Opinion
No. 57905.
12-17-2014
Virginia KOCH, Plaintiff, v. VILLAGE OF LAKE GEORGE, Defendant.
McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Daniel J. Hogan of counsel), for plaintiff. Fitzgerald Morris Baker Firth, P.C., Glens Falls (Martin A. Cohen of counsel), for defendant.
McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Daniel J. Hogan of counsel), for plaintiff.
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Martin A. Cohen of counsel), for defendant.
Opinion
ROBERT J. MULLER, J.
This action is for personal injuries allegedly sustained by plaintiff on July 23, 2011 while walking upon a section of an asphalt sidewalk owned by defendant and identified as being somewhere on the south side of Mohican Street, approximately 20 to 25 feet east of its intersection with Cortland Street. Plaintiff alleges that she tripped and fell on a hazardous, defective and dangerous condition; namely, an uneven and sunken portion of the sidewalk. Her claim is that defendant was negligent with respect to the maintenance and ownership of the sidewalk and that this negligence caused her accident and resulting injuries. Defendant's answer includes an affirmative defense premised upon the lack of prior written notice of a defective condition, as required by chapter 186 of the Lake George Village Code, entitled Notification of Defects. This chapter states, in pertinent part:
No civil action shall be maintained against the Village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk, intersection or crosswalk being defective, out of repair, unsafe, dangerous or obstructed by overgrown vegetation or otherwise ... unless written notice of the defective, unsafe, dangerous or obstructed condition ... was actually given to the Village Clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of ... or the place otherwise made reasonably safe.
Presently before the Court is defendant's motion for summary judgment dismissing the complaint based upon, inter alia, the absence of prior written notice.
“It is well settled that where, as here, a municipality has enacted a prior written notice statute pertaining to its thoroughfares or sidewalks, it cannot be held liable unless such written notice of the allegedly defective or dangerous condition was actually given” (Gagnon v. City of Saratoga Springs, 51 AD3d 1096, 1097 [2008], lv denied 11 NY3d 706 [2008] ; see Stride v. City of Schenectady, 85 AD3d 1409, 1410 [2011] ; Smith v. Village of Hancock, 25 AD3d 975, 975 [2006] ; Dalton v. City of Saratoga Springs, 12 AD3d 899, 900 [2004] ). Here, defendant sustained its initial evidentiary burden by submitting the affidavit of its Village Clerk, who indicated that she conducted a search of the relevant records covering the period prior to the date of the accident and found no written notice of a defective condition corresponding to that alleged by the plaintiff (see Guimond v. Village of Keeseville, 113 AD3d 895, 896 [2014] ; Westbrook v. Village of Endicott, 67 AD3d 1319, 1319 [2009] ; Gagnon v. City of Saratoga Springs, 51 AD3d at 1097 ; Stride v. City of Schenectady, 85 AD3d at 1410 ; compare Goldberger v. Village of Kiryas Joel, 31 AD3d 496 [2006] ; Rupp v. City of Port Jervis, 10 AD3d 391, 392 [2004] ). Indeed, the absence of prior written notice is not disputed.
“The burden thus shifted to plaintiff[ ] to raise an issue of fact regarding the applicability of a recognized exception to the prior written notice requirement” (Gagnon v. City of Saratoga Springs, 51 AD3d at 1097 ; see Fuhrmann v. City of Binghamton, 31 AD3d 1036, 1037 [2006] ; Pagillo v. City of Oneonta, 25 AD3d 1044, 1044–1045 [2006], lv denied 7 NY3d 704 [2006] ). With that said, there exist two recognized exceptions to the prior written notice requirement: (1) where the municipality has created the defect through its affirmative negligence; or (2) where a special use of the property has conferred a special benefit upon the municipality (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 [1999] ; Dalton v. City of Saratoga Springs, 12 AD3d at 900 ). Here, plaintiff focuses on the first exception, relying upon the testimony of defendant's Superintendent of Public Works who establishes that at some time in the past defendant (I) laid the south side asphalt sidewalk on Mohican Street; (ii) selected an asphalt surface which is now considered a material inferior for sidewalks; and (iii) elected to use asphalt which is in contravention of its own Village Code. The Court is not provided with the Code referred to. The plaintiff also submits the affidavit of an expert in the uses and applications of asphalt in sidewalk construction.
This is unlike Guimond (supra) where the “expert opined that the raised area where plaintiff fell was an asphalt patch [and] that ... [a hazard] was created as soon as the patch was applied.” This expert offers no evidence that this use of asphalt “immediately result[ed] in the existence of a dangerous condition” that caused plaintiff's accident (Yarborough v. City of New York, 10 NY3d 726, 728 [2008] [internal quotation marks and citations omitted]; see Herzog v. Schroeder, 9 AD3d 669, 671 [2004] ). There is simply no evidence offered to suggest the Village created the defect. (Horan v. Town of Tonawanda, 83 AD3d 1565, (4th Dep't 2011) ; Santana v. City of New York, 56 AD3d 295, (1st Dep't 2008) ; Marshall v. City of New York, 52 AD3d 586, (2d Dep't 2008) ; Agrusa v. Town of Liberty, 291 A.D.2d 620, (3d Dep't 2002) )
Significantly, the plaintiffs's own expert infers the condition of the sidewalk was “caused by water, ice, snow and use resulting in heaving, cracking and breaking of the asphalt sidewalk.” This clearly is of no aid to plaintiff's cause as the affirmative negligence exception “is limited to work by the [municipality] that immediately results in the existence of a dangerous condition” (Oboler v. City of New York, 8 NY3d 888, 889 [2007], quoting Bielecki v. City of New York, 14 AD3d 301 [1st Dept 2005] ).
In this posture, with plaintiff having failed to raise a question of fact, summary judgment based upon the prior written notice provisions of the Village Code must be granted.
Briefly, inasmuch as plaintiff argues there are facts sufficient to find that defendant had constructive notice of the sidewalk condition prior to plaintiff's injuries, our jurisprudence recognizes no such exception to the prior written notice requirement as “[j]udicial recognition of a constructive notice exception would contravene the plain language of the statute and serve only to undermine the rule” (Amabile v. City of Buffalo, 93 N.Y.2d at 476 ; see Stride v. City of Schenectady, 85 AD3d at 1410 ).
The plaintiff's remaining contentions, to the extent not addressed herein, have been considered and found to be without merit.
Based upon the foregoing, defendant's motion for summary judgment is granted in its entirety and the complaint dismissed.
Therefore, having considered the Affirmation of Martin A. Cohen, Esq. with exhibits attached thereto, dated October 16, 2014, submitted in support of the motion; Affidavit of Darlene V. Gunther, sworn to October 15, 2014, submitted in support of the motion; Affirmation Daniel J. Hogan, Esq. with exhibits attached thereto, dated November 10, 2014, submitted in opposition to the motion; Affidavit of Brian O'Connor with exhibit attached thereto, sworn to November 4, 2014, submitted in opposition to the motion; Affidavit of Raymond Koch with exhibit attached thereto, sworn to November 6, 2014, submitted in opposition to the motion; and Reply Affirmation of Martin A. Cohen, Esq., dated November 14, 2014, it is hereby
ORDERED that defendant's motion for summary judgment is granted in its entirety and the complaint dismissed; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order is returned to counsel for defendant for filing and service with notice of entry. The Notice of Motion dated October 16, 2014 has been filed by the Court together with the above-referenced submissions.