Opinion
Index 53980/2016
03-29-2019
BRAULIA GUTIERREZ, Plaintiff, v. THE CITY OF YONKER, ALEY PALAL As Administratrix of the Estate of PAUL PALAL, and ALEY PALAL, Individually, Defendants.
Unpublished Opinion
Sequenee Nos. 2 & 3
DECISION & ORDER
CHARLES D. WOOD, Justice.
New York State Courts Electronic Filing ("NYSCEF") Documents Numbers 40 through 78, were read in connection with separate motions for summary judgment pursuant to CPLR 3212, to dismiss the complaint and all cross claims as against defendant Aley Palai, as Administratrix of the Estate of Paul Palal, and Aley Palal, Individually, ("Palal") (Seq 2); and the City of Yonkers ("Yonkers") (Seq 3).
Plaintiff commenced this action against defendants to recover damages for personal injuries allegedly sustained by plaintiff on February 28, 2015, on the sidewalk in front of the building located at 82 Lawrence Street in Yonkers, as a result of being caused to slip and fall on a combination of a broken, cracked, uneven sidewalk, and the failure to properly remove snow and/or ice contributed to plaintiffs accident.
NOW, upon the foregoing papers, the motion is decided as follows: It is well settled that a proponent of a summary judgment motion must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 A.D.3d 684, 686-687 [2d Dept 2007]; Rea v Gallagher, 31 A.D.3d 731 [2d Dept 2007]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the motion papers (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 [1986]; Jakabovics v Rosenberg, 49 A.D.3d 695 [2d Dept 2008]; Menzel v Plotkin, 202 A.D.2d 558, 558-559 [2d Dept 1994]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]; Khan v Nelson, 68 A.D.3d 1062 [2d Dept 2009]). In deciding a motion for summary judgment, the court must view the evidence presented "in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" (Yelder v Walters, 64 A.D.3d 762, 767 [2d Dept 2009]; Nicklas v Tedlen Realty Corp., 305 A.D.2d 385, 386 [2d Dept 2003]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to existence of a triable issue (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). Here, Palal argues that plaintiff has set forth different theories of the cause of her fall. First in the Notice of Claim, she claims that she fell from acculumating snow and or ice on the sidewalk. In her Verified Bill of Parivuclars, she states that she fell from both tripping over a defective /cracked/uneven sidewalk condition, and slipping upon unremoved ice and/or snow. Plaintiff further testified that she took a photograph of the accident scene the day after her fall, that her fall occured in the area where the seam between the two sidewalk slabs is seen in the photograph, she tripped before she slipped, and she couldn't see the uneven area where th slabs abut one another on the evening of her fall because it was then covered with snow and ice.
In further support of their motion for summary judgment Palel offers an affidavit fro Steven Roberts, who has been qualified in both Federal and State Courts as an expert in the field of forensic meteorology. He asserts that the last significant storm activity was a week before the date of plaintiff's incident, when 3.5 snow and ice mix fell on February 21, 2015 continued into the morning of February 22nd, adding another .5 inches of newly fallen precipitation to untreated exterior surfaces. No precipitation fell on February 27, 2015 th before the incident. The accident day began with approximately 10 4 inches cover.
Palal argues that they were not negligent in discharging their duty to remove snow ice upon the sidewalk fronting their premises so as to keep same in a reasonably safe condition. But for the snow along the curb line, apparently resulting from prior street plowing activity entire sidewalk visible in plaintiffs relevant photograph has been cleared down concrete. In fact, they argue that the snow removal efforts undertaken by or on behalf prior to plaintiffs fall rendered the sidewalk safer and not more and not more hazardous than had the naturally occurring snowfall condition had it not been addressed
Aley Palal testified that her husband, who subsequently died on November 25 had owned the subject property at 82 Lawrence Street in Yonkers at the time of the accident.
Absent from the record is any competent evidence from a person with personal knowledge as to the actual snow removal efforts of Palal that were made on or near the the accident. Under these circumstance,, Palal failed to establish as a matter of law that its snow removal procedures for the subject accident location did not create the condition which caused plaintiffs injuries. An owner of real property is under no obligation to remove snow and ice that naturally accumulates upon the sidewalk that abuts his or her property, and liability will not result unless it is shown that the owner made the sidewalk more hazardous through negligent removal of the snow (Palopoli v City of New York, 305 A.D.2d 388, 388-89 [2d Dept 2003]). Thus, there is a question of fact as to Palal, as the owner of property abutting a public sidewalk will be held liable where it, or someone on its behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous (Rodriguez v City of Westchester, 138 A.D.3d 713, 716 [2d Dept 2016]). Accordingly, Palal's motion for summary judgment is denied.
Turning to the City's motion for summary judgment, generally, if a municipality has adopted a prior written notice law, it "cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" Forbes v City of New York, 85 A.D.3d 1106, 1107 [2d Dept 2011]). Once a municipality establishes that it adopted a prior written notice law and lacked prior written notice of a defect, "the burden shifts to the plaintiff to demonstrate the applicabiltty of one of the two recognized exceptions to the prior written notice requirement" (Hanover Ins. Co. v Town of Pawling, 94 A.D.3d 1055, 1056 [2d Dept 2012]).
The Second Department recently found that where the bill of particulars alleged that the municipality affirmatively created the dangerous condition which caused the accident, in order to establish its prima facie entitlement to judgment as a matter of law, the municipality had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect, prior to the burden shifting to plaintiff (McManus v Klein, 136 A.D.3d 700 [2d Dept 2016])."[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (McManus v Klein, supra).
The two exceptions to prior written notice are: "the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" (Forbes v City of New York, 85A.D.3d 1106, 1107). It must be noted that, "the affirmative" negligence exception [is] limited to work by the City that immediately results in the existence of a dangerous condition" (Oboler v City of New York, 8 N.Y.3d 888, 889-90 [2007]; Yarborough v City of New York, 10 N.Y.3d 726, 728 [2008]). Wear and tear and environmental factors are not an affirmative act of negligence (Smith v Town of Brookhaven, 45 A.D.3d 567, 568 [2d Dept 2007]). The special use exception can only be found "where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property" (Poirier v City of Schenectady, 85 N.Y.2d 310, 315 [1995]).
Also, "a telephonic complaint reduced to writing does not satisfy the requirement of prior written notice" (McCarthy v City of White Plains, 54 A.D.3d 828, 829-30 [2d Dept 2008]). Courts have repeatedly held that actual notice of an alleged hazardous condition does not obviate the requirement that the municipality be in receipt of written notice of said condition prior to the occurrence of the accident (Ferreira v County of Orange, 34 A.D.3d 724 [2d Dept 2006]). If plaintiff argues that there has been a recurrence of the alleged defect between the time it was allegedly repaired and the time of the alleged incident, "such recurrence does not abrogate the need for prior written notice" (McCarthy v City of White Plains, 54 A.D.3d at 830).
Here, the City offers the affidavit of Lori Tangredi, employed by the City of Yonkers as an Administrative Assistant to the Commissioner of the Department of Public Works. She has held this position since the summer of 2014. She conducted a search of the records maintained by the City Department of Public Works Commissioner's Office relative to roadways/sidewalks for any prior written notice concerning the subject sidewalk condition received on or before February 28, 2015, and found no such prior written notice records for that location. (City's Ex K). The City also points out that plaintiff does not contend that the City affirmatively created the alleged condition, and that plaintiff did not even address defendant's argument based on the City Code 103-1 that the duty to maintain the subject sidewalk lies exclusively with the adjoining property owner. However, while Yonkers City Code Si03-1 requires landowners to maintain sidewalks abutting their property in a safe condition, it does not impose tort liability upon them for injuries caused by a violation of that duty (Lagawo v Myers, 149 A.D.3d 1056, 1057 [2d Dept 2017]). Finally, Tangredi attested that the City does not even perform snow removal on sidewalks in front of private buildings.
In further support of its motion, the City relies on Section 244 of the Second Class Cities Law and, Section 24-11 of the Charter of the City of Yonkers provide prior written notice laws. The Charter provides in pertinent part that: (1) No civil action shall be maintained against the city for injury to person ...sustained in consequence of any street...sidewalk...or any portion of any of the foregoing being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the Commissioner of the Department of Public Works by certified or registered mail."
From this record, the City established its prima facie entitlement to judgment as a matter of law by demonstraing that it did not receive prior written notice of the snow and ice condition which caused the plaintiffs accident, as required by section 24-11 of the Charter of the City of Yonkers, and did not endeavor to clean the sidewalk of snow and ice, thus, there is no evidence in the record that the City affirmatively created the alleged defect (Rodriguez v Cty. of Westchester, 138 A.D.3d 713, 715 [2d Dept 2016]). In opposition, plaintiff raised no triable issue of fact as to any exception to the prior written notice requirement, namely, whether the City affirmatively created the alleged defect, or whether the defect was created by the City's special use of the property (Gonzalez v Town of Hempstead, 124 A.D.3d 719, 721 [2d Dept 2015]).
Further, plaintiff herself testified that she was unaware of any prior written notice of either the snow/ice or uneven sidewalk condition being given to the City of Yonkers. Not only is there an absence of prior written notice of the sidewalk's condition, but plaintiff has failed to allege and/or could not establish that either of the two recognized exceptions is applicable in this case. From this record, neither of the two exceptions is applicable in this case.
Finally, plaintiffs' contention that the summary judgment was premature is without merit, since they failed to offer an evidentiary basis to suggest that the discovery may lead to relevant evidence. There "hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery was an insufficient basis for denying the motion" (Conte v Frelen Assoc, LLC, 51 A.D.3d 620 [2d Dept. 2008]). The record shows that at the October 16, 2018 Compliance Conference before court attorney referee, counsel for the parties stipulated that all pre-trial discovery was completed or waived and that the matter was ready for trial.
All matters not specifically addressed are denied. This constitutes the Decision and Order of the court.
NOW, therefore, it is hereby
ORDERED, that the motion by Aley Palal As Administratrix of the Estate of Paul Palal and Aley Palal, Individually, for summary judgment (Seq 2) dismissing the complaint and all cross claims asserted against it is Denied; and it is further
ORDERED, that the motion by the City of Yonkers for summary judgment (Seq. 3) is Granted, and the Complaint is dismissed as against the City of Yonkers, and all cross claims against it are dismissed; and it is further
ORDERED, that the remaining parties shall appear for an existing scheduled conference in the Settlement Conference Part, Court Room 1600, Westchester County Courthouse, 111 Dr. Martin Luther King Jr. Blvd., White Plains, New Yark 10601, on at 9:15 AM.
The Clerk shall mark his records accordingly.