Opinion
No. 2004X596.
2013-01-16
Kurtis R. MADDEN, a Minor, by his Mother and Natural Guardian, Wendy L. Madden and Wendy L. Madden, Individually, Plaintiffs, v. The TOWN OF GREENE, Dean Calice and Chris Freeman, Defendants.
Thorn Gershon Tymann and Bonanni, LLP by Arthur H. Thorn, Esq., Albany, for Plaintiffs. Lynch Law Office by Andrew J. Schwab, Esq., Syracuse, for Defendant Town of Greene.
Thorn Gershon Tymann and Bonanni, LLP by Arthur H. Thorn, Esq., Albany, for Plaintiffs. Lynch Law Office by Andrew J. Schwab, Esq., Syracuse, for Defendant Town of Greene.
PHILLIP R. RUMSEY, J.
Defendant moves for dismissal of the complaint, on the basis that plaintiff failed to timely file a notice of claim, or, alternatively, for an order precluding plaintiff from offering any proof that the guiderail was not of sufficient length, or that there was no guiderail in place where plaintiff's vehicle left the road. Plaintiffs oppose the motion and, alternatively, move for leave to amend their notice of claim.
Plaintiffs' only remaining claim is based on defendant's “alleged negligent failure to design and install a sufficient guiderail” (Madden v. Town of Greene, 64 AD3d 1117, 1119 [2009] ). Defendant argues that the design claim arose upon installation of the guiderail—a theory that it advanced in support of its previous motion seeking summary judgment dismissing plaintiffs' claims as barred by the statute of limitations. In a decision and order dated June 29, 2012 (the prior decision and order), the court rejected that argument, concluding that a cause of action for negligent highway design arises upon the happening of an accident ( see Madden v. Town of Greene, 36 Misc.3d 852, 854–856 [2012] ).
It bears noting that defendant neither moved to reargue the prior motion, nor did it perfect an appeal from the prior decision and order.
The time for filing a notice of claim and accrual of the cause of action arise on the happening of the same event ( cf.General Municipal Law § 50–e[1][a] [notice of claim must be served “within ninety days after the claim arises”] withGeneral Municipal Law § 50–i[1] [the statute of limitations runs from “the happening of the event on which the claim is based”] )—a point conceded by defendant ( see Affirmation of Andrew J. Schwab, Esq. dated September 19, 2012 [Schwab Affirmation], ¶ 59). For negligent highway design cases, that event is an accident. In that regard, the court's previous conclusion that a cause of action for negligent highway design accrues on the happening of an accident is further substantiated by the fact that—as noted by plaintiffs—the ninety day period for filing a notice of claim in highway design cases has routinely been calculated from the accident date ( see e.g. Matter of Cattrell v. Town of Brookhaven, 21 AD3d 896 [2005];Matter of Gillum v. County of Nassau, 284 A.D.2d 533 [2001],lv denied97 N.Y.2d 604 [2001];Matter of Resto v. City of New York, 240 A.D.2d 499 [1997],lv dismissed91 N.Y.2d 847 [1997];Morano v. County of Dutchess, 160 A.D.2d 690 [1990];Fenton v. County of Dutchess, 148 A.D.2d 573 [1989],lv denied74 N.Y.2d 608 [1989] ).
The cases that defendant cites in support of its argument are unpersuasive, because they do not involve actions for which a municipality owed a continuing duty to a plaintiff ( see Schwab Affirmation, ¶¶ 12 and 39, citing Smith v. Town of Long Lake, 40 AD3d 1381 [2007] [claim that negligent repaving of street caused diversion of excessive surface water onto adjoining property, resulting in property damage]; Sharpe v. Town of Conesus, 19 AD3d 1029 [2005] [claim that municipality negligently failed to supervise installation of a sewer line]; Scarzfava v. City of Newburgh, 255 A.D.2d 436 [1998] [claim that town employee was negligent in his inspection of property for compliance with the building code]; see also Madden, 36 Misc.3d at 856 n 4). All causes of action for negligence arise when a defendant allegedly breaches a duty owed to a plaintiff. In the cases cited by defendant, the municipalities had no continuing duty to plaintiff after completing the relevant acts. Thus, the breaches of duty occurred when the municipalities acted—by repaving the street, supervising installation of the sewer line, or inspecting the property. By contrast, as explained in the prior decision and order, a municipality has a statutorily-imposed continuing nondelegable duty to construct and maintain its roads in a safe condition, and, since that duty is continuing, it is breached when a plaintiff is injured as a result of a defective design ( see Madden 36 Misc.3d at 855–856). Accordingly, the conclusion that plaintiff's claim is not barred by the statute of limitations compels a determination on the present motion that the notice of claim served by plaintiffs on September 22, 2003—within ninety days of the accident—was timely.
Defendant alternatively seeks to preclude evidence regarding plaintiffs' assertion that the guiderail was defectively designed because it was not of sufficient length, on the basis that such claim was not asserted in the notice of claim.
“The test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the [town] to investigate' ( see, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358). Nothing more may be required' (Schwartz v. City of New York, [250 N.Y. 332, 335] ). Thus, in determining compliance with the requirements of General Municipal Law § 50–e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the accident (Purdy v. City of New York, [193 N.Y. 521, 524];Widger v. Central School Dist. No. 1, 18 N.Y.2d 646, 648).” Brown v. City of New York, 95 N.Y.2d 389, 393 (2000); accord Baker v. Town of Niskayuna, 69 AD3d 1016, 1017 [2010],quoting Brown. Here, the notice of claim contained sufficient facts to show the existence of a defective design claim and to enable defendant to fully investigate plaintiffs' claim. It provides a description of the accident, including the allegation that plaintiff's vehicle struck a portion of the guiderail, and alleges that the Town was negligent in failing to “have adequate guide rails in place” ( see Notice of Claim, ¶¶ 4, 6[b]; see also Cooke v. City of New York, 95 AD3d 537 [2012];Weed v. County of Orange, 82 AD3d 967 [2011];Williams v. Hooper, 82 AD3d 448, 455–456 [2011] ).
The determination that the notice of claim is sufficient with respect to plaintiffs' defective design claim renders plaintiffs' cross-motion for leave to amend their notice of claim moot. However, it bears noting that General Municipal Law § 50–e(6) provides that any mistake, omission or irregularity in a notice of claim may be corrected, supplied or disregarded in the court's discretion, provided that the mistake or omission was made in good faith and caused no prejudice to the public corporation. In their notice of claim, plaintiffs asserted that defendant was negligent in failing to have an adequate guiderail in place. Design of the guiderail has been at issue throughout this entire case and the details of plaintiffs' design claim were developed in good faith as the case progressed through expert opinion obtained by both parties. Defendant's prior submissions show that it has had the opportunity to fully investigate plaintiffs' claim that the guiderail was of insufficient length; accordingly, there has been no prejudice to defendant ( see decision and order dated March 17, 2011, pp. 3–5; see also Affidavit of Erin Mead, Esq., sworn to October 22, 2012, Exhibit E [Affidavit of Wallace J. Ochterski, P.E., sworn to July 9, 2007] ). In addition, defendant's long delay in moving to dismiss the complaint on the basis that the notice of claim was defective—coming eight years after commencement—further undermines any claim of prejudice ( see Palmieri v. New York City Tr. Auth., 288 A.D.2d 361 [2001] ).
Finally, it bears noting that defendant's present motion is the latest in a pattern of patently improper motion practices that has finally exhausted the court's patience. By notice of motion dated May 3, 2011, defendant moved to reargue this court's order dated March 17, 2011, with respect to the statute of limitations issue, and also for leave to file a late motion seeking summary judgment dismissing the action on the same basis. While decision on that motion was pending, defendant filed a notice of motion dated May 23, 2011 yet again seeking leave to file a late summary judgment motion dismissing the action based on its statute of limitations defense. As noted in the prior decision and order, defendant's explanation for its extensive delay in seeking leave to file a late summary judgment motion was inherently contradictory and was inconsistent with both defendant's own prior submissions and decisions that had been previously rendered ( see prior decision and order, pp. 6–7). Inasmuch as defendant's present motion to dismiss would have disposed of the action, if granted, it was effectively yet a fourth untimely attempt to seek summary judgment on timeliness grounds ( see e.g. Matter of Singer, 99 AD3d 802 [2012];Ofman v. Ginsberg, 89 AD3d 908 [2011] ).
Defendant's present motion also recycles arguments that this court specifically considered and rejected in the prior decision and order, which—in light of the fact that defendant neither moved to reargue the prior motion nor timely perfected an appeal from the resulting order—constitutes the law of the case. Indeed, defendant's counsel concedes that “[s]hould the Court adhere to, and apply its reasoning on the prior Statute of Limitations motion to this motion on the Notice of Claim issue, this motion must, likewise, fail” (Schwab Affirmation, ¶ 60). Repeated motions seeking consideration of issues that have already been resolved against the movant may be a basis for imposing sanctions ( see Fitzsimmons v. Pryor Cashman LLP, NYLJ 1202578472657 [App.Div., First Dept 2012] [sanction of $21,270 was imposed on defendant law firm for filing a second motion seeking substantially the same relief that had been denied in its first motion]; see also Ferran v. Williams, 281 A.D.2d 819 [2001],lv dismissed97 N.Y.2d 653 [2001];William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22 [1992],lv denied, lv dismissed80 N.Y.2d 1005 [1992] ). Accordingly, defendant's counsel are advised that any further motions related to any matters or issues previously determined in this action may subject them to sanctions pursuant to Rules of the Chief Administrator (22 NYCRR) Part 130.
Based on the foregoing, defendant's motion is denied in its entirety; plaintiff's cross-motion is dismissed as moot; and plaintiffs are awarded motion costs in the maximum amount of $200, consisting of $100 each for the motion and the cross-motion ( seeCPLR 8106; CPLR 8202).
This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.