New York. Deputy Commissioner Roberts further disclosed that the digital

maps included information on repair records for every location found on the

map. Upon learning of the availability of such sewer maps, the Plaintiff

moved to compel the City of New York to produce the digital sewer map for

the location of the excavation that had caused the Plaintiffs injury. By order

dated January 26, 2010 (R. 780), Justice Flug ordered the City of New York


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to produce the digital sewer map for the location of the excavation that had

caused the Plaintiffs injury.

The City of New York responded by producing standard non-

digital sewer maps. A copy of the City of New Yorks response is annexed

hereto as Exhibit 2. The Court should note that the production of the maps

was not accompanied by an affidavit of an employee with knowledge of the

maps. Instead, counsel for the City of New York represented that the maps

produced were the digital sewer maps. Plaintiffs counsel then proceeded to

visit the Sewer Department for the County of Queens and requested a sample

of a digital sewer map. The sample digital sewer map given to Counsel for

the Plaintiff by a clerk of the Sewer Department was attached to the Plaintiffs

opposition to the motion of the City of New York for Summary Judgment and

is attached hereto as Exhibit 3. The sample digital sewer map differs

greatly from the maps produced by counsel for the City of New York. In

particular, the sample digital sewer map includes the block and lot of each

property shown on the map, the standard manner by which the City of New

York keeps records of the properties within the City of New York. The maps

produced by Counsel for the City of New York had no markings identifying

the individual properties shown by the map. By producing a map that


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differed from the maps produced by Counsel for the City of New York, the

Plaintiff raised a simple question of fact: had the City of New York complied

with Justice Flugs order compelling the City of New York to produce the

digital sewer map for the location of the excavation that had caused the

Plaintiffs injury. Justice Flug in her decision accepted the representations of

counsel for the City of New York that the City of New York had produced the

digital sewer map. The failure of the City of New York to produce the digital

sewer map for the location of the excavation that had caused the Plaintiffs

injury deprived the Plaintiff of the opportunity to learn whether the City of

New York had created the excavation through repair work.

The Appellate Division completely ignored the issue raised in

Plaintiffs brief. The Court termed the possibility that the City of New York

created the excavation as mere speculation. By not reversing the lower

court and finding that a hearing must be held to determine whether the City of

New York had produced the digital sewer map, the Appellate Division left the

question of whether the City of New York had produced the digital sewer

map unanswered.

A copy of the Appellate Division Decision and Order with

Notice of Entry was served upon Plaintiffs counsel by Consolidated Edison


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on June 6, 2012 by regular mail and by City of New York on June 12, 2012

by regular mail. The within motion for leave to appeal was therefore timely

made. A copy of the Appellate Division Decision and Order is annexed

hereto as Exhibit 4. A copy of the Supreme Court Decision and Order is

annexed hereto as Exhibit 5.

JURISDICTION

This Court has jurisdiction on this motion and of the proposed

appeal. This is an appeal from a final determination granting the City of New

York summary judgment dismissing the Plaintiffs action.

ARGUMENT

In granting summary judgment to the City of New York, the

lower court made two factual determinations. The Court first determined that

a search of Department of Environmental Protection records had been

undertaken by Anthony Cammarata, an employee of the New York City

Department of Environmental Protection and that he found that no

construction or excavation work was done by DEP on the subject roadway for

two years prior to plaintiffs accident. The record reveals that the contrary

was true. Mr. Cammarata testified at his deposition that he had performed no

record searches prior to appearing at the deposition (R. 261).


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The lower court made a second factual determination. The Court

found that the City had complied with the order of Justice Flug dated January

26, 2010 (R. 780) ordering the City of New York to produce the sewer

digital map for the location of the excavation which caused the Plaintiffs

injuries. The record reveals that the Plaintiff submitted in reply a copy of a

sample of the digital sewer map given to counsel for Plaintiff by a clerk of the

sewer department. That map differed greatly from the maps produced by the

City of New York. At a minimum, the lower court should have held a hearing

to determine whether the representation made by counsel for the City of New

York that the City of New had produced the digital sewer map for the location

of the excavation which caused the Plaintiffs injuries was true.

This Court should grant Plaintiff leave to appeal because this

case raises significant issues concerning the manner in which the City of New

York responds to discovery requests. In the within case, despite numerous

discovery requests, the City of New York never revealed that it maintained

digital sewer maps that include repair records to its sewer pipes. A witness

produced by the City of New York who claimed familiarity with the maps

maintained by the Sewer Department was deposed on December 11, 2008,

four months after the City of New York had announced that it had completed


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its project to create the digital sewer maps. He never revealed that the Sewer

Department maintained digital sewer maps. Even when ordered by the lower

Court to produce the digital sewer map for the location of the excavation that

had caused the Plaintiffs injury, the City of New York continued to withhold

those records. More importantly two attorneys for Corporation Counsels

office made representations to the Courts, once to the lower court and once to

the Appellate Division, that the maps produced by the City of New York were

the digital sewer maps for the location of the excavation that had caused the

Plaintiffs injury. Those representations are open to question. Finally,

despite being given a copy of a sample of a digital sewer map that differed

from the maps produced by the City of New York, two courts refused to

consider the possibility that the City of New York had misrepresented that it

had complied with the order to produce those maps and had withheld records

that may have shown that the City of New York had indeed created the

excavation that had caused the Plaintiffs injury.

The Appellate Division decision was particularly trouble in

upholding the dismissal of the case against the City of New York. The

Appellate Division intentionally omitted any reference to the question as to

whether the City of New York had produced the digital sewer map for the


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location of the excavation that that had caused the Plaintiffs injury. Instead,

the court described the Plaintiffs attempts to obtain records from the City of

New York to learn whether the City of New York had created the excavation

that had caused the Plaintiffs injury as mere speculation. It should not go

unnoticed by this court that the Appellate Division was careful not to disclose

to the legal community that a new discovery device was available to uncover

City of New York liability in the form of the digital sewer maps.

This court can choose to be the third court to refuse to consider

whether the City of New York failed to produce the digital maps and the

repair records included therein for the location of the excavation that had

caused the Plaintiffs injury or it can choose to protect the integrity of the

New York court system by granting this motion for leave to appeal. The

Court can then reverse that part of the order of the Appellate Division that

affirmed the Order granting summary judgment to the City of New York and

can order that a hearing be held to determine whether the City of New York

had produced the digitals sewer map and the repair records included therein

and whether the City of New York had misrepresented that it had produced

the digital sewer map for the location of the excavation that that had caused

the Plaintiffs injury.


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CONCLUSION

The Court of Appeals should grant the Plaintiff permission to

appeal the decision and order of the Appellate Division Second Department

affirming a decision and order of the Supreme Court, Queens County (Flug,

J.S.C.) dismissing Plaintiff-Appellants action pursuant to CPLR Section

3216 and for such other and further relief as the Court may deem just and

proper.


July 9, 2012

Yours, etc.

_______________________

ABRAHAM J. KATZ

Attorney for Plaintiffs-Appellants

GRACE E. WEINBERG and

JONAH WEINBERG

1979 Marcus Avenue, Suite 210

Lake Success, New York 11042

718-747-0100


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COURT OF APPEALS OF THE STATE OF NEW YORK----------------------------------------------------------------X

GRACE E. WEINBERG and JONAH WEINBERG,

Plaintiff-Appellant, NOTICE OF MOTION FORPERMISSION TO APPEAL

-against- TO THE COURT OF APPEALS

THE CITY OF NEW YORK and CONSOLIDATED

EDISON COMPANY, TRI-MESSINE CONSTRUCTION,

CO. and SAFEWAY CONSTRUCTION ENTERPRISES,INC. , Index Number 18673/98

County of Queens

Defendant-Respondent.

----------------------------------------------------------------XS I R S :

PLEASE TAKE NOTICE that the undersigned will move this Court at a

Motion Part thereof to be held at the Courthouse located at Court of Appeals Hall, 20

Eagle Avenue, Albany, New York on the day of July, 2012 for an Order granting the

Plaintiff-Appellant permission to appeal to the Court of Appeals from an Order of the

Appellate Division Second Department affirming a decision and order of the Supreme

Court, Queens County (Flug, J.S.C.) granting summary judgment to the City Of New York

dismissing Plaintiff-Appellants action against the City Of New and for such other and

further relief as the Court may deem just and proper.


July 2, 2012YOURS, etc.

______________________________ABRAHAM J. KATZ

Attorney for Plaintiff-Appellant

Office and P. O. Address

1979 Marcus Avenue, Suite 210Lake Success, New York 11042

718-747-0100


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TABLE OF CONTENTS

Page

Notice of Motion 1

Table of Contents ...............2

Questions Presented for Review 3

Procedural History .3

Jurisdiction ....6

Argument ..6

Conclusion ....9

Exhibit1- New York Times Article Dated August 19, 2008 . . . . . . . . . . . .

Exhibit 2- Citys Response To Order Directing Production Of TheDigital Sewer Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Exhibit 3- Sample Digital Sewer Map . . . . . . . . . . . . . . . . . .11

Exhibit 4- Appellate Division Decision and Order with Notice of Entry .19

Exhibit 5- Supreme Court Decision and Order (Flug, J.S.C.) ......... 21


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QUESTIONS PRESENTED FOR REVIEW

Did the proof presented by the Plaintiff to the lower court demonstrating

that the Defendant, THE CITY OF NEW YORK, had not complied with the lower court

order requiring the production of the digital sewer map for the location of the excavation

that caused the Plaintiffs accident raise a question of fact that precluded the lower court

from granting summary judgment to the Defendant, THE CITY OF NEW YORK?

PROCEDURAL HISTORY

This is an action for serious and permanent injuries suffered by the Plaintiff,

GRACE E. WEINBERG, when she was caused to fall to the ground due to a defective

condition on the roadway on 67th Avenue, between 164th Street and 165th Street, Queens

County, in the City and State of New York. The City of New York was named as a

Defendant because the City of New York has the responsibility to provide water and sewer

services to the citizens of the City of New York and to maintain the pipes that deliver those

services. Throughout the lower court proceedings, the court was quite aware that the

Plaintiffs theory of liability was not that the City of New York had written notice of the

defect that had caused the Plaintiffs injury but that the City of New York had created the

defective condition by excavating on 67th

Avenue, between 164th

Street and 165th

Street,

Queens County, in the City and State of New York to repair a water or sewer pipe. The

Plaintiff through discovery attempted to obtain records from the City of New York that

would reveal whether the City of New York had created the excavation that had caused the

Plaintiffs injuries. During those proceedings, the City of New York did not produce any

of those records voluntarily nor did the City of New York produce witnesses with

knowledge until the Plaintiff obtained a Court order directing the production of those


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records. The question that remains unanswered is whether the City of New York had

complied with the order of the lower court to produce the digital sewer map and repair

records for the location of the excavation that caused the Plaintiffs injuries.

On June 9, 2009, Justice Flug denied the initial motion of summary

judgment made by the City of New York on the grounds that depositions and discovery

still needed to be done including information and records from the Sewer Department and

the Department of Design and Construction from the City on excavations at the site of the

accident (R. 254). In response to that order a deposition was taken of Anthony

Cammarata, an employee of the New York City Department of Environmental Protection.

Mr. Cammarata testified that he did not search for any records nor did he bring any records

with him to the deposition (R. 261). Mr. Cammarata was asked about the types of maps

that were maintained by the New York City Department of Environmental Protection. At

no time did he reveal that the City of New York had created digital sewer maps that

included information on repairs to sewer pipes.

In preparation to defend a second motion for summary judgment made by

the City of New York, Plaintiffs counsel discovered through a Google search an article

that had appeared in the New York Times on August 19, 2008, annexed hereto as Exhibit

1, which reported on a news conference held by James Roberts, Deputy Commissioner

of the Bureau of Water and Sewer Operations in which he announced the completion of a

six year project to create digital sewer maps covering all of the sewer pipes within the City

of New York. Deputy Commissioner Roberts further disclosed that the digital maps

included information on repair records for every location found on the map. Upon learning

of the availability of such sewer maps, the Plaintiff moved to compel the City of New York


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to produce the digital sewer map for the location of the excavation that had caused the

Plaintiffs injury. By order dated January 26, 2010 (R. 780), Justice Flug ordered the City

of New York to produce the digital sewer map for the location of the excavation that had

caused the Plaintiffs injury.

The City of New York responded by producing standard non-digital sewer

maps. A copy of the City of New Yorks response is annexed hereto as Exhibit 2. The

Court should note that the production of the maps was not accompanied by an affidavit of

an employee with knowledge of the maps. Instead, counsel for the City of New York

represented that the maps produced were the digital sewer maps. Plaintiffs counsel then

proceeded to visit the Sewer Department for the County of Queens and requested a sample

of a digital sewer map. The sample digital sewer map given to Counsel for the Plaintiff by

a clerk of the Sewer Department was attached to the Plaintiffs opposition to the motion of

the City of New York for Summary Judgment and is attached hereto as Exhibit 3. The

sample digital sewer map differs greatly from the maps produced by counsel for the City of

New York. In particular, the sample digital sewer map includes the block and lot of each

property shown on the map, the standard manner by which the City of New York keeps

records of the properties within the City of New York. The maps produced by Counsel for

the City of New York had no markings identifying the individual properties shown by the

map. By producing a map that differed from the maps produced by Counsel for the City of

New York, the Plaintiff raised a simple question of fact: had the City of New York

complied with Justice Flugs order compelling the City of New York to produce the digital

sewer map for the location of the excavation that had caused the Plaintiffs injury. Justice

Flug in her decision accepted the representations of counsel for the City of New York that


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the City of New York had produced the digital sewer map. The failure of the City of New

York to produce the digital sewer map for the location of the excavation that had caused

the Plaintiffs injury deprived the Plaintiff of the opportunity to learn whether the City of

New York had created the excavation through repair work.

The Appellate Division completely ignored the issue raised in Plaintiffs

brief. The Court termed the possibility that the City of New York created the excavation

as mere speculation. By not reversing the lower court and finding that a hearing must

be held to determine whether the City of New York had produced the digital sewer map,

the Appellate Division left the question of whether the City of New York had produced the

digital sewer map unanswered.

A copy of the Appellate Division Decision and Order with Notice of Entry

was served upon Plaintiffs counsel by Consolidated Edison on June 6, 2012 by regular

mail and by City of New York on June 12, 2012 by regular mail. The within motion for

leave to appeal was therefore timely made. A copy of the Appellate Division Decision and

Order is annexed hereto as Exhibit 4. A copy of the Supreme Court Decision and Order

is annexed hereto as Exhibit 5.

JURISDICTION

This Court has jurisdiction on this motion and of the proposed appeal. This

is an appeal from a final determination granting the City of New York summary judgment

dismissing the Plaintiffs action.

ARGUMENT

In granting summary judgment to the City of New York, the lower court

made two factual determinations. The Court first determined that a search of Department


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of Environmental Protection records had been undertaken by Anthony Cammarata, an

employee of the New York City Department of Environmental Protection and that he

found that no construction or excavation work was done by DEP on the subject roadway

for two years prior to plaintiffs accident. The record reveals that the contrary was true.

Mr. Cammarata testified at his deposition that he had performed no record searches prior to

appearing at the deposition (R. 261).

The lower court made a second factual determination. The Court found that

the City had complied with the order of Justice Flug dated January 26, 2010 (R. 780)

ordering the City of New York to produce the sewer digital map for the location of the

excavation which caused the Plaintiffs injuries. The record reveals that the Plaintiff

submitted in reply a copy of a sample of the digital sewer map given to counsel for

Plaintiff by a clerk of the sewer department. That map differed greatly from the maps

produced by the City of New York. At a minimum, the lower court should have held a

hearing to determine whether the representation made by counsel for the City of New York

that the City of New had produced the digital sewer map for the location of the excavation

which caused the Plaintiffs injuries was true.

This Court should grant Plaintiff leave to appeal because this case raises

significant issues concerning the manner in which the City of New York responds to

discovery requests. In the within case, despite numerous discovery requests, the City of

New York never revealed that it maintained digital sewer maps that include repair records

to its sewer pipes. A witness produced by the City of New York who claimed familiarity

with the maps maintained by the Sewer Department was deposed on December 11, 2008,

four months after the City of New York had announced that it had completed its project to


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create the digital sewer maps. He never revealed that the Sewer Department maintained

digital sewer maps. Even when ordered by the lower Court to produce the digital sewer

map for the location of the excavation that had caused the Plaintiffs injury, the City of

New York continued to withhold those records. More importantly two attorneys for

Corporation Counsels office made representations to the Courts, once to the lower court

and once to the Appellate Division, that the maps produced by the City of New York were

the digital sewer maps for the location of the excavation that had caused the Plaintiffs

injury. Those representations are open to question. Finally, despite being given a copy of

a sample of a digital sewer map that differed from the maps produced by the City of New

York, two courts refused to consider the possibility that the City of New York had

misrepresented that it had complied with the order to produce those maps and had withheld

records that may have shown that the City of New York had indeed created the excavation

that had caused the Plaintiffs injury.

The Appellate Division decision was particularly trouble in upholding the

dismissal of the case against the City of New York. The Appellate Division intentionally

omitted any reference to the question as to whether the City of New York had produced the

digital sewer map for the location of the excavation that that had caused the Plaintiffs

injury. Instead, the court described the Plaintiffs attempts to obtain records from the City

of New York to learn whether the City of New York had created the excavation that had

caused the Plaintiffs injury as mere speculation. It should not go unnoticed by this

court that the Appellate Division was careful not to disclose to the legal community that a

new discovery device was available to uncover City of New York liability in the form of

the digital sewer maps.


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This court can choose to be the third court to refuse to consider whether the

City of New York failed to produce the digital maps and the repair records included therein

for the location of the excavation that had caused the Plaintiffs injury or it can choose to

protect the integrity of the New York court system by granting this motion for leave to

appeal. The Court can then reverse that part of the order of the Appellate Division that

affirmed the Order granting summary judgment to the City of New York and can order that

a hearing be held to determine whether the City of New York had produced the digitals

sewer map and the repair records included therein and whether the City of New York had

misrepresented that it had produced the digital sewer map for the location of the excavation

that that had caused the Plaintiffs injury.

CONCLUSION

The Court of Appeals should grant the Plaintiff permission to appeal the

decision and order of the Appellate Division Second Department affirming a decision and

order of the Supreme Court, Queens County (Flug, J.S.C.) dismissing Plaintiff-Appellants

action pursuant to CPLR Section 3216 and for such other and further relief as the Court

may deem just and proper

Dated: Queens, New YorkJuly 5, 2012

Yours, etc.

______________________________

ABRAHAM J. KATZ

Attorney for Plaintiffs-AppellantsGRACE E. WEINBERG and

JONAH WEINBERG

1979 Marcus Avenue, Suite 210

Lake Success, New York 11042718-747-0100


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Weinberg Brief

Documents

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