Opinion
# 2021-053-516 Claim No. 131698 Motion No. M-96347
06-02-2021
LOUISE HUBER and MICHAEL HUBER v. STATE OF NEW YORK
OSBORN, REED & BURKE, LLP BY: Kevin D. Walsh, Esq. HON. LETITIA JAMES New York State Attorney General BY: Thomas G. Ramsay, Esq. Assistant Attorney General
Synopsis
The State's motion for summary judgment is denied in a claim for injuries that resulted when claimant tripped and fell on a portion of a sign protruding from the sidewalk area. Issues of fact exist as to whether Highway Law 46 obligated the Village of Williamsville to maintain that area where the incident occurred. The State's motion to strike certain injuries as beyond that alleged in the claim is also denied.
Case information
| UID: | 2021-053-516 |
| Claimant(s): | LOUISE HUBER and MICHAEL HUBER |
| Claimant short name: | HUBER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131698 |
| Motion number(s): | M-96347 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | OSBORN, REED & BURKE, LLP BY: Kevin D. Walsh, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Thomas G. Ramsay, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 2, 2021 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Louise Huber alleges in claim no. 131698 that she sustained personal injuries on July 14, 2016 when she tripped and fell on a portion of a sign protruding from the sidewalk and/or right of way along Main Street, Route 5, at or near 5601 Main Street, in the Town of Amherst, County of Erie. Defendant moves for summary judgment dismissing the claim pursuant to Section 46 of the Highway Law, Sections 3211 (a) (2), 3211 (a) (7) and 3212 of the Civil Practice Law and Rules (CPLR) and Section 11 (b) of the Court of Claims Act. In the alternative, defendant moves to strike certain matters from claimants' bill of particulars not included in the claim. Claimants oppose defendant's motion.
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).
Defendant moves for summary judgment contending that the claim fails to identify the place where the claim arose with the specificity required by Court of Claims Act § 11 (b), that the maintenance of the place where the claim arose was the statutory responsibility of the Village of Williamsville and, in the alternative, that the Court should strike injuries from claimants' verified bill of particulars that were not pleaded in the claim. Each of these arguments will be addressed separately.
Pursuant to Court of Claims Act § 11 (b), a claim "shall state the time when and place where such claim arose, the nature of same, the items of damages or injuries claimed to have been sustained and ... the total sum claimed." The failure to comply with the jurisdictional pleading requirements of Court of Claims Act § 11 (b), amounts to a fatal jurisdictional defect which requires dismissal of the claim (Lepkowski v State of New York, 1 NY3d 201 [2003]; Kolnacki v State of New York, 8 NY3d 277 [2007], rearg denied 8 NY3d 994 [2007]). " 'What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable [defendant] to be able to investigate the claim promptly and to ascertain its liability under the circumstances' " (Deep v State of New York, 56 AD3d 1260,1260-1261 [4th Dept 2008] quoting Heisler v State of New York, 78 AD2d 767, 767 [1980]). Defendants are not required, however, "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, supra at 208).
Defendant alleges that the claim fails to include an adequate description of the location of the incident and that, accordingly, the claim is jurisdictionally defective and must be dismissed. Defendant raised this argument as the fourth affirmative defense in its answer (Defendant's Exhibit B). According to the claim (Defendant's Exhibit A, ¶ 2), claimant fell and was injured while walking eastbound along Main Street, Route 5, at or near 5601 Main Street, in the Town of Amherst as the result of a portion of a sign protruding from the sidewalk and/or the right of way. In the Bill of Particulars (Defendant's Exhibit C, ¶ 5), it is alleged that the "incident occurred at or near 5601 Main Street in the Town of Amherst, specifically in the area between the sidewalk and Main Street, Route 5, on the red brick portion between the sidewalk and the curbing of the area."
At claimant Louise Huber's deposition conducted on October 1, 2020, a photograph taken by her was marked as an exhibit (Defendant's Exhibit D). Claimant acknowledged that this photograph shows the condition of the brick surface in the area where she tripped (see excerpts from claimant's deposition, Defendant's Exhibit E). Defendant contends that the bill of particulars, claimant's deposition testimony and the photograph produced at her deposition all establish that the incident occurred in the snow storage facility area between the curb and the sidewalk and not on the sidewalk as pleaded in the claim (see also ¶ 5 of the affidavit of Nickolas J. Kinderman, P.E., North Erie Resident Engineer, New York State Department of Transportation).
While the claim does not identify the exact area of the incident, only as it being "the sidewalk and/or right of way", the claim does include the address on Main Street in the Village of Williamsville where the incident occurred and describes the incident as being a trip and fall on a portion of a sign protruding from the sidewalk and/or right of way. Moreover, in response to a FOIL request, the New York State Department of Transportation (NYSDOT) produced a service request detail form dated July 25, 2016, a few days after the incident, to pull sign bases at 5601 Main Street (Claimants' Exhibit G). Counsel for defendant admits in his reply affirmation that the State removed the stub from the ground but alleges that the removal was done at the request of the Village of Williamsville.
The Court concludes that the information stated in the claim was sufficient to allow defendant to conduct a prompt investigation in order to ascertain its potential liability (see Gang v New York State, 177 AD3d 1300 [4th Dept 2019]; Deep v State of New York, supra at 1261). As a result, that portion of defendant's motion to dismiss the claim which is based on the grounds that the claim fails to sufficiently describe the area where the incident occurred is denied.
Highway Law § 46Defendant argues that the Village of Williamsville was responsible for maintenance in the snow storage area between the roadway pavement and the sidewalk along Main Street in the Village of Williamsville where the incident occurred. This argument was pled by defendant in its third affirmative defense (Defendant's Exhibit B). Pursuant to section 46 of the Highway Law, upon completion of construction of a State Highway which passes through a village, the State retains maintenance jurisdiction of the pavement of the highway, but the village retains maintenance jurisdiction of the sidewalks, curbs, paved gutters, conduits, facilities and appurtenances.
Defendant argues that the present claim is similar to Roemer v State of New York, 174 AD3d 931 [2d Dept 2019], in which the claimant was injured when he tripped and fell on a similar protruding metal base or stub of a broken highway sign post embedded in a sidewalk. In affirming the decision of the Hon. Judge Scuccimarra of the Court of Claims, the Second Department agreed "that the claimant failed to state a legally cognizable cause of action against the State" as the duty to maintain the subject sidewalk in a reasonably safe condition was upon the Village pursuant to Highway Law § 46. Similarly, in Kahm v State of New York, UID No. 2004-034-620 [Ct Cl, Hudson, J., Dec. 27, 2004], the State was granted summary judgment under Highway Law § 46 where the claimant tripped on a brick paver located in the area between the curb of the roadway and the five-foot width of cement that adjoined the stores along East Main Street in the Village of Springville, New York.
In opposition to defendant's motion, claimants rely in large part on the deposition testimony of William Dockery, employed by the NYSDOT as an Associate Engineer (Claimants' exhibit H, pp. 22-23). Mr. Dockery testified that in the period of time between acceptance of the first reconstruction project on Main Street in Williamsville, which was accepted by the State on February 9, 1996, up until the beginning of the second reconstruction project in 2018, it was the responsibility of the NYSDOT to maintain the signs in the right of way which would include the area of the red brick pavers in the snow storage area (Exhibit H, pp. 61-65). In fact, at the request of the Village of Williamsville made on July 5, 2016, the State removed the protruding signpost (Claimants' Exhibit G). Further, claimants argue that photographs maintained by the State show that the protruding signpost existed at least a month or more before the accident, providing the State notice of its existence (see photographs attached as part of Claimants' Exhibit H).
Claimants' counsel incorrectly refers to William Dockery in his opposing affirmation as William Dockney.
Attached to defendant's motion papers is an affidavit of Nickolas J. Kinderman, P.E. Mr. Kinderman is employed by the NYSDOT as the North Erie Engineer. As such, Mr. Kinderman is familiar with the maintenance jurisdiction of the highways in Erie County. According to Mr. Kinderman's affidavit, the area where the protruding signpost was located was the snow storage facility area and that the Village of Williamsville was and is responsible for maintenance in the snow storage facility area pursuant to Highway Law § 46. Mr. Kinderman further states that to the extent that the deposition testimony of his assistant, William Dockery, indicates otherwise, that Mr. Dockery's deposition testimony is in error.
After careful consideration of the evidence presented, the Court concludes that the Defendant has failed to establish its entitlement to summary judgment as numerous questions of fact exist as to whether the State or the Village had the responsibility for maintenance in the storage facility area along Main Street in the Village of Williamsville.
Motion to Strike
In the event that its motion to dismiss the claim is denied, defendant moves to strike those injuries listed in claimants' bill of particulars which were not pled in claimants' claim. Pursuant to Court of Claims Act § 11 (b), the claim shall state " the items of damage or injuries claimed to have been sustained..." A natural reading of the statute requires claimant to specify the injuries for which the claimant seeks compensation (Donahue v State of New York, 174 AD3d 1549 [4th Dept 2019]). Here, claimant alleges in the claim that she "sustained injuries to her right leg, right arm and shoulder, right hip, head and back" and "injuries to her neck, right hip, right leg, shoulder and back" (Defendant's Exhibit A, ¶ ¶ 2 and 5). At paragraph 12 of the bill of particulars (Defendant's Exhibit C), claimant adds to her list of sustained injuries:
"(b) Marked rotation of the cecum and the ascending colon resulting in a flank hernia, which required laproscopic right hemicolonectomy for cecal volvulus;" and
"(c) A hernia along the left flank region, posterior to the oblique muscles, requiring open repair of the left flank incisional hernia on February 4, 2017 with hernia patch mesh placed into the partipineal space;"
Defendant argues that as the alleged injuries listed in paragraphs 12 (b) and (c) were not included in the claim, that these injuries should be stricken from claimants' bill of particulars. The Court disagrees.
In opposition to defendant's motion, claimants' counsel states that the bill of particulars was dated only four months after the claim and that defendant was provided with authorizations to obtain all of claimant's medical records. In addition, the bill of particulars was marked at claimant's deposition and the claimant was examined by defendant's counsel on her injuries, including those listed in paragraphs 12 (b) and (c) of the bill of particulars (see claimant's deposition transcript, Claimants' Exhibit I, pp. 48-63). The Court concludes that claimant has sufficiently specified the injuries claimed and that the defendant is not prejudiced by the failure to include the injuries in paragraph 12 (b) and (c) of her bill of particulars in the claim (Donahue v State of New York, supra at 1551).
Based on the foregoing, defendant's motion no. M-96347 is denied in its entirety.
June 2, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affirmation of Assistant Attorney General Thomas G. Ramsay affirmed December 18, 2020, with annexed Exhibits A-E; 2. Supporting affidavit of Nickolas J. Kinderman, P.E. sworn to December 16, 2020, with annexed Exhibit A; 3. Opposing affirmation of Kevin D. Walsh, Esq. affirmed March 8, 2021, with annexed Exhibits A-I; 4. Opposing affidavit of claimant Louise Huber sworn to March 10, 2021, with annexed Exhibits A-D; and 5. Reply affirmation of Assistant Attorney General Thomas G. Ramsay affirmed March 18, 2021.