Opinion
# 2018-045-026 Claim No. 125189 Motion No. M-90637
07-06-2018
LISA JOHNSON-HEWITT v. THE STATE OF NEW YORK
Blyer & Kurland, PC By: Steven R. Blyer, Esq. Hon. Barbara D. Underwood, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Defendant's summary judgment motion based on pedestrian outside of crosswalk.
Case information
| UID: | 2018-045-026 |
| Claimant(s): | LISA JOHNSON-HEWITT |
| Claimant short name: | HEWITT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125189 |
| Motion number(s): | M-90637 |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Blyer & Kurland, PC By: Steven R. Blyer, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 6, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-L; Claimant's Affirmation in Opposition with annexed Exhibits A-B; and Defendant's Affirmation in Further Support with annexed Exhibit A.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 and Highway Law § 58 seeking an order granting summary judgment in its favor and dismissing the claim. Claimant, Lisa Johnson-Hewitt, opposes the motion.
The subject claim arose on December 20, 2012 at approximately 8:40 a.m., when claimant, a pedestrian, was crossing Sunrise Highway, at its intersection with Horton Avenue in the Village of Lynbrook, Nassau County. At that time claimant was traversing Sunrise Highway in a southernly direction when her foot got caught in a defective condition which caused her to lose her balance. She was then struck by a motor vehicle making a left turn onto Sunrise Highway in order to travel in an eastbound direction.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
At her deposition claimant testified that she was crossing Sunrise Highway from the north side of Sunrise Highway to the south side of Sunrise Highway at its intersection with Horton Avenue. Claimant crossed on the eastern side of Horton Avenue even though there was no crosswalk at that location. Claimant had traveled this route to her job at Sunrise Volkswagon for a year prior to the accident. Claimant explained that she waited for the light on Horton Avenue to turn green before she started to cross Sunrise Highway. Claimant made it to the median of Sunrise Highway and proceeded to cross the remainder of Sunrise Highway when her foot went down and she lost her balance. Claimant described her foot as having twisted, "like losing my balance, like I stepped in a hole." When she tried to regain her balance she was struck by a motor vehicle. Claimant stated that she was struck by the front driver's side of a pickup truck. Claimant testified that she never noticed the hole in the street prior to her accident. She stated that she walked with her head "straight up" and would not look at the ground. She crossed Sunrise Highway at the same location twice a day approximately three times a week for a year prior to the accident. Claimant had seen motor vehicles make the left turn from Horton Avenue onto Sunrise Highway at times prior to her accident.
Claimant drew dotted lines across photographs marked as defendant's exhibit A and F at her deposition. The dotted lines represent the route she took across Sunrise Highway prior to her accident. Claimant took a diagonal path across the southern portion of Sunrise Highway. Defendant's exhibits A and B, marked at her deposition, are photographs which show a marked crosswalk on the western side of Horton Avenue crossing Sunrise Highway. There is no marked crosswalk on the eastern side of Horton Avenue crossing Sunrise Highway. Claimant crossed Sunrise Highway on the eastern side of Sunrise Highway. Defendant's exhibits C, marked at her deposition, is a photograph which shows a "use crosswalk" sign located at the northeast corner of Sunrise Highway and Horton Avenue with an arrow pointing to the western side of Horton Avenue. Defendant's exhibit H, marked at her deposition, is a photograph which shows a "use crosswalk" sign located at the southeast corner of Sunrise Highway and Horton Avenue with an arrow pointing to the western side of Horton Avenue.
Claimant stated in her affidavit that just prior to the accident she saw the motor vehicle that would strike her a few seconds later. The motor vehicle was to her right and a little behind her. The vehicle was about 20 feet away and turning onto Sunrise Highway heading eastbound at about 5-7 miles per hour. The front of the vehicle was straddling the left and middle lane of Sunrise Highway. When claimant first saw the vehicle it was her intention to stop walking and let the vehicle pass south of her. She clarified that the vehicle would be in the middle and right lane. Claimant stated that her next step went into a pothole and she stumbled forward moving in the direction of the middle lane which was then partially occupied by the vehicle. Claimant explained that she could not stop her body from moving forward as her momentum carried her into a more southerly direction where she stumbled into the front left (driver's) side of the vehicle. Claimant contends that had it not been for the pothole she would have been able to let the vehicle pass in front of herself.
Mihal Drakos, the driver of the motor vehicle which struck claimant, was also deposed in this matter. At the time of the accident claimant was operating his vehicle traveling south on Horton Avenue when he attempted to make a left turn to travel in an easterly direction on Sunrise Highway. He stated that the traffic light was green on Horton Avenue and he turned left onto Sunrise Highway. He was traveling at about 10 miles per hour when he made the left turn. He explained that the sun blinded him as he made the left turn. He did not see claimant and just heard a "boom" as well as felt an impact.
Mark Militello, New York State Department of Transportation (DOT) Highway Maintenance Supervisor II, was deposed in this case. At the time of the accident he oversaw the maintenance crews for the subject portion of Sunrise Highway. When shown a photograph of the defective condition in the street, Mr. Militello stated it would not require immediate repair. He described the condition as a simple crack which did not warrant a repair. He stated that he had never had a crack that small called into his office for a repair. Mr. Militello explained that in addition to making the roadway safe for vehicular traffic his office maintains the crosswalks for pedestrian traffic.
Mr. Militello stated that DOT trucks would travel on Sunrise Highway between one and five times a week looking for defects in the roadway. Mr. Militello asserted that even if a citizen called in a complaint regarding the defect in question he would not have repaired it because it did not pose a danger to motorists.
Defendant seeks summary judgment on three grounds: the pothole was not the proximate cause of the accident; the State owed no duty to claimant given the location of the pothole; and Highway Law § 58 exempts the State from liability.
In regard to defendant's first argument, claimant has raised a triable issue of fact in her affidavit as to whether the pothole was a substantial factor in causing claimant's injury.
Defendant also argues that the State had no duty to make the location of the accident reasonably safe for pedestrians.
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). The duty of keeping the roads in repair does "not vary with the status of the person who uses them but, rather with the foreseeability of their use and the possibility of injury resulting therefrom" (Basso v Miller, 40 NY2d 233, 241 [1976]). The duty to provide pedestrians with a reasonably safe place to travel extends to the foreseeable uses of a roadway by a pedestrian. However no liability arises where the injured pedestrian's presence is not reasonably foreseeable and not every use of a roadway by a pedestrian is within the scope of the State's duty (Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000], Perez v State of New York, UID No. 2009-040-081 [Ct Cl, McCarthy, J., October 28, 2009]).
Defendant satisfied its duty to provide pedestrians with a reasonably safe place to travel by its provision of a designated crosswalk along with signs clearly directing pedestrians to use the crosswalk on the west side of Sunrise Highway (Omer v Rodriguez, 294 AD2d 202 [1st Dept 2002]). Additionally, it was not reasonably foreseeable that a pedestrian would cross the southern portion of Sunrise Highway in a diagonal route taking the pedestrian outside of the intersection. Thus, defendant's duty to provide pedestrians with a reasonably safe place to travel does not extend to the facts as presented herein (Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000].
Assuming arguendo that defendant owed a duty in this case, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]).
Claimant has failed to establish that defendant either created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Mr. Militello, a Highway Maintenance Supervisor, stated that his office did not receive any complaints regarding the defect in question. He explained that DOT trucks would travel along Sunrise Highway on a regular basis checking for roadway defects that warranted repairs however the defect in question was never reported as one needing repair. Mr. Militello described the condition as a simple crack which did not warrant a repair. This type of routine inspection also does not constitute the kind of specific inspection, focused upon the area in question, required to justify the finding of constructive notice (Brzytwa-Wojdat v Town of Rockland, Sullivan County, 256 AD2d 873, 874 [3d Dept 1998]). Although the area is a highly trafficked area which would increase the likelihood of potholes, a "general awareness" that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). Additionally, the Court notes that there were no previous complaints regarding a defective condition and no records of prior accidents involving the defective condition of the roadway.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
The Court did not reach the issues raised regarding Highway Law § 58 given its ruling on the merits.
July 6, 2018
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims