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Decided on January 14, 2011
Supreme Court, Richmond County

13229/04
Thomas P. Aliotta, J.
Upon the foregoing papers, the motion for summary judgment of defendant THE CITY OF [*2]NEW YORK is denied without prejudice to renewal upon the completion of discovery as hereinafter provided.
Plaintiff commenced this action to recover damages for injuries she allegedly sustained when the vehicle in which she was riding as a passenger collided with a vehicle driven by defendant SEAN F. BELL on Staten Island. The vehicle in which plaintiff was riding was owned by defendant JOHN CARELLI and driven by his daughter, defendant DONNA CARELLI. It appears from the papers submitted to the Court that the CARELLI vehicle was traveling eastbound on Katan Avenue when it collided with the BELL vehicle, which was traveling southbound on Eltingville Boulevard. According to plaintiff, the accident was caused by the negligence of both drivers in the operation of their respective vehicles. Also claimed to be liable is THE CITY OF NEW YORK (hereinafter "THE CITY") for failing to replace a missing or fallen stop sign that had been located on Katan Avenue at its intersection with Eltingville Boulevard. Plaintiff maintains that THE CITY knew or should have known prior to the accident that the stop sign had disappeared.
In the current application, THE CITY moves for summary judgment dismissing the complaint and all cross claims against it. According to THE CITY, it did not have the required actual or constructive notice of the purportedly missing stop sign prior to April 15, 2003, the date of the subject motor vehicle accident. As a result, THE CITY contends that it could not have corrected the condition prior thereto. THE CITY further contends that when it conducted a search for all work orders pertaining to a downed stop sign at the subject intersection for the two years prior to and including the date of plaintiff's accident, no work orders could be found pertaining to the site in question.In addition, THE CITY relies upon the deposition transcript of Stuart Schorr, Borough Engineer for Staten Island, who testified that the Department of Transportation ("DOT") was not notified of any problems with the traffic control devices (i.e., stop signs) at the subject location prior to the date of the accident. More particularly, Mr. Schorr testified that the only work performed at this intersection occurred on November 30, 2001, two years prior to the collision, when three "faded" stops signs were replaced. No other work was performed at the intersection by THE CITY between November 30, 2001 and April 15, 2003. In further support of its motion, THE CITY contends that there is no proof that the parties themselves or anyone else familiar with the subject intersection had advance knowledge of the alleged defect. Neither is there proof that the condition existed for any given period of time prior to the accident date. In this regard, THE CITY references the EBT testimony of defendant DONNA CARELLI, who indicated that she frequently traveled the streets in the area where the accident occurred; was generally familiar with the intersection; but never noticed that the stop sign on Katan Avenue at Eltingville Boulevard was missing.
Finally, THE CITY contends that there is no proof of any negligence on its part, e.g., that the allegedly missing stop sign was a proximate cause of the collision. Instead, THE CITY contends that it was the negligence of the respective drivers that caused the accident to occur, and that in the absence of any evidence that THE CITY had prior notice of the alleged defect, it cannot be held liable for the collision.
In opposition, plaintiff contends that summary judgment should be denied due to the fact that numerous questions of fact exist regarding THE CITY's knowledge of the fallen stop sign, as well as its failure to properly maintain the traffic control devices under its control.Plaintiff also contends that THE CITY's motion is premature due to the fact that she has yet to file a note of issue, and has not been given a full opportunity to conduct discovery. In particular, plaintiff has yet to depose the police officer who prepared the police accident report regarding the accident, who seemed to possess personal knowledge of the purported defect. To the extent relevant, Officer Riccardi indicated on his report that the stop sign on the southbound side of Eltingville Boulevard was removed from the ground due to construction and never replaced. According to plaintiff, the accident report containing Officer Riccardi's statement is admissible as an exception to the hearsay rule as an admission against THE CITY's interest. In addition, plaintiff claims that Officer Riccardi's knowledge of the missing traffic sign is evidence of notice to THE CITY. In the alternative, plaintiff contends that the officer's statement that "the stop sign was removed from the [*3]ground and never replaced" is admissible under the business records exception to the hearsay rule because Officer Riccardi was under a duty to report the dangerous conditions existing at the intersection. She also argues that hearsay is admissible in opposition to a summary judgment motion as long as it is not the only proof submitted.
Plaintiff also maintains that THE CITY cannot prove lack of prior notice without showing when the intersection was last inspected. Here, THE CITY has not submitted any proof regarding its last inspection of traffic control devices at the subject location. Plaintiff has also submitted the affidavit of a witness who claims that he travels through the subject intersection every week; is fully familiar with the appearance of the intersection; and believes that the stop sign had been either knocked down or removed during the first two weeks of April, 2003; i.e., no more than 15 days prior to the date of the collision. However, there is no evidence that he reported that condition to a responsible CITY agency.
Finally, plaintiff questions the validity of THE CITY's search of DOT records in the absence of any certification or authentication by the employee who actually conducted the search. As a result, plaintiff argues that there is no evidentiary foundation on which these records may be admitted on the issue of THE CITY's alleged lack of notice.
Defendant DONNA CARELLI also opposes THE CITY's motion on the ground that questions of fact exist regarding THE CITY's knowledge of the downed stop sign. In this regard, MS.
CARRELLI relies on the EBT testimony of defendant SEAN BELL, who stated that his parents told him that the subject stop sign had either been knocked down or removed due to construction at the subject intersection. In light of this testimony, MS. CARELLI argues that additional discovery is necessary before the complaint against THE CITY can be dismissed, as it may be chargeable with notice that the stop sign was missing.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once such a showing has been made, the burden shifts to the party opposing the motion to tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial (see Zuckerman v. City of New York, 49 NY2d 557). Accordingly, the Court's function when determining a motion for summary judgment is issue-finding rather than issue

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