Opinion
15–2188
06-28-2017
Sean D. BECK, Plaintiff, v. CHS PROPERTIES, INC., Emilio Gabriel Maya, Individually and d/b/a Tango Café, and the Village of Saugerties, Defendants.
Jeff Brody, Esq., Counsel for Plaintiff Sean D. Beck, Jeff Brody Injury law, 236 Clinton Avenue, Kingston, New York 12402 Richard A. Levy, Esq., Counsel for Defendant, movant Emiliano Gabriel Maya and Tango Café, Levy Ratner, P.C., 80 Eighth Avenue Floor 8, New York, New York 10011 Alana R. Bartley, Esq., Counsel for Defendant, movant Village of Saugerties, Drake Loeb PLLC, 555 Hudson Valley Avenue, Suite 100, New Windsor, New York 12553 Adam Mandell, Esq., Counsel for Defendant, movant CHS Properties, Inc., Maynard, O'Connor, Smith & Catalinotto, LLP, P.O. Box 180, Saugerties, New York 12477
Jeff Brody, Esq., Counsel for Plaintiff Sean D. Beck, Jeff Brody Injury law, 236 Clinton Avenue, Kingston, New York 12402
Richard A. Levy, Esq., Counsel for Defendant, movant Emiliano Gabriel Maya and Tango Café, Levy Ratner, P.C., 80 Eighth Avenue Floor 8, New York, New York 10011
Alana R. Bartley, Esq., Counsel for Defendant, movant Village of Saugerties, Drake Loeb PLLC, 555 Hudson Valley Avenue, Suite 100, New Windsor, New York 12553
Adam Mandell, Esq., Counsel for Defendant, movant CHS Properties, Inc., Maynard, O'Connor, Smith & Catalinotto, LLP, P.O. Box 180, Saugerties, New York 12477
Lisa M. Fisher, J.
This is a premises liability matter wherein Plaintiff was injured when he stepped into a hole on the sidewalk adjacent to the premises known as 216 Main Street in Saugerties, New York. Such hole was a cracked bluestone plate which had vegetation growing out of the missing corner. The bluestone was installed by Defendant Village of Saugerties (hereinafter "Village") approximately ten years prior to the subject accident. It is unclear when the bluestone was damaged. Defendant Emiliano Gabriel Maya (hereinafter "Maya") operated Tango Café on the bottom floor of 216 Main Street. This was leased from the owner of 216 Main Street, Defendant CHS Properties, Inc. (hereinafter "CHS"). Defendant CHS' deed provided it also owned the abutting sidewalk to the street. The lease provides that Defendant Maya was "required to repair the sidewalk only in the event that [Maya's] actions cause damage to the sidewalk." The lease also provides that Defendant CHS "shall be responsible for repairs and maintenance of the building exterior."
Defendant Village has enacted a Village Code (hereinafter "the Code") which applies to the subject property. The maintenance of sidewalks is governed by section 165–5, which provides "[t]he owner or occupant of any real property abutting any sidewalk in the Village of Saugerties ... shall be responsible for maintenance of such sidewalk. Sidewalks should be kept as level as possible so as to prevent pedestrian accidents."
Presently each Defendant moves separately and near simultaneously for relief against Plaintiff, who submits opposition. The Court addresses each motion in the order they were made.
Defendant Maya/Tango Café's Motion to Dismiss
Defendant Maya and Tango Café move pursuant to CPLR R. 3211 (a) (1) (documentary evidence) to dismiss the complaint asserted against it. The complaint is not attached to the moving papers, which it is axiomatic that to dismiss a pleading the Court must indeed be furnished with it. (See CPLR R. 2214 [c]; accord Loeb v. Tanenbaum , 124 AD2d 941, 942 [3d Dept 1986].) The time to make a motion to dismiss has also well-expired. (See CPLR R. 3211 [e].) Nor is there evidence that Defendant Maya raised such affirmative defense in his answer, as Defendant Maya also failed to attach its answer. (See CPLR R. 3211 [e]; CPLR R. 2214 [c].)
Defendant CHS interposes opposition to Defendant Maya's motion, but only to the limited extent that such motion attributes liability, culpability, or fault on Defendant CHS. Defendant Village does not interpose opposition. Plaintiff references Defendant Maya's application several times, but attributes liability on Defendant CHS and Defendant Village. Plaintiff does not interpose any arguments against Defendant Maya and Tango Café's application.
Plaintiff's submitted affidavit is only "in opposition to the motions for summary judgment made by [Defendant Village] and [Defendant CHS]." There is no reference to Defendant Maya or Tango Café's motion. The Court interprets this as Plaintiff not opposing Defendant Maya or Tango Café's motion.
There is no evidence that Defendant Maya, Tango Café, or its patrons caused the damage to the sidewalk. There is no evidence that Defendant Maya was under any obligation to otherwise repair the sidewalk. The lease exculpated Defendant Maya and Tango Café from any liability or from the duty to repair the sidewalk. The parties appear to be of the consensus that Defendant Maya was not liable for the subject accident.
Notwithstanding the several procedural flaws in their application, the Court procedurally converts Defendant Maya and Tango Café's motion to dismiss to one for summary judgment under CPLR R. 3211 (c), and grants summary judgment in its favor. For the sake of the record, the Court also awards summary judgment to Defendant Maya and Tango Café as a non-movant to Defendant CHS and Defendant Village's motion for summary judgment pursuant to CPLR R. 3212 (b) .
Defendant Maya and Tango Café's motion is procedurally unsatisfactory. Therefore, for the appellate record, the Court also awards summary judgment under CPLR R. 3212 (b) which provides "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such award without the necessity of a cross-motion." Since Defendant CHS and Defendant Village properly moved for summary judgment pursuant to CPLR R. 3212, the Court finds it more-appropriate to award Defendant Maya and Tango Café summary judgment under this ground than on its defective and untimely motion to dismiss.
Defendant Village's Motion for Summary Judgment
Defendant Village moves pursuant to CPLR R. 3212 for summary judgment on the grounds that it did not have prior written notice of the alleged defect which caused Plaintiff's injury as required by Village Law § 6–628 and CPLR § 9804. This is similarly required in Code § 168–2. Defendant Village provides an affidavit from the Village Clerk who attests that she searched the records maintained by her office and Defendant Village did not receive prior written notice prior to the subject accident. Defendant Village has met its prima facie showing of entitlement to summary judgment. (See Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; Zuckerman v. City of New York , 49 NY2d 557 [1980].)
Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman , 49 NY2d at 562.) Plaintiff's opposition acknowledges that Defendant Village did not have prior written notice of the alleged defective condition. Rather, Plaintiff argues that the basis for his claim is that Defendant Village failed to enforce its own Code provision § 165–5 which requires the property owner/adjacent property owner to a sidewalk to maintain such sidewalk and keep it "as level as possible so as to prevent pedestrian accidents." This was alleged on page 5 of Plaintiff's verified bill of particulars. Plaintiff claims that Defendant Village's code enforcement officer admitted at his deposition that, based on the photographs, that the subject defect was one he could have enforced. Plaintiff also argues that there is a "special relationship" between Defendant Village and pedestrians based on the reading the plain reading of the Code § 165–5.
This argument fails. "It is well settled that a municipality cannot be liable for injuries resulting from negligence in the performance of a governmental function absent a special relationship between the municipality and the injured party" ( D'Ambra v. Di Donna , 305 AD2d 958, 959 [3d Dept 2003], quoting Gillette v. City of Elmira , 285 AD2d 909, 910 [3d Dept 2001] [citations omitted] ). This includes an alleged "failure to enforce a statute or regulation" ( Sanchez v. Village of Liberty , 42 NY2d 876, 878 [1977] ; O'Connor v. City of New York , 58 NY2d 184 [1983] ).
"To establish that a special relationship exists, a plaintiff must demonstrate ‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking’ " ( D'Ambra , 305 AD2d at 959, quoting Gillette , 285 AD2d at 910 [internal quotations and citations omitted] ). Here, it cannot be said that Plaintiff has established any of the elements, but particularly the direct contact between the municipality's agents and the injured party.
The Court has searched the record and finds that Plaintiff has not raised a question of fact or credibility warranting the denial of summary judgment in favor of Defendant Village.
Defendant CHS' Motion for Summary Judgment
Defendant CHS moves for summary judgment on the ground that it has no liability for personal injuries solely because it is the abutter to a public sidewalk. Defendant CHS contends that none of the grounds for imposing liability apply, particularly the exception where an ordinance transfers both the duty and liability on an abutting landowner. Defendant CHS argues the Code § 165–5 fails to transfer either.
Indeed, "[a] sidewalk is part of a public street or highway and the duty of maintain it is on the municipality" ( Boege v. Ulster Lighting, Inc. , 241 AD2d 600, 600 [3d Dept 1997] ). "It is well-settled principle of law that liability will not be imposed upon a landowner solely by reason of it being an abutter to a public sidewalk where an injury has occurred" ( Boege , 241 AD2d at 600 ; see Ishkanian v. City of Troy , 175 AD2d 464, 464 [3d Dept 1991] ). "Liability will be imposed, however, where it is shown that the sidewalk was constructed in a special manner for the benefit of the abutting owner, when the abutting owner affirmatively caused the defect or negligently constructed or repaired the sidewalk, or where a statute, ordinance or municipal charter charges an abutting landowner with the duty to maintain and repair a public sidewalk and provides that a breach of that duty will result in liability" ( Boege , 241 AD2d at 600 ; see Stewart v Town of Waterford , 152 AD2d 837, 838 [3d Dept 1989] ). Here, only the third element is tenable.
While the Code § 165–5 does transfer the duty to abutting landowners, the Court agrees with Defendant CHS that it does not transfer liability to abutting landowners. There is no express transfer of liability for a defect causing a pedestrian an injury. The legislative intent appears to be penal in nature, as the penalty for violating this section is a penal law violation under the Code § 165–6—not for civil liability. There is no evidence in the Code that there is any civil liability for personal injuries. Therefore, Defendant CHS has established its prima facie entitlement to summary judgment. ( Alvarez , 68 NY2d at 324 ; Winegrad , 64 NY2d at 851 ; Zuckerman , 49 NY2d at 557.)
The burden shifts to Plaintiff to raise a question of fact or credibility, which he fails to do so. (See Zuckerman , 49 NY2d at 562.) Plaintiff admits that the Code § 165–5 does not transfer liability to Defendant CHS or abutting landowners. Rather, Plaintiff argues that the deed establishes Defendant CHS owns the sidewalk where the subject accident took place. Plaintiff also argues that the lease agreement established that Defendant CHS "entirely displaced" Defendant Maya and Tango Café, therefore he is liable for the subject accident. Plaintiff argues that a landowner cannot simply avoid liability in the manner that Defendant CHS is doing so.
Defendant CHS submits a reply, citing to Boege wherein the trial court and Appellate Division, Third Department, rejected the use of the deed on the grounds that it was insufficient to raise a question of fact because "title to the land under the sidewalk is not the determinative issue" ( Boege , 241 AD2d at 601 ; citing Stewart , 152 AD2d at 838 ). While the Court finds that the deed is admissible in opposition to the motion, the Court agrees with Defendant CHS that Plaintiff misplaces his reliance on the deed as the plaintiff did in Boege ; the issue here is not ownership but the duty to maintain the sidewalk and the liability for breaching such duty. This onus appears on the municipality, which has no liability in this matter due to a lack prior written notice. Plaintiff's argument that Defendant CHS "entirely displaces" a leasee in the lease is without merit, as while Defendant CHS did exculpable the leasee, that is only in the situation where they are charged with liability in the first place—a situation we do not arrive to herein.
The Court has searched the record and finds that Plaintiff has not raised a question of fact or credibility warranting the denial of summary judgment in favor of Defendant CHS.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendant Maya and Tango Café's motion is GRANTED , and any claims asserted against these Defendants are DISMISSED in their entirety; and it is further
ORDERED that Defendant Village's motion is GRANTED , and any claims asserted against this Defendant is DISMISSED in their entirety; and it is further
ORDERED that Defendant CHS's motion is GRANTED , and any claims asserted against this Defendant is DISMISSED in their entirety; and it is further
ORDERED that the complaint is DISMISSED , and all relief requested therein as DENIED in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
1) Defendant Maya's notice of motion, dated February 23, 2017; affidavit in support of motion for summary judgment, of Emilio Maya, dated February 17, 2017; revised affidavit of Richard Levy, Esq., with annexed exhibits, dated February 28, 2017; memorandum of law, dated February 24, 2017;
2) Defendant Village's notice of motion, dated February 27, 2017; attorney's affirmation of Alana R. Bartley, Esq., with annexed exhibits (including Fanelli and Mayone affidavit), dated February 27, 2017; memorandum of law, dated February 27, 2017;
3) Defendant CHS's notice of motion, dated March 3, 2017; Attorney affirmation of Adam T. Mandell, Esq., with annexed exhibits, dated March 3, 2017; memorandum of law in support of motion, dated March 3, 2017; affidavit of Stephen Jones, dated February 24, 2017;
4) Attorney affirmation in opposition to Defendant Maya, of Adam T. Mandell, Esq., dated March 3, 2017; attorney affirmation in opposition to Defendant Village, of Adam T. Mandell, Esq., dated March 3, 2017;
5) Affirmation in opposition of Jeff Brody, Esq., with annexed exhibits, dated March 23, 2017; and
6) Reply affirmation of Adam T. Mandell, Esq., dated April 4, 2017.