Opinion
763 CA 19-01591
02-05-2021
Gregory Roy HORST, Plaintiff-Appellant, v. CITY OF SYRACUSE, Defendant-Respondent.
SUGARMAN LAW FIRM, LLP, SYRACUSE (CORY J. SCHOONMAKER OF COUNSEL), FOR PLAINTIFF-APPELLANT. KRISTEN E. SMITH, CORPORATION COUNSEL, SYRACUSE (SARAH KNICKERBOCKER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (CORY J. SCHOONMAKER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
KRISTEN E. SMITH, CORPORATION COUNSEL, SYRACUSE (SARAH KNICKERBOCKER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff commenced this negligence action seeking to recover damages for injuries he sustained when he was thrown from his bicycle after riding it into a pavement cutout in a street, which was located along the curb at the base of a sidewalk ramp and was concealed at that time by a puddle. Plaintiff appeals from an order granting the motion of defendant seeking summary judgment dismissing the complaint on the ground of lack of prior written notice. We reverse.
"Prior written notice of a defective or unsafe condition of a road or [sidewalk] is a condition precedent to an action against a municipality that has enacted a prior notification law" ( Hawley v. Town of Ovid , 108 A.D.3d 1034, 1034-1035, 969 N.Y.S.2d 641 [4th Dept. 2013] ; see Gorman v. Town of Huntington , 12 N.Y.3d 275, 279, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009] ; Amabile v. City of Buffalo , 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ). With respect to the parties’ respective burdens on a municipal defendant's motion for summary judgment asserting the absence of the subject condition precedent, the Court of Appeals has made clear that "[w]here the [municipality] establishes that it lacked prior written notice under [a prior notification law], the burden shifts to the plaintiff to demonstrate [the existence of a triable issue of fact as to the requisite written notice or] the applicability of one of [the] two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" ( Yarborough v. City of New York , 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ; accord Groninger v. Village of Mamaroneck , 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011] ).
Plaintiff nonetheless contends that defendant, in order to meet its initial burden on the motion, had to establish both that it did not receive proper written notice and , because plaintiff so alleged in the pleadings, that it did not create the defect. Plaintiff's contention relies on a line of Second Department cases (see e.g. Nigro v. Village of Mamaroneck , 184 A.D.3d 842, 843, 124 N.Y.S.3d 549 [2d Dept. 2020] ; Beiner v. Village of Scarsdale , 149 A.D.3d 679, 680, 51 N.Y.S.3d 578 [2d Dept. 2017] ; Hill v. Fence Man, Inc. , 78 A.D.3d 1002, 1004, 912 N.Y.S.2d 93 [2d Dept. 2010] ), which we decline to follow. The broader burden endorsed by the Second Department in such circumstances is contrary to Yarborough and its progeny (see generally Kenneth L. Gartner, Pothole Laws, Appellate Courts, and Judicial Drift , 19 J App Prac & Process 173, 184-185 [2018] ), and contrary to our current case law applying standard Yarborough burden-shifting even where the plaintiff alleges in the pleadings that the municipality created the dangerous condition (see Benson v. City of Tonawanda , 114 A.D.3d 1262, 1262-1263, 980 N.Y.S.2d 683 [4th Dept. 2014] ).
In addition, principles of summary judgment do not support the Second Department's approach. It is well established that "[a] party moving for summary judgment must demonstrate that ‘the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment’ in the moving party's favor" ( Jacobsen v. New York City Health & Hosps. Corp. , 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014], quoting CPLR 3212 [b] ; see Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Where, as here, a municipality moves for summary judgment on its defense asserting the lack of written notice as a condition precedent to suit, the municipality sufficiently establishes that statutorily created defense by demonstrating, in the absence of any further requirement under the applicable prior notification law, that it did not receive prior written notice in the manner prescribed by the law (see Groninger , 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Gorman , 12 N.Y.3d at 279-280, 879 N.Y.S.2d 379, 907 N.E.2d 292 ). If the municipality establishes its prima facie entitlement to summary judgment based on the lack of prior written notice, "the burden shifts to the plaintiff to come forward with evidentiary proof in admissible form demonstrating ‘the existence of material issues of fact which require a trial of the action’ " ( Hoover v. New Holland N. Am., Inc. , 23 N.Y.3d 41, 56, 988 N.Y.S.2d 543, 11 N.E.3d 693 [2014] ). Such material issues of fact could relate to receipt of the requisite written notice itself or to the applicability of either of the judicially recognized exceptions to the statutory protection afforded to the municipality by the prior notification law (see Groninger , 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Yarborough , 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see generally Amabile , 93 N.Y.2d at 474-476, 693 N.Y.S.2d 77, 715 N.E.2d 104 ).
Contrary to plaintiff's contention, we did not deviate from our case law and adopt the Second Department's approach in Beagle v. City of Buffalo, 178 A.D.3d 1363, 116 N.Y.S.3d 122 (4th Dept. 2019). In that case, we merely determined on the record before us that the municipal defendant's own submissions in support of its motion for summary judgment raised a triable issue of fact whether it affirmatively created a dangerous condition ( id. at 1366, 116 N.Y.S.3d 122 ). Our determination that a municipal defendant's own papers defeated its entitlement to summary judgment by raising a triable issue of fact as to its affirmative creation of the alleged defect, thereby requiring denial of the motion (see CPLR 3212 [b] ), is not the same as holding that a municipal defendant must, in the first instance as a matter of law, establish both that it did not receive proper written notice and that it did not create the defect when a plaintiff so alleges in the pleadings.
Applying the applicable legal standard, we conclude that defendant met its initial burden on the motion. Section 8-115 (1) of the Charter of the City of Syracuse states, in relevant part, that "[n]o civil action shall be maintained against the city for damages or injuries to person or property sustained in consequence of any street ... being defective, out of repair, unsafe, dangerous or obstructed unless previous to the occurrence resulting in such damages or injury written notice of the defective, unsafe, dangerous, obstructed condition of said street ... was actually given to the commissioner of public works and that there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of." Here, defendant met its initial burden by submitting the affidavit of its commissioner of public works establishing that he did not receive prior written notice of the allegedly dangerous or defective condition in the street as required by its prior notification law (see Simpson v. City of Syracuse , 147 A.D.3d 1336, 1337, 46 N.Y.S.3d 347 [4th Dept. 2017] ; Duffel v. City of Syracuse , 103 A.D.3d 1235, 1235, 958 N.Y.S.2d 916 [4th Dept. 2013] ; Hall v. City of Syracuse , 275 A.D.2d 1022, 1023, 713 N.Y.S.2d 384 [4th Dept. 2000] ; see generally Groninger , 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ). As a result, the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact as to the requisite written notice or, as relevant here, the applicability of the affirmative negligence exception (see Groninger , 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Yarborough , 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Simpson , 147 A.D.3d at 1337, 46 N.Y.S.3d 347 ).
We conclude that plaintiff failed to meet its burden of demonstrating the existence of a triable issue of fact as to the requisite written notice. It is well established that " ‘[p]rior written notice provisions, enacted in derogation of common law, are always strictly construed’ " ( Gorman , 12 N.Y.3d at 279, 879 N.Y.S.2d 379, 907 N.E.2d 292, quoting Poirier v. City of Schenectady , 85 N.Y.2d 310, 313, 624 N.Y.S.2d 555, 648 N.E.2d 1318 [1995] ; see Doremus v. Incorporated Vil. of Lynbrook , 18 N.Y.2d 362, 366, 275 N.Y.S.2d 505, 222 N.E.2d 376 [1966] ). Thus, not "every written complaint to a municipal agency necessarily satisfies the strict requirements of prior written notice"; nor is it true that "any agency responsible for fixing the defect that keeps a record of such complaints has, ipso facto, qualified as a proper recipient of such notice" ( Gorman , 12 N.Y.3d at 279, 879 N.Y.S.2d 379, 907 N.E.2d 292 ). "Simply put, whereas a written notice of defect is a condition precedent to suit, a written request to any municipal agent other than a statutory designee that a defect be repaired is not" sufficient to comply with the strict requirements of the law ( id. ). Similarly, "a verbal or telephonic communication to a municipal body that is reduced to writing [does not] satisfy a prior written notice requirement" ( id. ; see Hernandez v. City of Syracuse , 164 A.D.3d 1609, 1609, 85 N.Y.S.3d 293 [4th Dept. 2018] ; Tracy v. City of Buffalo , 158 A.D.3d 1094, 1094, 68 N.Y.S.3d 618 [4th Dept. 2018] ).
Here, plaintiff's submissions raised the possibility that a complaint about a defect at the subject location submitted to defendant two days prior to plaintiff's accident via its CityLine citizen reporting system was submitted online rather than by telephone (cf. Hernandez , 164 A.D.3d at 1609, 85 N.Y.S.3d 293 ) and, thus, there is an issue of fact whether that complaint constituted the requisite "written notice" under the prior notification law (Syracuse City Charter § 8-115 [1]; see Van Wageningen v. City of Ithaca , 168 A.D.3d 1266, 1267, 90 N.Y.S.3d 715 [3d Dept. 2019] ; cf. Wolin v. Town of N. Hempstead , 129 A.D.3d 833, 835, 11 N.Y.S.3d 627 [2d Dept. 2015] ). Nonetheless, the prior notification law, which must be strictly construed, also requires that written notice be "actually given to the commissioner of public works" (Syracuse City Charter § 8-115 [1]), and plaintiff failed to raise a triable issue of fact in that regard. Inasmuch as the deposition testimony of defendant's employees submitted by plaintiff established that CityLine complaints were simply received by complaint investigators and routed through a computer system to the appropriate department, and that such complaints were stored solely in the electronic file on the computer system, there is no indication in the record that such complaints were actually given to the commissioner of public works as required by the prior notification law (see Gorman , 12 N.Y.3d at 279-280, 879 N.Y.S.2d 379, 907 N.E.2d 292 ). Moreover, the only reasonable inference to be drawn from this record is that CityLine complaints were maintained in an electronic format and were separate from the written notices kept in the office of the commissioner of public works. Plaintiff nonetheless asserts that there is a material issue of fact whether CityLine complaints were actually given to the commissioner of public works because such complaints were submitted to the department that he oversees and he may have had access to the those complaints through the computer system. We conclude that those assertions are insufficient to defeat defendant's motion for summary judgment because the applicable law requires that written notice be actually given to the commissioner of public works, not just the department he oversees (cf. Van Wageningen , 168 A.D.3d at 1267, 90 N.Y.S.3d 715 ), and the suggestion that he may have had access to the CityLine complaints is speculative (see Wisnowski v. City of Syracuse , 213 A.D.2d 1069, 1070, 624 N.Y.S.2d 329 [4th Dept. 1995] ; see also Hall , 275 A.D.2d at 1023, 713 N.Y.S.2d 384 ).
We agree with plaintiff, however, that he met his burden with respect to the affirmative negligence exception by raising a triable issue of fact whether defendant "affirmatively created the defect through an act of negligence ... ‘that immediately result[ed] in the existence of a dangerous condition’ " ( Yarborough , 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see Simpson , 147 A.D.3d at 1337, 46 N.Y.S.3d 347 ). Here, plaintiff submitted the deposition of defendant's public works superintendent, who testified that defendant was solely responsible for repairing potholes and did not subcontract for that work, but that a contractor was used for sidewalk, ramp, and curb work. If the contractor was putting a curb in, it would perform a cut in the street. Upon viewing the photograph of the subject defect, the superintendent testified that the defect was not a pothole and, instead, was a hole deliberately created as part of work on the curb. The photograph of the pavement cutout, also submitted by plaintiff in opposition to the motion, is consistent with the superintendent's assessment. Inasmuch as the superintendent testified that defendant did not perform that type of work, but that the cut in the street was consistent with the curb work that the contractor performed on defendant's behalf, there is circumstantial evidence that defendant created the defect through its contractor's actions and, thus, a triable issue of fact whether the affirmative negligence exception applies (see Santelises v. Town of Huntington , 124 A.D.3d 863, 865-866, 2 N.Y.S.3d 574 [2d Dept. 2015] ; Tumminia v. Cruz Constr. Corp. , 41 A.D.3d 585, 586, 837 N.Y.S.2d 332 [2d Dept. 2007] ; Smith v. City of Syracuse , 298 A.D.2d 842, 843, 747 N.Y.S.2d 876 [4th Dept. 2002] ; see generally Wittorf v. City of New York , 23 N.Y.3d 473, 479, 991 N.Y.S.2d 578, 15 N.E.3d 333 [2014] ; Steuer v. Town of Amherst , 300 A.D.2d 1104, 1105, 753 N.Y.S.2d 257 [4th Dept. 2002] ). We reject defendant's contention that plaintiff is improperly relying on speculation in that regard. The superintendent's testimony that the subject defect was deliberately created by cutting the street as part of curb work and that the contractor performed that type of work on behalf of defendant is based on his personal knowledge and professional expertise, not speculation (see Smith , 298 A.D.2d at 843, 747 N.Y.S.2d 876 ), and plaintiff is entitled under these circumstances to rely on circumstantial evidence that an agent of defendant created the defect (see Guimond v. Village of Keeseville , 113 A.D.3d 895, 898, 978 N.Y.S.2d 431 [3d Dept. 2014] ). We thus conclude that the court erred in granting defendant's motion.